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Alcohol and Energy Drinks (by DaytonDUI.com)

May 10th, 2012
One 23.5 ounce can of the Four Loko alcoholic ...

In 2005, the Drink Four  Brewing Company introduced Four Loko to the American malt beverage market. The name “Four” is derived from the original energy drink’s four main ingredients: alcohol, caffeine, taurine, and guarana.  There are three product lines within the Four brand:

  • Four Loko — contains either 6%, 8%, or 12% alcohol by volume (ABV), depending on state regulations, and is packaged in 23.5 oz. cans
  • Poco Loko — contains 8% alcohol by volume (ABV), and is packaged in 16 oz. cans
  • Four Loko in bottles — contains either 6% or 8% alcohol by volume (ABV), and is packaged in 11.2 oz. glass bottles

Original formulations of both beverages were a malt liquor-based, caffeinated alcoholic energy drink with added guarana and taurine. The formulations were developed by three alumni of The Ohio State University: Chris Hunter, Jeff Wright, and Jaisen Freeman.  Almost immediately following the introduction of the drinks, a coalition formed in opposition to the beverage.  Critics suggested that consuming energy drinks with alcohol can be harmful in reducing the perception of alcohol intoxication and/or in leading to increased alcohol or drug consumption.

In 2009, a group of US state attorneys general began active investigations of companies which produced and sold caffeinated alcohol beverages, on the grounds that they were being inappropriately marketed to a teenage audience.  The attorneys general were also concerned that these drinks could pose health risks by masking feelings of intoxication.  Colleges and universities joined the chorus against the beverages in 2010 when they began to see injuries and blackouts related to the drink’s use.  The University of Rhode Island banned this product from their campus on November 5, 2010. [sourced via Wikipedia].  Several stores, including Tops Markets, Price Chopper and Wegmans have voluntarily pulled the product from their shelves.

Under mounting pressure, Phusion withdrew Four Loko from the State of New York in November, 2009.  The beverage was banned in Oregon by a 4-1 vote of the Oregon Liquor Control Commission in that same month.  Citing health and safety concerns, Oklahoma joined the movement against the sale of Four Loko.  Michigan soon followed suit.  Id.  According to a statement from the Michigan Liquor Control Commission, “The decision was made in light of several studies regarding alcohol energy drinks, the widespread community concerns aired by substance abuse prevention groups, parent groups and various members of the public, as well as the FDA’s decision to further investigate these products.” [source]  The New York State Liquor Authority moved for a full  ban as of November 19, 2010. New York state senator Chuck Schumer and New York City councilman James Sanders Jr. have approached the Obama administration to ban Four Loko across the state of New York.  Ohio did not join the stampede.  Instead, they took a wait and see approach.  ”We are continuing to monitor the situation,” a representative of the Ohio Department of Commerce Division of Liquor Control said. “However, a legislative change would be needed to the statute in order for the superintendent to disapprove a product.” [source]

On November 17, 2010 the U.S. FDA Food and Drug Administration dropped the proverbial hammer.  They issued a warning letter to four manufacturers of caffeinated alcohol beverages citing that the caffeine added to their malt alcoholic beverages is an “unsafe food additive” and said that further action, including seizure of their products, may occur under federal law.  It declared that beverages that combine caffeine with alcohol, such as Four energy drinks, are a “public health concern” and can’t stay on the market in their current form.  But is this drink really a public menace?

As reported at Alcohol Problem and Solution, a site maintained by Dr. David J. Hanson of the State University of New York, the research does not support the level of outrage generated by the public.  To examine the scientific evidence on the effects of mixing energy drinks and alcohol, a review of the research was conducted. It found

  • virtually no evidence that energy drinks influence any behavioral effects of alcohol,
  • no reliable evidence that energy drinks effect the perceived level of intoxication by drinkers,
  • no evidence that mixing energy drinks and alcohol leads to alcohol or drug abuse or dependence, and
  • no adverse health effects for healthy individuals from combining energy drinks and alcohol.

