Posts Tagged ‘Blood alcohol content’

How To Get Your License Back

May 14th, 2014

get your license backOften, the most pressing question in a DUI arrest is how to get your license back!

If you are stopped for an OVI, DUI or drunk driving and you refuse to take a chemical test (breathblood or urine), or if your test results exceed the legal limit of Blood Alcohol Concentration (BAC), the police officer can and will take your driver’s license on the spot causing your drivers license to be suspended immediately.  This pre-conviction suspension is called the ADMINISTRATIVE LICENSE SUSPENSION. The ALS is a suspension imposed by the Ohio Bureau of Motor Vehicles and not a suspension imposed by the court.  A court may not grant driving privileges for a certain period of time following the imposition of an ALS. O.R.C. 4510.13(A).  The amount of time between the imposition of the ALS suspension and the time you are eligible for limited driving privileges is called “hard time.”  How long the hard time lasts depends upon whether the person has any prior offenses and whether or not the person took the test or refused the test. Speak to your attorney at your initial consultation about how and when you will get your license back.

First Offense Midemeanor OVI Failed Chemical Test R.C. 4511.191(C): Occupational driving privileges cannot be granted during the following periods in test cases:

  • First 15 days of suspension on a first offense
  • First 30 days of suspension on a person who had a prior OVI or refusal within 6 years.
  • First 180 days for a person who has had 2 prior OVI/refusals within 6 years.
  • First 3 years of suspension on a person who had 3 or more previous OVI/refusals within 6 years

First Offense Misdemeanor OVI Refusal R.C. 4511.19(B): Occupational driving privileges cannot be granted during the following periods in refusal cases:

  • First 30 days of suspension on a first offense.
  • First 90 days of suspension on a person who had a previous refusal within 6 years.
  • First year of suspension on a person who had 2 previous refusals within 6 years.
  • First 3 years of suspension on a person who had 3 previous refusals within 6 years.
  • A person, who within the preceding 7 years, has been convicted of or pleaded guilty to 3 or more OVI violations cannot be granted limited privileges.

One of the first conversations you should have with your OVI lawyer will involve wether or not grounds exist for an appeal of the ALS.  You will discuss the limited circumstances under which an Administrative License Suspension can be challenged.  The court must hold the administrative license suspension hearing within five days of arrest.  You only have 30 days from your arraignment to file an appeal of the Administrative License Suspension. The scope of appeal is confined to four issues:

 1. Was your arrest based on reasonable grounds? 

2. Did the officer request that you to take a test? 

3. Were you made aware of the consequences if you refused or failed the test? 

4. Did you refuse or fail the test?

Charles M. Rowland II is familiar with the case law relevant to determining if an ALS appeal would be beneficial in your case.  He will check to see if the 2255 form (the yellow piece of paper you were given) was notorized.  The BMV must receive a notarized sworn copy of the 2255.  If the form is not executed as required by law, then he can bring that to the court’s attention and request that the ALS be terminated or stayed.  It is important to discuss whether or not you were able to produce the requested sample.  If you have a verifiable medical condition the Administrative License Suspension may not be plausible in your case.  No matter what the circumstances, Charles M. Rowland II will help secure you limited driving privileges for work or for school after the HARD TIME has passed.

Much confusion is caused by the fact that the Administrative License Suspension is a pre-trial suspension generated by the Ohio Bureau of Motor Vehicles.  The warnings given by the arresting officer are misleading.  Often a client will come to our office under the misimpression that the worst case scenario will be a 90 day suspension.  If our client refused a chemical test, they believe they are condemned to a one year suspension.  This is not usually the case.  Upon a plea to a reduced charge (such as Reckless Operation) or to an OVI,  the Administrative License Suspension will be terminated and the court will impose its own suspension.   The minimum mandatory suspension for a first OVI offense is six months.  This will horrify the person who believed that they were facing 90 days, but a welcome relief to people who thought they were going to have a one year suspension.

