Tag: breath test

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.

should i blow

When Stopped On Suspicion of DUI – Should I Blow?

00Breath TestingTags: , , , , , , , , , ,

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.

  1. Iaman Ohio license holder, 21 years or older; AND
  2. I wasnotinvolved in an accident involving possible death or to serious injury to ANYBODY, even members of my family, pedestrians or passengers; AND
  3. I do not have a commercial driver’s license (CDL);AND
  4. 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, 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.

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.

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.”

To learn more about the question, Should I Blow, check these city-specific sites at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburg, Huber HeightsOakwoodBeavercreekCenterville

Keywords: Should I Blow

Dayton DUI: Breath Test Defenses in Ohio

00Breath TestingTags: , , , , , , , , , , , , , , , , , , , , , ,

dui breath test defensesThis article will highlight DUI breath test defenses available to people in Ohio.  As we have extensively written on the topic of DUI breath test defenses, this article will direct you to some of the most popular past articles.  If you have been charged with a violation of Ohio Revised Code 4511.19 (DUI, OVI, Drunk Driving) please contact Charles M. Rowland II immediately at (937) 318-1384 or on our after-hours DUI hotline at (937) 776-2671.

DUI Breath Tests & Faulty Assumptions: This article relies on information from the International Association of Forensic Toxicologists.  Specifically the Proceedings of the 27th International Meeting held in Perth, Australia on October 19-23, 1990 to explore some of the fundamental errors in the assumptions relating to DUI breath tests.  It presents the DUI breath test defenses available as an application of Henry’s law.  Here is an excerpt,

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.

DUI Science: Pharmacokinetics and Pharmacodynamics: DUI breath test defenses often focus on the absorption and/or elimination of alcohol from the body.  In this article we show a introductory video describing the basic science behind DUI breath test defenses. From the article,

Defending a DUI (now called OVI in Ohio) requires an attorney to understand how the body reacts to the impairing substance (pharmacokinetics) and how the brain is affected by the substance (pharmacodynamics).  Pharmacokinetics explains the absorption, distribution and elimination of the drug.  Pharmacodynamicsincludes the action of the drug on the brain, pharmacologic effects and toxicity. [Holford, N., Chapter 3: Pharmacokinetics and Pharmacodynamics: Rational Dosing and the Time Course of Drug Action, in B. Katzung, Editor, McGraw Hill, Eighth Edition, 2001, p. 36].

Intoxilyzer 8000 Is Unreliable Judge Finds: Many DUI breath test defenses center on the reliability of the breath test machine.  It is vital that your DUI/OVI attorney be well versed in the machines and their weaknesses.  In these articles we discuss Ohio’s newest and most flawed evidential breath test device; the Intoxilyzer 8000.  What machines are approved for use,? Approved Breath Testing Instruments: O.A.C. 3701-53-02. What are the methods approved for testing? Gas Chromatography Mass Spectrometry (An Overview)Intoxilyzer 8000 Upheld in Ohio’s 11th and 12th Appellate CourtsProblems with the Intoxilyzer 8000DaytonDUI And The Continuing Problems With the Intoxilyzer 8000, Athens Judge Throws Out Intoxilyzer 8000 RulesOhio DUI Law: Another Jurisdiction Dumps the Intoxilyzer 8000Calibration of the Intoxilyzer 8000, O.A.C. 3701-53-04Ohio OVI Breath Testing – Bigger Is Better?Blood, Breath & Urine Testing In Ohio: The Three Hour RuleIntoxilyzer 8000 Finding Opposition Throughout Ohio and Beyond

The Partition Ratio Defense; Do We Share a Lung?Is your lung the same as mine?  The breath test machine assumes that it is.

While scientific studies suggest that lung physiology can have a significant impact on breath alcohol testing, Hlastala, “The Impact of Lung Physiology on Breath Alcohol Testing,” 1DWI Journal: Law and Sciences 5, 31-48 (November/December 1986), the breath testing machines assume that all lungs are the same.  It is assumed for purposes of breath alcohol analysis that a person will exhale air at an average temperature of 34 degrees C.  At that assumed temperature, 2100 milliliters of alveolar air (deep lung air) is assumed to have the same quantity of alcohol as 1 milliliter of pulmonary arterial blood. Greenberg, “Physiological Factors Affecting Breath Samples,” 5 Journal of Forensic Sciences 411 (1960).  As is pointed out in Barone, Defending Drinking Drivers, Second Ed., sec. 223, “There is still scientific debate on the validity of the 2100:1 ratio. Alobaidi et al., “Significance of Variation in Blood/Breath Partition Coefficient of Alcohol,” 2 British Medical Journal 147 (1976); Dubowski and O’Neill, “The Blood Breath Ratio of Ethanol,” 25 Clinical Chemistry 1144 (1979).  Some scientific literature suggests ratios as wide as 1117:1 to 7289:1. Dubowski and O’Neill, “The Blood/Breath Raio of Ethanol,” 25 Clinical Chemistry 1144 (1979).  Harger et al., “The Partition Ratio of Alcohol Between Air and Water, Urine and Blood; Estimation and Identification of Alcohol in These Liquids from Analysis of Air Equilibrated with Them,” 183 Journal of Biological Chemistry 197 (1950); Jones, “Variability of the Blood/Breath Ratio in Vivo,” 39 Journal Alchoholic Studies 1931 (1978).

