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DUI and Ohio Boating Laws

March 29th, 2012

Boating Season Is Approaching Which Means Increased Watercraft Patrols.

Bass boat, aluminum, center console, on trailer

Boating Under the Influence is illegal in Ohio. 2001 Sub. S.B. 123, eff. 1-1-04 sought to unify the drunk driving provisions with Ohio’s boating laws.   O.R.C. 1547.11(A)(1)  to O.R.C. 1547.11(A)(6) prohibit a person from operating or being in physical control of a vessel underway or manipulating water skis, aquaplanes, or similar devices while under the influence of alcohol or drugs.

O.R.C. 1547.11(A)(1) is the impairment provision of the law, preventing operation or physical control while under the influence.  The law also has a provision preventing operation with a prohibited level of alcohol which it sets at the same prohibited level (.08) as the DUI/OVI law.  Unlike the DUI/OVI law, there are no high-tier provisions which apply to boating. A third section of the law prohibits operation or physical control with a concentration of certain controlled substances (marijuana, cocaine, amphetamine, et al.) or metabolites of the same.  This section of the law is identical to the DUI-drug provisions found in O.R.C. 4511.19(A)(1)(j).

Subsequent amendments to the law, 2007 Am. Sub. S.B. 17, eff. 9-30-08, allows for forced blood draws for persons with two or BUI offenses.  A BUI offense can be used to enhance a subsequent DUI/OVI  offense. O.R.C. 4511.181(A)(6)-(7).  Some important differences in Ohio’s BUI law, stem from the fact that Ohio does not require an operator’s license to operate a watercraft.  Therefore, no administrative license suspension provisions are in the law.  Instead, the chief of the Division of Watercraft gives written notice that you are prevented from operating or being in physical control of a watercraft (or from registering a watercraft) for one year from the date of the alleged violation.  Another key difference is that a fourth or subsequent BUI offense is not subject to felony enhancement.

Penalties for Boating Under the Influence offenses are set forth at O.R.C. 1547.99 and are similar to those provided for DUI/OVI offenses.  Boating Under the Influence is a first degree misdemeanor and is subject to a minimum 3-day jail sentence and a maximum 6 months in jail.  The 3-day jail sentence can be served in a qualified driver intervention program.  The minimum mandatory fine for a first BUI offense is $150.  A second offense within 6 years carries a mandatory 10 day jail sentence, but the minimum mandatory fine is still $150.  A third offense requires a minimum of 30 days in jail.  

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.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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Posted in DUI & Boating

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DUI Science and More Faulty Breath Machine Assumptions

December 8th, 2011

Evidential Breath Testing Measures The Amount of Alcohol In Your Breath Not in Your Brain!

A chimpanzee brain at the Science Museum London

One of the faulty assumptions underlying evidential breath testing is the assumption that the tests are measuring the ability of alcohol to impair your brain.  They do not.  The breath test does not care how, or even if, the alcohol is impairing your brain only that it is in your breath via your lungs via your blood.  The machines do not test venous blood but arterial blood utilizing the scientific principle of Henry’s Law.  As alcohol can be at different rates throughout your body, the machine is not measuring impairment.

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.

When you start looking closely at the built-in assumptions underlying the tests, you begin to see that evidential breath testing is not the whole truth and nothing but the truth.  Like any other evidence offered in the courtroom it should be vigorously cross-examined just like any other witness against you.

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

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Posted in Blood & Urine Tests, Breath Testing

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DUI Science: Fat vs. Thin/Man vs. Woman/Young vs. Old

October 6th, 2011
Marine of the United States Marine Corps runs ...

After consuming alcohol, will a fat person or a thin person have a lower BAC?

Alcohol loves water and will move into spaces where water is the most prevalent.  Fatty portions of the body have a low water content and absorb little of the alcohol, while muscular portions of the body have a high water content and absorb much alcohol.  As it is carried to all parts of the body by the blood, the alcohol distributes itself in proportion to the water content of the various parts of the body.  It is the presumed relationship between the amount of alcohol in the blood at a given time and the amount of alcohol which will be present in the breath which is it he basis for the theory that we can test breath and infer a BAC result.

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.

Is this fair?  It will be up to your experienced DUI trial counsel to make the argument that the breath test machine unfairly evaluates the inference of alcohol in your bloodstream.  Hire an OVI attorney who has the understanding of DUI science, so that he or she can make the case to the jury.  This defense is not applicable in all cases and a careful and deliberate process should be used to determine if this is a valid defense in your case.  Charles M. Rowland II was the first attorney in the United States to earn a Forensic Sobriety Assessment certification and the only attorney in Ohio to hold such a distinction.  He has been trained in the same manner as law enforcement officers to administer and evaluate the standardized field sobriety tests as devised by the National Highway Traffic Safety Administration and he holds certification on both the BAC DataMaster and Intoxilyzer 8000 breath test machines.  If you want an attorney who has the experience to represent you and an attorney who limits his practice to the defense of the drunk driver, contact Charles M. Rowland II at (937)318-1DUI [318-1384] or 1-888-ROWLAND [888-769-5263] today.