According to the Ohio BMV, the ALS Refusal Suspension will be terminated by the registrar upon notice that:

  • The person entered a plea of guilty to OVI and the refusal suspension arose from the same incident.
  • The person entered a plea of no contest to OVI, was found guilty and the refusal suspension arose from the same incident.

To make matters even more confusing, any suspension ordered by the Court is given a “class” numerical representation and any suspension given by the Ohio Bureau of Motor Vehicles is given a “letter” designation.  Here are the lists of the different “CLASSES” of suspensions in Ohio. See R.C. 4510.02(A) and R.C. 4510.02(B).

COURT SUSPENSIONS

  • Class 1: Lifetime
  • Class 2: 3yrs to life
  • Class 3: 2 – 10yrs
  • Class 4: 1 – 5yrs
  • Class 5: 6mos. – 3yrs.
  • Class 6: 3mos – 2yrs.
  • Class 7: “a definite period” – 1yr

BMV SUSPENSIONS (Note: all for a fixed length)

  • Class A: 3 yrs
  • Class B: 2 yrs
  • Class C: 1 yr
  • Class D: 6 mos
  • Class E: 3 mos
  • Class F: until conditions are met

It is advisable that you speak with Charles Rowland at the imposition of your suspension as many courts offer programs (at little or no cost) that help you get valid.

If you need to get your license back, contact Charles M. Rowland immediately! OVI Attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in the Miami Valley and throughout Ohio.  He has the credentials and the experience to win your case and has made himself Dayton’s choice for drunk driving defense. Contact Charles Rowland by phone at (937) 318-1384 or toll-free at 1-888-ROWLAND (888-769-5263). If you need assistance after hours, call the 24/7 DUI Hotline at (937) 776-2671.  You can have DaytonDUI at your fingertips by downloading the DaytonDUI Android App or have DaytonDUI sent directly to your mobile device by texting DaytonDUI (one word) to 50500.  Follow DaytonDUI on Facebook, @DaytonDUI on Twitter, YouTube, Tumblr, Pheed and Pintrest or get RSS of the Ohio DUI blog.  You can emailCharlesRowland@DaytonDUI.com or visit his office at 2190 Gateway Dr., Fairborn, Ohio 45324.  “All I do is DUI defense.”

 For information about how to get your license back  and other  information and other city-specific info at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburgSpringboro,Huber HeightsOakwoodBeavercreekCenterville

Driving Privileges in The Vandalia Municipal Court

May 6th, 2014

How can I obtain ALS driving privileges if my case is in the Vandalia Municipal Court?ALS Driving Privileges in the Vandalia Municipal Court  If you are stopped for an OVI, DUI or drunk driving and you refuse to take a chemical test (breathblood or urine), or if your test results exceed the legal limit of Blood Alcohol Concentration (BAC), the police officer can and will take your driver’s license on the spot causing your drivers license to be suspended immediately.  This pre-conviction suspension is called the ADMINISTRATIVE LICENSE SUSPENSION. The ALS is a suspension imposed by the Ohio Bureau of Motor Vehicles and not a suspension imposed by the court.  A court may not grant ALS driving privileges for a certain period of time following the imposition of an ALS. O.R.C. 4510.13(A).  The amount of time between the imposition of the ALS suspension and the time you are eligible for limited ALS driving privileges is called “hard time.”  How long the hard time lasts depends upon whether the person has any prior offenses and whether or not the person took the test or refused the test.

If your misdemeanor OVI arrest took place within the jurisdiction of the Vandalia Municipal Court, you can download a petition for ALS driving privileges HERE.

A court may not grant ALS driving privileges for a certain period of time following the imposition of an ALS. O.R.C. 4510.13(A).  The amount of time between the imposition of the ALS suspension and the time you are eligible for limited ALS driving privileges is called “hard time.”  How long the hard time lasts depends upon whether the person has any prior offenses and whether or not the person took the test or refused the test.

