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CBS Highlights MADD’s DADDS Technology (by DaytonDUI)

January 7th, 2013

All 16 major car companies and the federal government is behind technology (described in the video) that would test each and every person’s tissues, blood or breath each time you enter a car… your car.  The project’s goal is to develop an inexpensive, publicly-supported and extremely accurate technology that passively senses if a driver is at or above the illegal limit of .08 BAC.  If the technology says the driver is drunk, DADSS would prevent the vehicle from starting.  The projected implementation date is 2016-2018.  

DUI attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in Dayton, Springfield, Kettering, Vandalia, Xenia, Miamisburg, 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.

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Athens Judge Throws Out Intoxilyzer 8000 Rules

August 20th, 2012

State v. Moore (12 TRC 1842) and State v. Montague (12 TRC 3773) Athens Municipal Court

In another in a series of troubles for the implementation of Ohio’s newest breath test machine, Judge Grimm in Athens County has halted use of the Intoxilyzer 8000.  Courts throughout Ohio must decide how, given this ruling, they will deal with the implementation of the machine.  The issue before the court involved the rules adopted by the Ohio Department of Health.  Specifically, the court was asked to address whether or not the Ohio Department of Health has authority to issue operator cards for the Intoxilyzer 8000, and assuming it does, whether or not the Ohio Administrative Code (OAC 3701-53) has articulated standards for who receives operator access cards and can thus use the machine.

Given its significance, I have included large portions of the decision in this posting.

On the first issue, the court concluded:

The second issue was more complicated.

Having found that the Ohio Department of Health has failed to articulate standards for the issuance of operator access cards, the Court then has to decide the impact and legal significance of this omission.

 Congratulations to Jon Saia, a great DUI/OVI attorney who argued this case in the Athens Municipal Court.  This is a significant case that represents another black eye for the Ohio Department of Health who has had multiple missteps in the implementation of this machine.

 

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DUI Case Law Update: State v. Castle (Franklin County)

June 11th, 2012

State v. Castle, 168 Ohio Misc.2d 6, 2012-Ohio-1937

On July 3, 2011, Floyd Castle was arrested and charged with OVI (drunk driving) and other offenses.  When the Trooper administered a chemical test he chose to conduct that test on a BAC DataMaster breath test devise instead of Ohio’s newest machine the Intoxilyzer 8000.  The Trooper was qualified as a senior operator on the BAC DataMaster.  The Trooper also held an operator-access card to administer tests on the Intoxilyzer 8000.  The issue before the court is whether or not the Ohio Administrative Code, specifically O.A.C. 3701-53-09(D), allows the Trooper to conduct a test on the BAC DataMaster once he has been issued the Intoxilyzer 8000 operator-access card.

O.A.C. 3701-53-09(D) states:

Individuals desiring to function as operators using instruments listed under paragraph (A)(3) of rule 3701-53-09(D) of the Administrative Code shall apply to the director of health for operator access cards on forms prescribed and provided by the director of health.  The director of health shall issue operator access cards to perform tests to determine the amount of alcohol in a person’s breath to individuals who qualify under the applicable provisions of rule 3701-53-07 of the Administrative Code.  Individuals holding operator access cards issued under this rule shall use only those evidential breath testing instruments for which they have been issued an operator access card. [Emphasis added].

The argument for not allowing the Trooper to test on a BAC DataMaster is plainly set forth in the Code.  Administrative regulations are reviewed in the same manner as statutes. State v. Ready, 10th Dist NO. 05AP-501, 2006-Ohio-1212.  Legislative intent is the “cornerstone of statutory construction and interpretation.” State v. Jordan, 89 Ohio St.3d 488, 491-492, 733 N.E.2d 601 (2000).  If the language of the statute is unambiguous, a court must apply it as written; however, if more than one reasonable interpretation of the language exists, then the statute is ambiguous and must be construed by the court. Id., citing State ex rel. Savarese v. Buckeye Local School Dist. Bd. of Edn., 74 Ohio St.3d 543, 545, 660 N.E.2d 463 (1996); State ex rel Celebrezze v. Allen City Bd. of Commrs., 32 Ohio St.3d 24, 27, 512 N.E.2d 498 (1996).

After going through an exhaustive analysis of the statute and the legislative intent of the regulation, the court concludes that “Ohio Administrative Code 3701-53-09 is clear and unambiguous.  If an individual has an operator or senior-operator permit for a BAC DataMaster, the individual may administer chemical breath tests using a BAC DataMaster.  The individual may obtain multiple permits and use any instrument for which the individual has been issued a permit.  The individual may obtain an operator-access card.  As in this case, the individual may also be issued a permit after being issued an operator-access card.  However, once the individual has been issued an operator-access card, the individual is prohibited from using any other type of instrument, including those for which the individual may have been issued a permit.”  Id.  The court then goes on to recognize that applying the law might have a negative or undesirable impact for law enforcement.  ”Nonetheless, the court is “constrained by the principles of separation of powers and cannot rewrite” the regulation. State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470.