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Posted in Blood & Urine Tests, Breath Testing, Field Tests (SFSTs), Illegal Police Stops

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Illegal Bath Salts, A Primer

September 7th, 2011

Methylenedioxypyrovalerone (MDPV) (“bath salts”, “Ivory Wave”, “plant fertilizer”, “plant food”,“Vanilla Sky”, “Energy-1”)

Methylenedioxypyrovalerone (MDPV) is a designer drug of the phenethylamine class. MDPV is structurally related to cathinone, an active alkaloid found in the khat plant, methamphetamine, and methylenedioxymethamphetamine (MDMA). MDPV is a central nervous system (CNS) stimulant and it was first seized in Germany in 2007. The abuse of MDPV is increasing, particularly in Europe and Australia. MDPV has been identified in products called “bath salts” which are sold on websites based in Europe.  MDPV is not approved for medical use in the United States.

MDPV (1-(1,3-benzodioxol-5-yl)-2-(1-pyrrolidinyl)- 1-pentanone; Chemical Abstract Service Number 687603- 66-3) is related in chemical structure to schedule I hallucinogenic substances (MDMA, MDEA) and to schedule I stimulants (cathinone, methcathinone). Its molecular formula is C16H21NO3 and its molecular weight is 275 g/mol. MDPV has a high melting point (estimated at 200oC) and is a solid at room temperature. MDPV is structurally related to MDMA and also to cathinone, with a ring-bearing substituent group. Cathinone derivatives, which bear ring-group substituents, have been reported to induce subjective effects similar to those induced by cocaine, amphetamine, and MDMA in humans. The subjective effects induced by ring-group substituted cathinones are feelings of empathy, stimulation, alertness, euphoria, and awareness of senses.  It has been demonstrated that MDPV administered to mice increased the extracellular levels of dopamine levels 60 min after administration of MDPV. Though MDPV increased dopamine levels, the effect was not as marked as the increases induced by methamphetamine or MDMA. (March 2011 DEA/OD/ODE)

Users of MDPV anecdotally report that they take 5 mg or less per session and there have been reports of cravings for MDPV by users. The acute side effects of MDPV include tachycardia, hypertension, vasoconstriction, and sweating. The duration of the subjective effects is about 3 to 4 hours and the side effects continuing a total of 6 to 8 hours after administration. Higher doses of MDPV have caused intense, prolonged panic attacks in stimulant-intolerant users. Users have reported bouts of psychosis induced by sleep deprivation and becoming addicted after using higher doses or using at more frequent dosing intervals. MDPV loses potency when it is put into solution.  MDPV has been identified in a seized product called “Ivory Wave”. It is sold as a “bath salt” with the label indicating “for novelty use only” without any instructions for dosage. “Ivory Wave” is sold in 500 mg packets on Internet sites based in Europe. MDPV has also been identified in a product called “Energy 1”, which is sold on United Kingdom- based websites.  User population information in the U.S. is very limited. There have been reports of MDVP being used predominantly by the youth population. MDPV data are not reported by any national drug study programs.

Currently, MDPV is not a scheduled drug under the Controlled Substances Act (CSA).

Information in this post is taken from information provided by the Drug Enforcement Administration, Office of Diversion. Orginal link here: http://www.deadiversion.usdoj.gov/drugs_concern/mdpv.pdf
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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.

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Posted in DUI & College, DUI, Drugs & Driving

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OVI Update: When is Late Too Late?

September 21st, 2010

In State v. Bower, 2010-Ohio-4420, Defendant Dustin Bowers was arrested for OVI (drunk driving) and a chemical test of his breath resulted in a BAC reading of .085.  He was given appointed counsel on September 11, 2010 and counsel filed for discovery pursuant to Crim.R. 16.  It was not until November 9, 2010 (62 days after the arraignment) that counsel filed for leave to file a motion to suppress.  The Court denied leave and the Defendant was found guilty. Defendant appealed and the 5th Dist. Ct. of Appeals denied his appeal.  The court reasoned that it will not disturb the court’s ruling absent an abuse of discretion.

Pursuant to Crim.R.12(D), all pre-trial motions must be filed within 35 days of the arraignment.  This puts the Ohio OVI lawyer between a rock and a hard place.  If no motion is filed, then your client loses his/her opportunity to prevent improper evidence from coming before the jury.  If, however, you file a motion in every case, court’s may discount (and in some cases dismiss) your motions because they are not specific. See Related:  Trial Attorney Toolkit -Motion in Limine; DUI Motion to Suppress; Who has the burden of going forward?; It is incumbent upon the attorney to protect his client by walking this procedural minefield.

This decision places great emphasis on hiring an Ohio OVI attorney who is fully aware of what is required to protect and defend you.  Charles M. Rowland II dedicates his practice to defending the accused drunk driver. If you are in need of counsel, contact Charles Rowland at (937) 318-1DUI (318-1384), 1-888-ROWLAND (888-769-5263) or visit www.DaytonDUI.com.

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