The review was conducted by researchers at the Utrecht Institute for Pharmaceutical Sciences at Utrect University, Utrecht, The Netherlands, and published in the International Journal of General Medicine.  If you wish to review the research, please consult the following:

  • Greenemeier, L. Why Are Caffeinated Alcoholic Energy Drinks Dangerous? Scientific American, November 9, 2010.
  • Hendrick, B. Dangerous Cocktail: Energy Drinks + Alcohol: Mixing Booze With Energy Drinks Triples Risk of Getting Drunk. WebMD Health News, February 12, 2010.
  • Join Together Staff. Combining Energy Drubks with Alcohol More Dangerous than Drinking Alcohol Alone. JoinTogetherOnline.com, April 18, 2011.
  • Jones, S.C., et al. Why (not) alcohol energy drinks? A qualitative study with Australian university students. Drug and Alcohol Review, published online May 24, 2011. DOI: 10.1111/j.1465-3362.2011.00319.x
  • Minderhout, C. Energy Drinks and Alcohol Still a Risky Mix. Food Safety News, May 2, 2011.
  • Park, A. A Bad Mix: Why Alcohol and Energy Drinks Are Dangerous:
    Healthland Time, April 18, 2011.

DUI attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in Dayton, Springfield, Kettering, Vandalia, Xenia, Miamisburg, Springboro, Huber Heights, Oakwood, Beavercreek, Centerville 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 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. “All I do is DUI”

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DUI Science: How To Read The Correlation Studies in the NHTSA Manual

May 8th, 2012

Researchers at the National Highway Traffic Safety Administration (NHTSA) have created a booklet for law enforcement called “Guide for Detecting Drunk Drivers at Night.”  This guide sets forth some of the most common and reliable indicators of drunk driving.  The list divides driving behaviors into four areas of clues that officers are trained to look for: Maintaining Lane Position, Speed and Braking, Vigilance, and Judgment.  The following is a list of symptoms in descending order of probability that the person observed is at or above a .10% BAC, thus statutorily driving while intoxicated.

  1. Turning with a wide radius
  2. Straddling center of lane marker
  3. “Appearing to be drunk”
  4. Almost striking object or vehicle
  5. Weaving
  6. Driving on other than designated highway
  7. Swerving
  8. Speed more than 10 mph below limit
  9. Stopping without cause in traffic lane
  10. Following too closely
  11. Drifting
  12. Tires on center or lane marker
  13. Braking erratically
  14. Driving into opposing or crossing traffic
  15. Signaling inconsistent with driving actions
  16. Slow response to traffic signals
  17. Stopping inappropriately (other than in lane)
  18. Turning abruptly or illegally
  19. Accelerating or decelerating rapidly
  20. Headlights off
What’s more, they have assigned a probability of intoxication to each of the indicators.  For example, a person who turns with a wide radius will have a blood-alcohol concentration of .10 or higher 65 out of 100 times.  A person who  appears drunk will have a blood-alcohol concentration of .10 or higher 60 times out of 100.  There is also a procedure for calculating multiple factors, “When two or more cues are seen, add 5% to the highest value among the cues observed.”  If we see turning with a wide radius and a suspect who appears drunk, we take the higher number and add 10 (65 + 5 = 70).   Thus, 30 people out of 100 who appear drunk and turn with a wide radius are not at or above the .10 BAC threshold.

Another example: drifting at night had a 45% correlation to a .10 BAC or more and braking erratically  has a correlation of  35% to a BAC of .10 or more.  Thus if we have a driver who was breaking erratically (35%) and drifting (45%) we add 5% to the highest clue to conclude that the driver would have a correlation of 50% to a BAC of .10 or more (only if he or she were driving at night, of course).  Let’s throw in another clue.  Say our suspect was also turning with a wide radius which is correlated to a 60% chance the driver is above a .10 BAC.  When three or more clues are present we add 10% to the highest clue total (in this case the 60% turning with a wide radius) for a total correlation of 70%.  The individual clues have numbers written beside them in the manual which gives the correlation for the clue alone and in combination.  For instance “Problem Maintaining Proper Lane Position” has a correlation of 50% when indicated alone and a 75% correlation when combined with any other clue.  You can visit the NHTSA website at http://www.nhtsa.gov/people/injury/alcohol/dwidwihtml/index.htm for more on the studies and the driving clues or read How to Beat a DUI by James Nesci, pp. 13-15.