First Offense Midemeanor OVI Failed Chemical Test R.C. 4511.191(C): Occupational driving privileges cannot be granted during the following periods in test cases:

  • First 15 days of suspension on a first offense
  • First 30 days of suspension on a person who had a prior OVI or refusal within 6 years.
  • First 180 days for a person who has had 2 prior OVI/refusals within 6 years.
  • First 3 years of suspension on a person who had 3 or more previous OVI/refusals within 6 years

First Offense Misdemeanor OVI Refusal R.C. 4511.19(B): Occupational driving privileges cannot be granted during the following periods in refusal cases:

  • First 30 days of suspension on a first offense.
  • First 90 days of suspension on a person who had a previous refusal within 6 years.
  • First year of suspension on a person who had 2 previous refusals within 6 years.
  • First 3 years of suspension on a person who had 3 previous refusals within 6 years.
  • A person, who within the preceding 7 years, has been convicted of or pleaded guilty to 3 or more OVI violations cannot be granted limited privileges.

One of the first conversations you should have with your OVI lawyer will involve wether or not grounds exist for an appeal of the ALS.  You will discuss the limited circumstances under which an Administrative License Suspension can be challenged.  The Vandalia Municipal Court must hold the administrative license suspension hearing within five days of arrest.  You only have 30 days from your arraignment to file an appeal of the Administrative License Suspension. The scope of appeal is confined to four issues:

 1. Was your arrest based on reasonable grounds? 

2. Did the officer request that you to take a test? 

3. Were you made aware of the consequences if you refused or failed the test? 

4. Did you refuse or fail the test?

Charles M. Rowland II is familiar with the case law relevant to determining if an ALS appeal would be beneficial in your case.  He will check to see if the 2255 form (the yellow piece of paper you were given) was notorized.  The BMV must receive a notarized sworn copy of the 2255.  If the form is not executed as required by law, then he can bring that to the court’s attention and request that the ALS be terminated or stayed.  It is important to discuss whether or not you were able to produce the requested sample.  If you have a verifiable medical condition the Administrative License Suspension may not be plausible in your case.  No matter what the circumstances, Charles M. Rowland II will help secure you limited ALS driving privileges for work or for school after the HARD TIME has passed.

If you need to obtain ALS driving privileges in the Vandalia Municipal Court, contact Charles M. Rowland immediately! OVI Attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in the Miami Valley and throughout Ohio.  He has the credentials and the experience to win your case and has made himself Dayton’s choice for drunk driving defense. Contact Charles Rowland by phone at (937) 318-1384 or toll-free at 1-888-ROWLAND (888-769-5263). If you need assistance after hours, call the 24/7 DUI Hotline at (937) 776-2671.  You can have DaytonDUI at your fingertips by downloading the DaytonDUI Android App or have DaytonDUI sent directly to your mobile device by texting DaytonDUI (one word) to 50500.  Follow DaytonDUI on Facebook, @DaytonDUI on Twitter, YouTube, Tumblr, Pheed and Pintrest or get RSS of the Ohio DUI blog.  You can emailCharlesRowland@DaytonDUI.com or visit his office at 2190 Gateway Dr., Fairborn, Ohio 45324.  “All I do is DUI defense.”

 For information about ALS driving privileges in the Vandalia Municipal Court and other  information and other city-specific info at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburgSpringboro,Huber HeightsOakwoodBeavercreekCenterville

Changes To Ohio’s Field Sobriety Test Manual – Part One

January 16th, 2014

field sobriety testOhio has adopted a new Field Sobriety Test manual as of 2013.  This post is part of a multi-article look at the Field Sobriety Test manual changes.

1. Let’s Change The Name

The first change to the Field Sobriety Test manual is the name.  Prior to this year the training class for law enforcement officers studying the Field Sobriety Test regimen was called A.D.A.P. (Alcohol and Drug Awareness Program) and used the National Highway Traffic Safety Administration “manual.”  The new class will simply be called Field Sobriety Test or SFST class and will use a “guide.”