DUI Breath Test Defense: Core Body Temperature as a Defense to a Breath Test: This article discusses the DUI breath test defenses that flow from a person’s core body temperature.

Why is temperature important?  Science tells us that a higher core body temperature will increase the BrAC and a lower core body temperature will lower the BrAC.  International Association for Chemical Testing, IACT Newsletter, Vol. 9, No. 2, July 1998, Dale A. Capenter Ph.D. & James A. Buttram, Ph.D. as cited by James Nesci, Esq. An 8.62% increase for each degree C increase in core body temperature and a 6.8% decrease per degree C in core body temperature has been reported (Fox & Hayward 1989, Fox & Hayward 1987 via Drunk Driving Defense, 6th Ed., Taylor).  The scientists concluded, “[t]here findings support the notion of making some kind of temperature control in connection with evidential breath testing and if necessary a correction to the result.” Psysiological Aspects of Breath Alcohol Measurement, Alcohol Drugs & Driving, Vol. 6, No. 2, A.W. Jones.  Therefore, it is imperative that the body temperature is known.  Breath testing procedures that do not require measurement of body temperature are an inaccurate means of determining level of intoxication.

OVI Breat Test Defenses: Exposure to Toulene: A series of DUI breath test defenses are available to defendants exposed to certain chemical solvents. From the article,

Among the compounds most commonly mistaken for alcohol are methanol, isopropanol, ethylene, toluene, nitrous oxide, diethyl ether, acetonitrile and isopropanol. The presence of any of these compounds in the DUI suspect’s lung tissue will likely cause a false, or falsely high, blood alcohol reading. People frequently ingest these compounds at work or in other environments where the chemicals are present.

Defending An OVI: The Hematocrit Defense: DUI breath test defenses do not only involve breath as this article on the hematocrit defense attests.

Breath testing machines do not have built in mechanisms for detecting and stabilizing hematocrit levels.  The machine is forced to use an assumed hematocrit level of 45% (averaging the male average of 47% and the female average of 42%).  As we have seen above, this builds in a bias against the average female test subject who has a lower hematocrit average and may, in fact have a wildly lower hematocrit level than that assumed by the machine.  So what does this mean for women?  A person with a lower hematocrit level will have a falsely high BAC reading. See Alcohol Problems and SolutionsDavid J. Hanson, PhD., Breath Analyzer Accuracy.

Infrared Spectroscopy and the Falsely High Breath Test: DUI breath tests defenses can be specific to the person or derived from flaws in the machine.

The Intoxilyzer 8000 operates using the scientific principle of infrared (IR) spectroscopy, which identifies molecules based on the way they absorb infrared (IR) light.  More specifically, when molecules in a breath sample are exposed to IR light the way they vibrate changes due to the bending of the (C-O, O-H, C-H, C-C) bonds.  Each type of bond absorbs light at a known wavelength, thus the amount of IR absorption identifies a substance as ethanol and how much ethanol is in the sample. But here’s the rub…  The machine can identify any compound containing a methyl groupmolecular structure as ethanol thereby giving a falsely high reading.

The Diabetic Breath Test Defense: One of the DUI breath test defenses specific to the individual relates to persons suffering from diabetes.

If you are on a diet or a diabetic, you may be susceptible to a false BrAC reading.  The National Highway Traffic Safety Administration (NHTSA) has found that people who are diabetics or dieters can have acetone levels that are hundreds, if not a thousand of times higher than people who are not diabetics or dieters.

Scientific Defenses to an OVI: The GERD Defense: The National Center for Health Statisticsestimates 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.

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.

DUI Science and More Faulty Breath Machine Assumptions:  Do you want to know a secret of DUI breath test defenses? Evidential Breath Testing Measures The Amount of Alcohol In Your Breath Not in Your Brain!

