Hamilton County Municipal Court

HAMILTON COUNTY MUNICIPAL COURT

HAMILTON COUNTY, OHIO

State of Ohio / : / CASE NO.: C 12 TRC 41730 ABC
PLAINTIFF / : / JUDGE: Grant
-vs- / :
«defendant»,
DEFENDANT / :
: / MOTION IN LIMINE TO EXCLUDE
PBT AND REFERENCES TO

Now comes «defendant», by and through counsel, and requests this court to issue an order removing or redacting a portion of the recorded interaction between the Defendant and {FILL IN OFFICER} which occurred on {DATE and LOCATION}.

FACTS

{FILL IN}

MEMORANDUM

The results of a Portable Breath Test (PBT) and any subsequent comments regarding the PBT results are inadmissible. The PBT is not recognized as an approved instrument by the Ohio Department of Health. Ohio Adm.Code 3701-53-02.Moreover, the PBT is unreliable. State v. Shuler, 168 Ohio App. 3d 183, 858 N.E.2d 1254 (2006).In Shuler, the Fourth District Court of Appeals affirmed the trial court’s decision to deny the defendant’s motion to admit the results of a PBT. The court held:

“The results yielded by PBT devises are not amongst those listed in Ohio Adm. Code 3701-53-02 as approved evidential breath testing instruments for determining the concentration of alcohol in the breath of individuals potentially in violation of R.C. 4511.19. PBT results are considered inherently unreliable because they “may register an inaccurate percentage of alcohol in the breath, and may also be inaccurate as to the presence or abscense of any alcohol at all.”See Iowa v. Zell (1992), 491 N.W2d 196, 197. PBT devices are designed to measure the amount of certain chemicals in the subject’s breath. The chemicals measured are found in consumable alcohol, but are also presentin industrial chemicals and certain non-intoxicating over the counter medications. They may also appear when the subject suffers from illnesses such as diabetes, acid reflux disease, or certain cancers. Even gasoline containing ethyl alcohol on a driver’s clothes or hands may alter the result. Such factors can cause PBTs to register inaccurate readings, such as false positives…This lack of evidential reliability provides a basis for excluding PBT results from admissibility at trial.”

Shuler at ¶ 10.

Several courts have even prohibited the State from relying on a PBT in probable cause hearings. In State v. Delarosa, the Court held that a PBT is not admissible at a motion to suppress hearing because the Ohio Department of Health does not recognize the PBT as a valid breath testing instrument.State v. Delarosa, 11th Dist. Portage No. 2003-P-0129, 2005-Ohio-3399.

Therefore, the Defendant asks this Court to edit the recording of the incident by removing any reference regarding the PBT test and its results.

Respectfully Submitted,
______
«attorney», # «osc_number»
Attorney for Defendant
«address1»
«city», «state»«zip»
«phone»

CERTIFICATE OF SERVICE

I hereby certify that a copy of this document was served upon the Hamilton County Prosecutor/City of Cincinnati Prosecutor on ______by:

 Ordinary Mail Fax Hand Delivery  Dedicated Drop Box

______

Attorney for Defendant

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