DUI attorney 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 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 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. “All I do is DUI”

 

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Commercial Driver’s License Disqualification in Ohio

May 4th, 2012
English: A sign that states "No Texting W...

You will lose your Ohio CDL for one year if convicted of any of the following offenses:

  • Driving any vehicle with a blood alcohol count (BAC) of 0.08% or higher
  • Driving a commercial motor vehicle (CMV) with a BAC of 0.04%
  • Refusing to submit to a sobriety test
  • Leaving the scene of an accident
  • Using the vehicle to commit a felony
  • Driving a commercial motor vehicle (CMV) with a suspended, revoked or canceled CDL
  • Causing a fatality through negligent driving

Serious Offenses, These violations include:

  • Speeding 15 mph over the posted speed limit
  • Reckless driving
  • Improper lane changes
  • Following a vehicle too closely
  • Driving a CMV without holding a CDL
  • Driving a CMV without having your CDL in your possession
  • Driving a CMV without the proper CDL endorsement
  • Violating a state law of texting while driving

A second conviction of any combination of these violations will lead to the loss of your driving privileges for 60 days, or 120 days for a third or subsequent conviction of any combination of these offenses.  If you plan to fight your traffic ticket, Legal counsel will improve your chances for a favorable decision. This could mean reduced charges or ticket dismissal, possibly sparing you of points, the possible suspension of your Ohio driver’s license and increased auto insurance rates.

DUI attorney 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 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 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. “All I do is DUI”

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Arrested for DUI? What Can You Do Now To Protect, Educate and Empower Yourself

May 3rd, 2012
Speedcuffs Handcuffs Rear Back Behind Handcuff...

What do I do now?  Being arrested for DUI is a frightening and traumatic experience.  Our clients often struggle to deal with the stigma and shame associated with a DUI arrest.  Many strong people are brought to tears when telling a loved-one about their arrest.  Complicating matters is a palpable sense that everything is spinning out of control.  Charles Rowland and the staff at DaytonDUI have been helping people through this process for over seventeen years.  We want to reassure you that your DUI case can be successfully managed.  Like any other crisis, it is imperative that you take steps to PROTECT YOURSELF, EDUCATE YOURSELF and EMPOWER YOURSELF.  Below are some helpful steps that you can take to begin the process of putting a DUI arrest in perspective.

1. PROTECT YOURSELF

As soon as possible after your arrest, take time to write down every single detail of that you can remember.  Sometimes critical pieces of a defense can be found in details that may be forgotten if not recorded immediately.  Start with a time-line or chronology.  What were you doing prior to drinking? When did you start drinking?  How was your health in general on that day?  Did you work out earlier in the day?  Were you around any chemicals?  When did you last sleep?  What do you remember watching on television that day?  Did you make any cell phone calls or have text chats?  When did you last eat and what was it?  What cologne or aftershave lotion did you use that day?  What kind of shoes were your wearing?  Other important areas of consideration include what medications or drugs you ingested prior to driving.  Do you take prescription medication? Do you regularly smoke cigarettes or marijuana?  Did you use breath spray or tic-tacs or tobacco?  Who did you see that day?  Could you have visited a store with a video surveillance camera?  Do you know the bartender who served you?  How was your car operating that night or day?  Think of this first step as establishing what happened before you came in contact with law enforcement.