During peak absorption arterial blood is higher than  venous blood.  Arterial blood travels to the lungs for normal bodily air exchange and comes into contact with the highest level of alcohol concentration thereby resulting in an overstated (disproportionately high) BAC level.  Venous blood  more accurately indicates BAC levels inside the tissues of the brain and is a better indicator of how much the alcohol is impairing your brain function.

DUI Science: Fat vs. Thin/Man vs. Woman/Young vs. Old: After consuming alcohol, will a fat person or a thin person have a lower BAC?  Your body composition and your gender can hinder or help your DUI breath test defenses.

So we can conclude that the fatter the person, the more alcohol will remain in the bloodstream which will result in a higher BAC result.  The better a person’s physical fitness level, the more alcohol will be taken up by the rest of the body, the less which will be left in the blood, which results in a lower BAC.  This may upset the traditional assumption that the bigger the person (i.e. the size of the container) the more alcohol that the person can consume and the lower the BAC.  The “lean” to “fat” ratio, however, is an important factor.  Women have, on average, a higher percentage of body fat.  Older people have, on average, a higher percentage of body fat.  Does this mean that the breath tests are biased against older people and women.  Based on the science the answer is, yes!  The higher the percentage of body fat, the more alcohol will stay in the bloodstream, the higher the BAC which will result from the alcohol consumed, as opposed to the same amount consumed by a lean, muscular person of the same weight.

Residual Mouth Alcohol, Slope Detectors and the 20 Minute Observation: One of the most prevalent causes of error in breath-alcohol analysis is the presence of alcohol in the mouth.

Mouth alcohol contamination is not a myth made up by OVI defense attorneys.  The manufacturers of the BAC Datamaster addresses the importance residual mouth alcohol in their own materials.  “The importance of observing the initial waiting period of 15[2] minutes, minimum, cannot be overstressed.  Around it hinges all the statements of scientific certainty regarding the validity of the breath test reading without any possible contribution from mouth alcohol.” Fusco & Radomski, Basic Science of Evidential Breath Alcohol Testing, p. 14. (emphasis added)  The phenomenon of R.M.A. has been recognized by the American Medical Association’s Committee on Medical Problems, which stated in its Manual for Chemical Tests for Intoxication (1959): “True reactions with alcohol in expired breath from sources other than alveolar air (i.e.. alcohol trapped in dentures) will, of course, vitiate the breath alcohol results…”[3] And see Caddy, Sobell and Sobell, “Alcohol Breath Tests: Criterion Times for Avoiding Contamination by ‘Mouth Alcohol,’”[4] in which the authors conclude that when a subject is given ethyl alcohol in concentrations ranging from 4 percent to over 95 percent, the time for total dissipation of the mouth alcohol ranged from 10 to 19 minutes.

Defending Your DUI: The Gastric Bypass Defense: Gastric bypass surgery (also called bariatric surgery) is a procedure that drastically reduces the size of the stomach which has a dramatic effect when consuming alcohol.

Another factor involves how the alcohol is metabolized.  When alcohol is consumed approximately 20% of the initial metabolization occurs in the stomach.  The stomach produced gastric alcohol dehydrogenase which acts to “break down” the alcohol before it moves on to the small intestines.  ”According to one study, alcohol metabolism was significantly different between the bypass patients and the control group who had no stomach surgery.  The bypass patients had a greater peak alcohol level, and it also took them longer to reach zero or no alcohol.  The difference in peak BAC is significant.  The bypass patients were at .08 or unlawful when the control group only had a BAC of just .05.2  This is a nearly 40% difference!” See Barone, Alcohol Metabolism Changes Considerably After Gastric Bypass Surgery.

At DaytonDUI we work tirelessly to stay on top of any scientific trends which can help us defend our clients.  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.”

 Find information on DUI breath test defenses and other city-specific info at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburgSpringboro,Huber HeightsOakwoodBeavercreekCenterville

OVI Breath Tests: Faulty Assumptions

00Breath TestingTags: , , , , , , , , , , , , , , , , , , , , , , , , ,

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.

Driving Privileges: Hard Time

00DUI & ALS Suspensions, DUI & Driving Privileges, Ohio BMV Issues, Prior OffensesTags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

15 days if you took the test, 30 days if you did not (First Offense)

Seal of the Ohio Bureau of Motor Vehicles Source

If you are stopped for an OVI, DUI or drunk driving and you refuse to take a chemical test (breath, blood 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.

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.  DUI attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in Fairborn, Dayton, SpringfieldKetteringVandaliaXeniaMiamisburgHuber HeightsBeavercreekCentervilleSpringboro, Franklin 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 Twitterupdates 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.com or write to us at 2190 Gateway Dr., Fairborn, Ohio 45324.