Category: Breath Testing

Don’t Volunteer Evidence – You Have Rights! Use Them!

00Breath Testing, Illegal Police StopsTags: , , , , , , , , ,

tipp city oviA typical DUI/OVI stop starts with a probable cause traffic stop.  Depending on the time of day, the location or the way you are driving, the officer may begin the encounter believing that you are possibly “19” (police shorthand for a possible R.C. 4511.19 (DUI) violation). Probable cause for the stop can be anything from severe weaving or crashing all the way down to something as de minimus as a license plate light out.  The officer’s true purpose in pulling you over cannot be questioned if there is even a minor violation of law.

The officer will observe the way you pull over and will approach the vehicle with caution. Always keep your hands where the officer can see them and avoid furtive movements.  When the officer asks “do you know why I pulled you over?” what do you say? When the officer asks if you have been drinking, what do you say? If the officer asks you if you are willing to take some roadside tests, what do you say? Always begin every police encounter by asserting your rights, “I DO NOT WANT TO ANSWER QUESTIONS AND I WANT TO SPEAK TO AN ATTORNEY.”

When you are pulled over for a traffic infraction the police officer has no evidence that you may be driving under the influence. Once you are stopped, the officer begins gathering evidence against you for OVI/DUI.  If you do not give him the evidence I can win a charge of DUI/OVI. And there is only one way for the officer to obtain evidence: You must give it to him! Examples are letting the officer engage you in conversation. By doing this he hears your speech hears your thought processes and begins to build his case. He smells your breath. During the process he also views your eyes to see if they are red, bloodshot, or watery.  The officer will also ask you for your license, insurance and registration. He is doing this to see if you fumble through your belongings, thereby demonstrating lack of dexterity.  Have these papers ready at hand anytime you are in the car. Have them waiting for the officer on the dash.

At this point, the officer must determine if he has enough evidence to remove you from the vehicle.  If he believes he does, he will ask you to take standardized field sobriety tests. There is no legal obligation or requirement to perform these tests. Do not take Field Sobriety Tests! Finally, do not be a knucklehead to the officer. Be polite and courteous even if you do not receive the same treatment as most encounters are recorded. Do not argue or try to justify your conduct as all of this will be used against you. Once the officer decides to arrest you there is nothing you can do to avoid the arrest.  Let me handle that for you later!

 

To blow or not to blow, that is the question. Unfortunately, the answer is “maybe” and involves a very complicated investigation of the facts of your case and your personal history. You should NEVER refuse the test without understanding how a refusal would affect YOU. No attorney can know all of the circumstances of your arrest and your personal history, always ask to speak to an attorney when making this decision.

Can you answer “TRUE” to ALL of the following questions? If so, you can politely DECLINE any police test(s) of your blood, breath, or urine with minimum impact. Be prepared and know your rights.

  • I am an Ohio license holder, 21 years or older; AND
  • I was not involved in an accident involving possible death or to serious injury to ANYBODY, even members of my family, pedestrians or passengers; AND
  • I do not have a commercial driver’s license (CDL); AND
  • No matter where I currently have a license to drive, I have had no prior drunk driving convictions or deferred pleas for DUI in ANY state within 6 years (from the date of conviction until now).
  • Refusing a chemical test can result in harsh penalties which includes a one-year license suspension, but your attorney can fight to get this reduced. In some courts your refusal may be held strictly against you and in others you may be able to get a reduced suspension despite your refusal. In State v. Hill, 2009-Ohio-2468, the Appellate Court upheld the right of a trial court to enhance a penalty based on a refusal to take the chemical test. In most circumstances, a refusal to take a chemical test will result in a longer hard-time suspension (30 days rather than 15 days without any driving privileges). [see the Automatic License Suspension section of this blog]. You should also engage in an honest assessment of your alcohol consumption. If you risk testing over Ohio’s “super-OVI” threshold (over a .17% BAC) you may do harm by taking the test. Take these factors into account when making your decision to blow or not to blow.

Any criminal defense attorney would rather have less evidence against you rather than more, but giving blanket advice to refuse the chemical test is a mistake. Be prepared to make the best decision for you. You can also plan ahead by storing my contact information in your smart phone: (937)776-2671.

alcohol affects

How Alcohol Affects The Human Body

00Blood & Urine Tests, Breath TestingTags: , , , , , , , , ,

affects of alcoholThe pharmacodynamic properties of alcohol classify it as a central nervous system depressant. The more alcohol you consumed the greater its effects. Alcohol impairs both cognition (the process of knowing, thinking, learning and judging) and psychomotor skills (voluntary movement).  If you think of the evolution of the brain, the affects of alcohol are felt by the most recently developed parts of the brain. These parts of the brain are responsible for judgment, inhibition, personality, intellectual and emotional states. If you continue to drink, your psychomotor functions such as muscular coordination, balance, eye movement, etc. will be impaired. Continue to drink and involuntary movement, such as respiration, is affected, leading to possible coma or death by alcohol poisoning.

Law enforcement relies on tasks requiring divided attention skills as these are specifically sensitive to alcohol. The Committee on Alcohol and Other Drugs of the National Safety Council concluded that all individuals are impaired with respect to operating a motor vehicle at alcohol concentrations of 0.08 and above, while some individuals are impaired with respect to driving at concentrations below 0.08.  Interestingly, the impairment at this level has only been scientifically correlated to performance on the standardized field sobriety tests by one questionable study. HERE For a critique of the science behind the standardized field sobriety tests, check HERE.