Next comes the “during arrest information.”  Yes, it may be painful, but try to write down everything that you can remember when you were stopped by law enforcement.  When did you first notice the officer following you?  What was your reaction?  Were you using a cell phone or texting (which may explain swerving), or were you oblivious to the officer until he turned his lights on.  Did you have anything in your mouth?  Often, the location of your stop can provide powerful assistance to your attorney.  Was it a busy road?  What were the conditions?  Was the roadway wet, slick, slanted, pot-holed?  Your memory may tempt you to focus on the administration of the standardized field sobriety tests, but many law enforcement decisions are made prior to asking you to step from the car.  The officer writes these important details in his report.  Make sure your attorney knows your version of events.  Remembering what you and the officer said is vital to establishing your defense.  Details of what happened at the station are also important.  How long were you in the cruiser?  How many officers were on the scene?  Who, if anyone, searched your car?  At the station, where were you placed prior to the test?  What, if anything, was read to you by the officer?  Try to be as precise as possible and write down exact quotes when you remember them.  Another way to protect yourself is to take pictures of your car and of the location of the stop.  The location may be vital in any number of ways in establishing the validity of the field tests and may possibly explain your driving habits on that roadway.  If the officer alleges that your tail light was out, or that your license plate light was inoperable, pictures taken shortly after the incident may exonerate you.

Do not drive!  If your license has been suspended you should protect yourself by arranging for transportation for at least two weeks.  Taking a taxi, or the bus, or just huffing it is less cumbersome than an additional charge of driving under a DUI suspension which carries additional mandatory jail time in Ohio.  You should also find out what ramifications will take place at your job.  If you have a CDL, you cannot drive under the CDL until the charges are resolved.  Active-duty military personnel also have obligations which may prove difficult without a license.  Losing your right (it’s not a privilege in my opinion) to drive is terrible.  It is my opinion that, to many people, the pre-conviction suspension is the worst punishment that they will incur in the entirety of this experience.  Address your particular situation with a qualified and competent DUI attorney.

Reasonable doubt comes from the recollection of events in a coherent and believable manner.  Protect yourself by taking the time to record what happened and by acting responsibly.

2. EDUCATE YOURSELF

DaytonDUI.com was started with the intent that you could find reliable information that would allow you to evaluate your case and choose an attorney.  Education about your charge will make you better equipped to find the attorney that is right for you.  A good place to start is the article “How to Hire a DUI Attorney” [linked HERE].  Ask everyone you know if they have had good or bad experiences with a particular attorney.  Talk to attorneys on the phone.  Meet with them in person.  Educate yourself about the particular court that you are going to, and the prosecutor, and the location of the court.  Check the credentials of the DUI attorneys in your area. [See HERE for a biography of Charles M. Rowland] Sometimes the scariest part of your DUI experience will be not knowing what the court process is like.  Good attorneys will try to help you by answering your questions and not trying to take advantage of your vulnerability at this critical time.  [See HERE for a video of Charles M. Rowland II explaining the Court Process].

My dad always said, “If you know how somebody gets paid, you’ll never get ripped off.”  Have a discussion with potential attorneys about how they expect to get paid and what you can expect for that service.  Ask who will be handling your case; will it be the attorney you are meeting with or an associate.  Ask how many cases they have tried in that court and whether or not they will listen to what you want.  One-size fits all is great from some things, but not for legal services.  Take control and get what you pay for.  Educate your self about your circumstances and your options so that the DUI experience is less traumatic.

3. EMPOWER YOURSELF

Some people come to my office, drop the ticket on my desk and expect me to take care of it.  Others want to understand every aspect of a DUI case from beginning to end.  I will work to make sure that you are taken care of in a manner that meets your expectations.  I will conform to what you need your attorney to be.  Now is not the time to retreat into yourself, but you must call on your inner champion to make the best decisions possible under the circumstances.  Everything we do at DaytonDUI is designed to provide you with a sense that your case is going to be handled to the best of our ability.  We have a great staff, good on-line and printed material, the best DUI library around and a proven track record.  We want you to win your case and put a bad experience behind you.  If you want to find out more, please check our blog or call Charles M. Rowland II at 937-318-1384 or 1-888-ROWLAND.

