Posts Tagged ‘breath test defense’

DaytonDUI, Defending a Breath Test Case

April 29th, 2012

Big Bad Wolf

“I’ll Huff and I’ll Puff and Blow Your House Down”

Did you know that your breathing pattern can significantly alter the concentration of alcohol on your evidential breath test?  According to scientific research, “[t]he subject’s test manner of breathing just prior to providing breath for analysis can significantly alter the concentration of alcohol in the resulting exhalation.” (Jones, 1982, Schoknecht, 1989) as cited in Physiological Aspecs of Breath-Alcohol Measurement, Alcohol Drugs & Driving Vol. 6, No. 2, A.W. Jones.

Hyperventilation “…lowers the breath alcohol concentration by as much as 20% compared with a single moderate inhalation and forced exhalation used as control tests.” Id. (Jones, 1982).  Whereas, “holding breath for a short time (20 seconds) before exhalation increases the alcohol concentration in exhaled air by 15%. Id. (Jones, 1982).

With Ohio’s adoption of the Intoxilyzer 8000 breath test machine, attorneys should be on the look out for these types of breathing pattern defenses.  Tell your Ohio DUI lawyer if you were asked to hold your breath, blow in an unusual pattern or if the officer abruptly told you to stop blowing.  Your attorney needs to know how you blew because an operator may be looking to manipulate your breath pattern to force agreement of a first blow and  a second blow.

Charles M. Rowland II, DaytonDUI, is certified on the Intoxilyzer 8000 and has attended training on the machine wherein defenses like the breathing pattern defense and the long-blow breath test defense are explained in scientific detail.  He has been a city prosecutor and is Ohio’s only Forensic Sobriety Assessment certified attorney.  If you need to fight your DUI, contact attorney Charles M. Rowland II at 937-318-1DUI or 888-ROWLAND. “All I do is DUI Defense.”

Scientific Defenses to an OVI: The GERD Defense

December 15th, 2011
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The National Center for Health Statistics estimates that acid reflux (called gastroesophageal reflux) and the more serious Gastroesophageal Reflux Disease (hereinafter GERD) affect more than 90 million people at least one time per month and about 25 million people experience serious GERD problems daily. ”  GERD is usually caused by changes in the barrier between the stomach and the esophagus, including abnormal relaxation of the lower esophageal sphincter, which normally holds the top of the stomach closed; impaired expulsion of gastric reflux from the esophagus, or a hiatal hernia. These changes may be permanent or temporary (“transient”). [cite]

Although about 10 percent of the population of the United States has GERD, between 43 and 75 percent of those folks actually have silent or subclinical GERD, meaning they have no signs except for an occasional cough or raspy voice.  These signs result from refluxed hydrochloric acid (HCl) from the stomach and may present in vocal cord irritation.”  Greenberger, N.J. Update in Gastroenterology, ANN INTERN MED 125 (3) (February 1997) 221-225 as cited in Understanding DUI Scientific Evidence, 2011 ed.,  Developing a GERD Defense, McShane J.D. et al., pp. 136-138.  The defendant who suffers from Gastroesophageal Reflux Disease (GERD) will not exhibit outward signs of distress or other signs which a breath testing technician would likely notice.  The surging ethanol vapor can cause an elevated reading on an evidential breath testing device.  The elevated test can appear following a valid and conscientious observation period.  Because the evidential breath testing device cannot distinguish contaminated air from deep-lung alveolar air, it registers a reading which can be incredibly higher than observational evidence (i.e. the standardized field sobriety tests) would suggest.  Because of the GERD a factually innocent person will appear guilty of OVI.  Couple this with the elevated status afforded the evidential breath testing devices by Ohio law and you have a scientifically provable instance of injustice.

Do you have GERD? Do you have a verifiable diagnosis?  Have you been on prescription medication for this disorder?  If you answered yes to these questions, have your Ohio OVI attorney consider the science behind a reflux-based defense.  Attorney Charles M. Rowland II is certified in Forensic Sobriety Assessment, has been trained in the administration and evaluation of the standardized field sobriety testing, and has attended the National College for DUI Defense Forensic DUI Science national seminar where he was trained in presenting science based drunk driving defenses.  In addition, Charles M. Rowland has been certified on the operation, calibration and maintenance of the  Intoxilyzer 8000 and the BAC DataMaster breath testing machines.  Ohio drunk driving attorney Charles M. Rowland can be reached by phone at 937-318-1DUI (937-318-1384), 937-879-9542, or toll-free at 1-888-ROWLAND (1-888-769-5263).  For after-hours help contact our 24/7 DUI HOTLINE at 937-776-2671.   Immediate help is available by filling out the CONTACT form on any of these pages.  For information about Dayton DUI sent directly to your mobile device, text DaytonDUI (one word) to 50500.  Follow DaytonDUI on Twitter at www.Twitter.com/DaytonDUI or Get Twitter updates via SMS by texting follow DaytonDUI to 40404. DaytonDUI is also available on Facebook and you can access updates by becoming a fan of Dayton DUI/OVI Defense.  You can also email Charles Rowland at: CharlesRowland@DaytonDUI.com or write to us at 2190 Gateway Dr., Fairborn, Ohio 45324.

Why Allowing Junk Science in the Courtroom is Hurting Our System

May 11th, 2011
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When you hear a DUI/OVI attorney decrying “junk science” that is used in court, they are most likely referring to the fact that the air blown into the breath test machine for purposes of testing cannot be the same air that is exchanged with the deep lung alveolar sacs. It is impossible to limit the breath test to limit itself to deep lung alveolar air. The theory breaks down because: IF THE MAJORITY OF AIR BEING MEASURED HAS NOTHING TO DO WITH THE BLOOD EXCHANGE THEN THE TEST IS NOT MEASURING THE AMOUNT OF ALCOHOL IN THE BLOOD.

The machine does not and cannot discriminate in its air sample.   It will measure and analyze the 1.5 liters of breath that it is given. The problems with the theory is that the breath machine has to assume a similar lung volume amongst the population. Common sense dictates that a 21 year old, 6 foot male in perfect health blowing 7 liters of air IS DIFFERENT than an 65 year old, 5 foot 2 inch woman who may only blow 1.5 liters.

The major injustice in DUI/OVI law in Ohio is that attorneys are prevented from attacking the “junk science” of breath tests machines due to the decision in State v. Vega. As amazing as it seems, Ohio has decided that if the government says the science is good enough, then attorneys cannot challenge it. Imagine if the same philosophy were used in other areas of criminal law. What if the Ohio legislature decided that eye-witnesses were inherently reliable and an attorney could not challenge them at trial. What is to stop them from saying that police officers are inherently reliable and they too are free from cross examination.

Our American values suggest that when the government accuses you of a crime you have the right (and your attorney the duty) to challenge the evidence against you. If attorneys vigorously fight, the police are trained to do a better job. Judges who hold the state to a higher standard protect the citizens from tyranny. Being pro-law enforcement should not ever mean we give them a pass, but that we hold them to such a standard that even in the most difficult case we trust the system. The maxim that 10 guilty should go free rather than one innocent be punished express the highest esteem for law enforcement and for our system. Allowing junk science in DUI cases has an opposite and corrosive effect to our American values.

Dayton DUI attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver.  He has the credentials and the experience to win your case and has made himself Dayton’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.  You can also email Charles Rowland at: CharlesRowland@CharlesRowland.com or write to us at 2190 Gateway Dr., Fairborn, Ohio 45324.