Alcohol elimination occurs through metabolism, excretion and evaporation. Metabolism accounts for approximately 95% of elimination. Enzymes act on alcohol molecules to change them into other compounds; these by-products are further metabolized. Alcohol dehydrogenase (ADH) in the liver is the enzyme that is primarily responsible for alcohol metabolism. ADH is also located in the stomach lining, causing a small portion of an alcohol dose to be eliminated before it has a chance to be absorbed. The average rate of elimination (combining metabolism, excretion and evaporation) is between 0.015 to 0.018% per hour.

To see the source of this information, please visit the links provided. You can also find supporting information HERE.

 

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Ohio OVI: What Are The Legal Limits?

00Blood & Urine Tests, Breath TestingTags: , , , , , , , , , , ,

In Ohio, an OVI refers to the charge of operating a vehicle while impaired by drugs or alcohol.  If your Blood Alcohol Content (BAC) and breath alcohol content (BrAC) is .08 or greater, you are considered to be “operating a vehicle impaired.” The .08 figure refers to the concentration of alcohol in your breath or in your blood.  There are also “legal limits” for the concentration of alcohol in a person’s blood serum or plasma and urine. For a urine sample, you will be over the “legal limit” if the alcohol concentration in your urine sample is .11 or greater.

Ohio OVIWhile Ohio still considers this a valid way to determine alcohol content, many states have done away with urine testing because handling and testing procedures have produced errors. If a blood serum or plasma sample is taken, the legal limit is .096. A test of blood, whether whole blood, serum or plasma, is the most accurate, but such tests must be completed according to Department of Health rules to be admissible in a court proceeding. Also, improper blood testing procedures still may yield inaccurate results.

There are also enhanced minimum penalties for “high tier” or “Super OVI” results. The high tier test results are .17 for breath and blood, .204 for blood serum or plasma, and .238 for urine. The enhanced penalties for “high tier” offenders double the minimum jail time requirement.

If you find yourself facing an Ohio OVI you need to speak to an attorney right away! Call DaytonDUI at (937) 318-1384.

Arrested for OVI? Should You Blow?

00Breath Testing, Illegal Police StopsTags: , , , , , , , , ,

should i blowWhen you are stopped on suspicion of DUI the question becomes – “Should I Blow?” Unfortunately, the answer is “maybe” and involves a very complicated investigation of the facts of your case and your personal history. You should NEVER refuse the test without understanding how a refusal would affect YOU. No attorney can know all of the circumstances of your arrest and your personal history, always ask to speak to an attorney when making this decision.

Can you answer “TRUE” to ALL of the following questions? If so, you can politely DECLINE any police test(s) of your blood, breath, or urine with minimum impact. Be prepared and know your rights.

  • I am an Ohio license holder, 21 years or older; AND
  • I was not involved in an accident involving possible death or to serious injury to ANYBODY, even members of my family, pedestrians or passengers; AND
  • I do not have a commercial driver’s license (CDL); AND
  • No matter where I currently have a license to drive, I have hadno prior drunk driving convictionsor deferred pleas for DUI in ANY state within 6 years (from the date of conviction until now).

Refusing a chemical test can result in harsh penalties which includes a one-year license suspension and a longer period of time before you can get driving privileges.   Your attorney can fight to get this reduced. In some courts your refusal may be held strictly against you and in others you may be able to get a reduced suspension despite your refusal. In State v. Hill, 2009-Ohio-2468, the Appellate Court upheld the right of a trial court to enhance a penalty based on a refusal to take the chemical test. In most circumstances, a refusal to take a chemical test will result in a longer hard-time suspension (30 days rather than 15 days without any driving privileges). [see the Automatic License Suspension section of this blog]. You should also engage in an honest assessment of your alcohol consumption. If you risk testing over Ohio’s “super-OVI” threshold (over a .17% BAC) you may do harm by taking the test. Take these factors into account when making your decision to blow or not to blow.

Should I blow, Now you know! Any criminal defense attorney would rather have less evidence against you rather than more, but giving blanket advice to refuse the chemical test is a mistake. Be prepared to make the best decision for you. You can also plan ahead by storing my contact information in your smart phone: (937)776-2671.

Intoxilyzer 8000

Intoxilyzer 8000 Biased Against Americans

00Breath TestingTags: , , , , ,

The Intoxilyzer 8000 is used in Europe under the brand name Lion.  On their website [HERE] they describe the process of breath alcohol physiology.  There is one glaring difference however. They use a 2300:1 ratio instead of a 2100:1 ratio.  So?

Example:
If you blew a into the Lion (Intoxilyzer) 8000 with of 2300: 1 partition ratio, and the machine reported BrAC results of .070 then you blew into the machine with a 2100: 1 partition ratio you would be .080 or higher. (thanks to DUIstopped.us for this example).

If this is true, it means that machines in the US are more biased than those in other parts of the world.  This means that the United States is willing to subject more of its citizens to arrest, conviction, loss of job, driving license suspension, and JAIL because they tilt the breath test in favor of the government.

If people ever wonder why I practice DUI defense, this is it!

The basis for this article is an article on the Intoxilyzer 8000 published at the DUIStopped.us Facebook page. Sources are there and on the Lion page published herein.