Remaining from the previous training materials is the familiar “Session” approach allowing instructors to focus the students on different aspects of DUI enforcement. The structure of the “guide” incorporates training slides and the overall look of the information from a book-type format to a Power-Point layout.  The Field Sobriety Test Guide also incorporates new information on “Drugged Driving.”  Students taking the Field Sobriety Test class will now be required to complete a four hour block on Drugged Driving designated for it to be added to the Police Officer Basic Training Curriculum.

If there is one overriding takeaway that you can take away from the changes to the Field Sobriety Test Guide, it is that there is going to be a major focus on driver’s suspected of being impaired by illegal drugs, prescription drugs, alcohol and/or a combination of all of these substances.  Let’s begin by taking a look at the changes to Session One.

2. Changes To Session One

The introductory material contained in Session One updates the previous 2008 data and statistical information with 2010 and 2011 information using the NHTSA Fact Sheets and Substance Abuse and Mental Health Services Administration Data.

3. Changes To Session Two

The definitions and data related to “alcohol-related crash” was revised to read: “Alcohol-impaired crash so as to be consistent with NHTSA.  It refers to a driver with a .08 percent BAC or higher.  The Guide also reflects that all states now have a .08 percent BAC limit.  It changes the word “many” to “all” when referring to states with a .08 DWI limit.  Additional alcohol facts are added to reflect the most current statistics and the involvement of high BAC drivers.  The Guide revises the information on traffic fatalities, changing the Guide to say that a traffic fatality occurs every 51 minutes.  The Source for this information is listed as the NHTSA Traffic Safety Facts, 2010 Data, Alcohol Impaired Driving, DOT HS 811 606, April 2012.  They also add, In 2010, 28 percent of all fatalities on motorcycles, the operator had a BAC of .08 percent or higher; and, In 2010, 25-34 year olds constituted 34 percent of all alcohol-impaired driving fatalities in the U.S. citing NHTSA Traffic Safety Facts, 2010 Data, Alcohol Impaired Driving, DOT HS 811 606, April 2012.

4. Changes To Session Three

Session Three of the Field Sobriety Test Guide was changed to include major court decisions regarding the admissibility of the Horizontal Gaze Nystagmus.  More details were added regarding the adoption of illegal per se laws by the various states. Again, this is a focus on preparing officers to make arrests for alcohol and drugs.

5. Changes To Session Four

No major changes.  Additional slides were added concerning note-taking and report writing.

6. Changes To Session Five

Throughout the Field Sobriety Test training, the acronym “DUI” was changed to “DWI” to be consistent throughout the training guide. Changes were also made to include more information about a vide called “Sliding Sports Car.”  This information is included to allow instructors to solicit information from students regarding the driving and stopping sequence.

7. Changes To Session Six

Again, a name change.  The term “roadblock” was removed and replaced with the word “checkpoint.”  We also see a description and additional information about the training video “Busy Businessman.”

There were no major revisions to Sessions IX, X, XI, XII, or XIV except the removal of any mention of the excised training video “Extras.”  Otherwise, no significant changes were made.  As you may recall from my previous articles, the NHTSA author’s have decided to take out one of the basic factual components of the entire Standardized Field Sobriety Test scheme – the preface.  Yep, that’s right; the preface has been targeted for change.  Recall the following preface to the most recent NHTSA manual.

The procedures outlined in this manual describe how the Standardized Field Sobriety Tests (SFSTs) are to be administered under ideal conditions. We recognize that the SFSTs will not always be administered under ideal conditions in the field, because such conditions will not always exist. Even when administered under less than ideal conditions, they will generally serve as valid and useful indicators of impairment. Slight variations from the ideal, i.e., the inability to find a perfectly smooth surface at roadside, may have some affect on the evidentiary weight given to the results. However, this does not necessarily make the SFSTs invalid.