“Strength does not come from winning. Your struggles develop your strengths. When you go through hardships and decide not to surrender, that is strength.” -Arnold Schwarzenneger-

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Invalid Consent Leads To Exclusion Of Blood Test

April 30th, 2012

Back of an Ambulance

If your DUI case involves an automobile accident, you may be taken to the hospital.  In this setting it is likely that an investigating officer will request a sample of your blood.  Frequently, the issue of consent will be raised.  Your Ohio DUI lawyer can challenge the validity of the consent and whether or not the consent was made knowingly and voluntarily.  These issues were recently addressed in State v. Rawnsley, 2011-Ohio-5696.

On April 24, 2010, Defendant Ann Rawnsley was involved in a two-car accident which resulted in sufficient injuries that she was removed to Miami Valley Hospital by ambulance.  Injuries to the other driver were so serious that Rawnsley was charged with aggravated vehicular assault.  An officer followed her to the hospital to continue the investigation that began at the scene.  The officer had gathered sufficient evidence to believe that Ms. Rawnsley may be driving while impaired by alcohol.  Without consent, a blood draw requires probable cause and either a warrant, or exigent circumstances justifying a search without a warrant.  Thus, if the defendant were under arrest, the consent for a chemical test of their blood breath or urine is presumed.  The “implied consent” statute specifies that: “Any person who operates a vehicle * * * within this state * * * shall be deemed to have given consent to a chemical test or tests of the person’s whole blood, * * * breath, or urine to determine the alcohol * * * content * * * if arrested for a violation of division (A) or (B) of R.C. 4511.19.” R.C. 4511.191 (emphasis added). If Rawnsley had been arrested, it would not  be necessary to engage in a Fourth Amendment consent-to-search analysis – she would have been deemed to have consented, and would have had no constitutional right to refuse.  Here, however, the evidence adduced at the motion to suppress demonstrated that the police officer never placed Rawnsley under arrest.  Instead, the officer was following departmental policy not to arrest a person who is being admitted to the hospital.

At the hospital, a police officer read to the defendant an Ohio BMV form that informed the defendant of the consequences of consenting to a blood test and refusing a blood test.  ”The provision for an immediate suspension of a driver’s license upon refusal to submit to a chemical test is contained in R.C. 4511.191(B)(1). This provision, like the implied consent, itself, is expressly predicated upon the fact that the person who is subject to the suspension has been arrested for Operating a Vehicle while Under the Influence. There is no provision for an automatic suspension-upon-refusal for a person, like Rawnsley, who has not beenarrested for OVI.” Id. at p. 19.  When the officer told Rawnsley that she would be “subject to an immediate, automatic driver’s license suspension if she did not consent to the blood draw, that was not true. Because Rawnsley was misadvised by the police officer that there would be a serious adverse consequence if she decided not to waive her Fourth Amendment right (not to be subjected to a warrantless search) and consent to the blood draw, her consent and concomitant waiver was not knowing and intelligent. See State v. Rice (1998), 129 Ohio App.3d 91.

In Schmerber v. California (1966), 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908, the Supreme Court of the United States held that the taking of a blood specimen for the purpose of testing it for blood alcohol concentration is permitted without a warrant if there is probable cause and if there are exigent circumstances.  Here, the officer “admitted [he] did not consider making any effort to obtain a warrant.” Rawnsley. at p. 25.  The Court ruled that the police in order to establish an exigent circumstance, had the obligation, particularly since the collision occurred not in the early morning hours but at approximately 10:55 p.m., to draft a probable cause affidavit and attempt to reach a judge, or to at least explain why this was not practical. If, after a good faith effort, such an attempt was unavailing, the court, without hesitation, would conclude that exigent circumstances existed. However, without such an attempt, or any explanation concerning why such an attempt was not practical, the court concluded that exigent circumstances did not exist.

DUI attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in Dayton, Springfield, Kettering, Vandalia, Xenia,Miamisburg, Springboro, Huber Heights, Oakwood, Beavercreek, Centerville 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 to40404. DaytonDUI is also available on Facebook 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.

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Posted in Blood & Urine Tests, DUI Case Law

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