Yes. It can.
Because of this, all Columbus officers are required to have a driver spit out any chewing gum, chewing tobacco or other foreign substance and then observe the driver for 20 minutes before administering a breath test. During that 20 minute period, the officer is supposed to ensure the driver does not put anything foreign in his or her mouth.
This issue recently came up in State v. Smart, 2015-Ohio-3537.
In that case, the trooper stopped the driver for following too closely to the vehicle in front of him. Upon investigation, the trooper administered field sobriety tests and a breathalyzer test.
The result of the breathalyzer test was .147. The driver was charged with OVI (operating a motor vehicle while under the influence) and following too closely in violation of R.C. 4511.34.
Motion to Suppress
The defendant’s attorney filed a motion to suppress, challenging the stop and the improper administration of the field sobriety and breathalyzer tests.
He argued that the breath result should be suppressed because the driver was chewing tobacco within 20 minutes of administering the breathalyzer test.
He argued that the state didn’t prove that he had not chewed tobacco or “snuff” within twenty minutes of the administration of the test, and that the trooper failed to observe him for the required twenty minute period prior to the administration of the test.
Under Ohio Adm.Code 3701-53- 02, an officer is required to observe a driver for 20 minutes prior to administration of the breath test.
The cruiser video showed that the officer had, in fact, observed the driver for the full 20 minutes after he spit out the chewing tobacco prior to giving him the breath test.
The question in the case was whether the officer had to do some kind of “mouth check” to make sure the driver did not have any residual juice or tobacco pieces in his mouth.
The judge found that the the Ohio Administrative Code does not go so far as to require a mouth-check for “juices and residual tobacco pieces.” Having the driver spit out the foreign substance, then observing for 20 minutes prior to administering the breath test is sufficient under Ohio law.