Why target the preface?  It is this author’s opinion that the preface was being used by DUI defense attorneys to place the Standardized Field Sobriety Tests in proper context before the jury in DUI prosecutions.  Just like other areas, the government would rather hide behind words rather than give attorneys defending citizens’ freedom something that has proven to aid jurors in laying bear the problems with these tests. Now more than ever, it is important to have an attorney who understands what they are doing and why they are doing it.  Sadly, many attorneys will never know of the change and more innocent people will be convicted based on pseudo-scientific stupid human tricks.

Please check back as my review of the changes to the NHTSA Guide will continue.

Ohio DUI attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in the Miami Valley and throughout Ohio.  He has the credentials and the experience to win your case and has made himself Dayton’s choice for drunk driving defense. Contact Charles Rowland by phone at (937) 318-1384 or toll-free at 1-888-ROWLAND (888-769-5263). If you need assistance after hours, call the 24/7 DUI Hotline at (937) 776-2671.  You can have DaytonDUI at your fingertips by downloading the DaytonDUI Android App or have DaytonDUI sent directly to your mobile device by texting DaytonDUI (one word) to 50500.  Follow DaytonDUI on Facebook, @DaytonDUI on Twitter, YouTube, Tumblr, Pheed and Pintrest or get RSS of the Ohio DUI blog.  You can email CharlesRowland@DaytonDUI.com or visit his office at 2190 Gateway Dr., Fairborn, Ohio 45324.  “All I do is DUI defense.”

 Find information on the standardized field sobriety test Guide and other city-specific info at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburgSpringboro,Huber HeightsOakwoodBeavercreekCenterville

MADD and NHTSA Push For Expanded Use of Ignition Interlock Devices

December 30th, 2013

 ignition-interlock

Mothers Against Drunk Driving and their government partners at the National Highway Traffic Safety Administration want 2014 to be the year that all states expand the use of ignition interlock devices to include anyone convicted of a drunk driving offense.

Currently, ignition interlock devices are used in all 50 states and the District of Columbia. However, states vary widely in how the ignition interlock devices are used and which drivers are required to install them. In West Virginia, for example, interlock devices are only ordered at a judge’s discretion while Michigan mandates their use for drivers who are found with a BAC more than twice the state’s legal limit.  In Ohio, ignition interlock devices are required for any driver accused of a second OVI (drunk driving) offense and are otherwise discretionary to the judge.  NHTSA and MADD want to eliminate these discrepancies and urge the adoption of a model rule which covers first-time offenders with a BAC just over the legal limit and would require the installation of ignition interlock devices on hundreds of thousands more vehicles.  Currently, only 20 states require the devices for anyone convicted of a drunken driving-related offense.

Studies show that ignition interlock devices are about 75 percent effective in keeping those previously convicted of drunken driving from repeating their behavior. While there are numerous different designs, the typical ignition interlock requires the driver to blow into a tube that measures breath alcohol levels. If a person fails he or she may try again, for up to three attempts before the vehicle is locked down.  Other versions may also use cameras to record a person’s behavior behind the wheel. Courts may access the data recorded and, in some jurisdictions, a motorist who blew over the limit may face additional penalties.  Ignition Interlock devices typically cost about $75 and may run $50 a month or more to maintain.

 

Attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in the Miami Valley and throughout Ohio.  He has the credentials and the experience to win your case and has made himself Dayton’s choice for drunk driving defense. Contact Charles Rowland by phone at (937) 318-1384 or toll-free at 1-888-ROWLAND (888-769-5263). If you need assistance after hours, call the 24/7 DUI Hotline at (937) 776-2671.  You can have DaytonDUI at your fingertips by downloading the DaytonDUI Android App or have DaytonDUI sent directly to your mobile device by texting DaytonDUI (one word) to 50500.  Follow DaytonDUI on Facebook, @DaytonDUI on Twitter, YouTube, Tumblr, Pheed and Pintrest or get RSS of the Ohio DUI blog.  You can email CharlesRowland@DaytonDUI.com or visit his office at 2190 Gateway Dr., Fairborn, Ohio 45324.  “All I do is DUI defense.”