If you have been arrested on suspicion of operating a vehicle while impaired, you may have a defense if the arresting officer chose to use a machine other than the Intoxilyzer 8000.  Contact Charles Rowland 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 this CONTACT form.  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@CharlesRowland.com or write to us at 2190 Gateway Dr., Fairborn, Ohio 45324.

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Infrared Spectroscopy and the Falsely High Breath Test (by DaytonDUI)

May 20th, 2012

Ball and stick model of ethanol

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 group molecular structure as ethanol thereby giving a falsely high reading.  Of the myriad of substances found in a human breath, 70% to 80% contain a methyl group molecular structure. The key is to make the machine as specific as possible for ethanol and only ethanol.  You would think that this would mean that over time we have employed machines with better IR technology and more and more filters to limit mistakes and increase specificity.  Unfortunately, the opposite is true.

The Intoxilyzer 8000 utilizes a type of IR technology that is different from its predecessor, the Intoxilyzer 5000 and its competitor the BAC DataMaster instrument.  The Intoxilyzer 8000 uses a pulsing IR lamp to excite the sample molecules and a pyro-electric detector to detect results.  Compared to the continuous flow of IR and a cooled lead selenide detector in the other machines the 8000’s technology is slower, less precise, less reliable and less sensitive. The 8000 has been shown to fail to detect mouth alcohol and other interfering substances.  Instead of employing additional “filters” to limit the result to ethanol the Intoxilyzer 8000 uses fewer than its predecessor or its competitor.  This means that potentially innocent people may face arrest, prosecution and possibly conviction.

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. The key issue here is that acetone is one of the many substances that can be falsely detected as ethyl alcohol by the Intoxilyzer 8000. Other common environmental compounds may also affect a test.  Those substances include: compounds found in cleaning fluids, celluloid, gasoline, paint removers, and in lacquers. Other common substances that can result in false BAC levels are alcohol, vomit, or blood in the person’s mouth.

Studies conducted in Tennessee and Vermont determined that the Intoxilyzer 8000 did not produce results which could satisfactorily be relied upon for the prosecution of DUI (OVI) offenses. The instrument was evaluated for accuracy, precision and performance. The task force given the responsibility to approve instruments for use in Tennessee found that the “CMI Intoxilyzer 8000 did not yield satisfactory results” to accurately determine BAC levels. The instrument has run into a significant number of problems in Florida, Arizona and Minnesota as well.

If you face the possibility of an OVI conviction, contact Charles M. Rowland II immediately at (937)318-1384 or 888-ROWLAND.

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Ohio DUI Law: The Hematocrit Defense

February 27th, 2012
English: Two drops of blood are shown with a b...

How bloody is your blood?  The hematocrit is the number expressing the cell volume of blood (the size and number of red blood cells in proportion to the rest of the blood).  As humans, we all have a natural variation in our hematocrit.  Healthy men have a natural variance from 40.7% to 50% and healthy women have a natural variance from 36.1% to 44.3%.  The hematocrit level is a moving target.  Illness, hydration and stress can cause variations in the hematocrit level.

The hematocrit level affects all breath tests by governing how much alcohol may be contained in the blood and, in turn, how much will pass into the breath. See Nesci, How to Beat a DUI, 2008 ed., p. 57.  Under the best of conditions, normal hematocrit ratios will lead to a +/-5% difference in a breath test result.  Let’s pause for a moment to contemplate this fact.  Would you accept this degree of error from your bank? “We know you asked for $10,000.00, but giving you $9,500 is within our margin of error.”

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 Solutions, David J. Hanson, PhD., Breath Analyzer Accuracy.  As one writer observed,

Breath testing, as currently used, is a very inaccurate method for measuring BAC. Even if the breath testing instrument is working perfectly, physiological variables prevent early reasonable accuracy….Breath testing for alcohol using a single test instrument, should not be used for scientific, medical or legal purposes where accuracy is important. Hlastula, M. Physiological errors associated with alcohol breath tests . The Champion, 1985, 9(6). Quoted in Taylor, L. Drunk Driving Defense. New York: Aspen Law and Business, 5th edition, 2000.

Another area that is affected by the machines built-in assumptions are tests done on people suffering from anemia.  Anemia is a condition in which your blood has a lower than normal number of red blood cells.  If you have anemia, your body doesn’t get enough oxygen-rich blood.  The body compensates by putting replacing the red blood cells with blood plasma.  Alcohol has more of an affinity for the plasma because it is liquid (as opposed to the solid red blood cells).  It follows that the higher the ratio of liquid to solids in the blood (called the hematocrit), the higher the amount of alcohol in the blood — and the higher will be the reading on the breathalyzer. Id. See also HERE.

 Charles M. Rowland II dedicates his practice to defending the accused drunk driver in Fairborn, Dayton,Springfield, Kettering, Vandalia, Xenia, Miamisburg, Springboro, Huber Heights, Oakwood,Beavercreek, Centerville and throughout Ohio.  He is counsel to Miami Valley NORML and a speaker for LEAP (Law Enforcement Against Prohibition).  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 at937-776-2671.  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 Facebookand 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.  “All I do is DUI defense.”

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