 Find information on Ignition Interlock devices on this blog, or check these city-specific sites at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburgSpringboro,Huber HeightsOakwoodBeavercreekCenterville

 

OVI Breath Tests: Faulty Assumptions

July 31st, 2013

English: Bronchial anatomy detail of alveoli a...

Why do Ohio OVI attorneys question OVI breath tests?

Each of our lungs contain about 300 million small air sacs called “alveoli” that are responsible for the air exchange that keeps us alive.  In the alveoli, oxygen from the inhaled air is exchanged for carbon dioxide.  Air finds its way to the alveoli via the trachea which divides into the two main stems (bronchi) of the lungs.  From there, the air passes through sub-bronchi that may subdivide over 23 times.  As the air is passing through the lungs it passes over a rich layer of mucus which warms and humidifies it.

Like the exchange of carbon dioxide, when ethanol (drinking alcohol) is present, it too is exchanged in the lungs via the alveoli.  It is an inefficient system of exchange and we know this because you can smell an odor of an alcoholic beverage if a person has recently consumed.  The amount of alcohol that leaves the blood to via alveoli exchange is critically dependent on the blood alcohol concentration and the peculiarities of the person’s lung.

Drunk driving defense attorneys have long argued that the differences between human breathing and the dynamics of alcohol exchange at the alveoli level make the comparison questionable for purposes of evidential breath testing.  This exchange and its proposed value is based on Henry’s law, a chemical law which states that the proportion of alcohol contained in an air sample is comparable to the amount of alcohol contained in the blood.  Henry W., Experiments on the Quantity of Gases Absorbed by Water at Different Temperatures and Under Different Pressures. Philos Transcripts of the Royal Society 93:29-42, 1803.

If you have ever opened a cold beer you are familiar with Henry’s Law.  As the drink is poured small gas bubbles escape into the atmosphere.  Why? It is due to the decrease in pressure caused by opening the bottle and the increased if you pour the liquid into a glass which is hotter than the refrigerated beer bottle.

We can attack the operation of Henry’s Law in the accusation of drunk driving when a person is over-heated due to an illness or physical exertion like dancing.  The higher the temperature, the higher a breath test will be according to science.  Breathing patterns can also affect the concentration of alcohol in a breath sample.  This variation is primarily caused by the difference between the ambient air temperature and that of the human body.  Since it is impossible for any breath testing device to sample the air exchange at the alveolar level, it has to assume that the air coming out is of an equivalent alcohol concentration based on Henry’s Law.  It cannot and does not take into account any differences in the individual, the individual’s lungs or the differences in temperature between the ambient air and the sample.

Read more about the breath machine’s assumptions at Halstala, M.P. Physiological Errors Associated With Alcohol Breath Testing. The Champion 10:16-39, 1985.
 
Much of the information in this article comes from the International Association of Forensic Toxicologists.  Specifically the Proceedings of the 27th International Meeting held in Perth, Australia on October 19-23, 1990.
 

DUI attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in DaytonSpringfieldKetteringVandaliaXeniaMiamisburg, Huber Heights,Beavercreek, and throughout Ohio.  He has the credentials and the experience to win your case and has made himself the Miami Valley’s choice for DUI defense.  Contact Charles Rowland by phone at 937-318-1DUI (937-318-1384), 937-879-9542, or toll-free at 1-888-ROWLAND (888-769-5263).  For after-hours help contact our 24/7 DUI HOTLINE at 937-776-2671.  For information about Dayton DUI sent directly to your mobile device, text DaytonDUI (one word) to 50500.  Follow DaytonDUI on Twitter @DaytonDUI or Get Twitter updates via SMS by texting DaytonDUI to 40404. DaytonDUI is also available on Facebook,www.facebook.com/daytondui and on the DaytonDUI channel on YouTube.  You can also email Charles Rowland at: CharlesRowland@DaytonDUI.comor write to us at 2190 Gateway Dr., Fairborn, Ohio 45324.