Posts Tagged ‘dayton ovi law’

There’s A New Standardized Field Sobriety Tests “Guide”

November 18th, 2013

standardized field sobriety testsStandardized Field Sobriety Tests are commonly known as the roadside activities that police officers ask drivers to perform if the officer suspects that the driver is impaired by alcohol or another impairing substance. We call them “stupid human tricks.”  Contrary to popular understanding and belief, many of these tests have little basis in science, and the ones that do are frequently performed incorrectly.

NHTSA has developed a new “GUIDE” in assessing Standardized Field Sobriety Tests.  The new (March, 2013) version focuses more on having law enforcement recognize and administer tests to determine impaired driving by substances other than alcohol.  No new scientific studies regarding the scientific validity of the Standardized Field Sobriety Tests are given and no improvements to the process are undertaken. This is the latest in many revisions to the NHTSA Standardized Field Sobriety Testing Manuals (1987, 1992, 1995, 2000, 2002, 2004, 2006 (R2/06 and R8/06 R2/06/09).

Instead of improving the tests, the author’s have decided to take out one of the basic factual components of the entire Standardized Field Sobriety Test scheme – the preface.  Yep, that’s right; the preface has been targeted for change.  Recall the following preface to the most recent NHTSA manual.

The procedures outlined in this manual describe how the Standardized Field Sobriety Tests (SFSTs) are to be administered under ideal conditions. We recognize that the SFSTs will not always be administered under ideal conditions in the field, because such conditions will not always exist. Even when administered under less than ideal conditions, they will generally serve as valid and useful indicators of impairment. Slight variations from the ideal, i.e., the inability to find a perfectly smooth surface at roadside, may have some affect on the evidentiary weight given to the results. However, this does not necessarily make the SFSTs invalid.

Why target the preface?  It is this author’s opinion that the preface was being used by DUI defense attorneys to place the Standardized Field Sobriety Tests in proper context before the jury in DUI prosecutions.  Just like other areas, the government would rather hide behind words rather than give attorneys defending citizens’ freedom something that has proven to aid jurors in laying bear the problems with these tests. Now more than ever, it is important to have an attorney who understands what they are doing and why they are doing it.  Sadly, many attorneys will never know of the change and more innocent people will be convicted based on pseudo-scientific stupid human tricks.

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.”

 Find information on standardized field sobriety tests and other city-specific info at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburgSpringboro,Huber HeightsOakwoodBeavercreekCenterville

Dayton DUI: Breath Test Defenses in Ohio

October 7th, 2013

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 & Your Brain: Who Cares About Impairment?

September 4th, 2013

OVI Science

More Faulty OVI Breath Test Assumptions

One of the faulty assumptions underlying OVI 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 for OVI 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 OVI 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.

Ohio 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 city-specific Ohio OVI information at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburgSpringboro,Huber HeightsOakwoodBeavercreekCenterville 

Ohio DUI Blood Test: How to Win A Blood Test Case

April 22nd, 2013

In order to successfully defend a blood test case, a DUI defense lawyer must be familiar with Ohio’s DUI law (O.R.C. 4511.19) and the Ohio Administrative Code sections which apply to the collection, storing, transporting and testing of the whole blood, blood plasma and/or blood serum specimen.  Amphetamine, cocaine, heroine, Marijuana, Methamphetamine, Phencyclidine and L.S.D. are specifically mentioned in Ohio’s DUI/OVI statute as illegal controlled substances. The law states how much of each substance must be detected in a chemical test of urine, whole blood, blood plasma, and/or blood serum in order to sustain a charge.  A blood test is seen as the most accurate and reliable method of testing but is the most invasive.  The blood test is increasingly favored by law enforcement officers because it allows them to expand the parameters of their suspicion to include illicit and prescription drugs. Sometimes the blood test will be requested after a breath test produces a result under the .08% BAC limit.  If this is the case, your attorney should employ more traditional factual defenses such as a lack of probable cause to suspect drug use before leaping to a more scientific challenge to the collection, storage, transporting or testing of the blood sample.  If the facts support a blood test then your attorney must hold the State to its proof.

The blood specimen must be collected by an authorized person within three hours of the alleged violation according to Ohio Revised Code 4511.19(D). It reads in pertinent part,

4511.19(D)(1)(b). In any criminal prosecution or juvenile court proceeding for a violation of division (A) or (B) of this section or for an equivalent offense that is vehicle-related, the court may admit evidence on the concentration of alcohol, drugs of abuse, controlled substances, metabolites of a controlled substance, or a combination of them in the defendant’s whole blood, blood serum or plasma, breath, urine, or other bodily substance at the time of the alleged violation as shown by chemical analysis of the substance withdrawn within three hours of the time of the alleged violation. The three-hour time limit specified in this division regarding the admission of evidence does not extend or affect the two-hour time limit specified in division (A) of section 4511.192 of the Revised Code as the maximum period of time during which a person may consent to a chemical test or tests as described in that section. The court may admit evidence on the concentration of alcohol, drugs of abuse, or a combination of them as described in this division when a person submits to a blood, breath, urine, or other bodily substance test at the request of a law enforcement officer under section 4511.191 of the Revised Code or a blood or urine sample is obtained pursuant to a search warrant. Only a physician, a registered nurse, an emergency medical technician-intermediate, an emergency medical technician-paramedic, or a qualified technician, chemist, or phlebotomist shall withdraw a blood sample for the purpose of determining the alcohol, drug, controlled substance, metabolite of a controlled substance, or combination content of the whole blood, blood serum, or blood plasma. This limitation does not apply to the taking of breath or urine specimens. A person authorized to withdraw blood under this division may refuse to withdraw blood under this division, if in that person’s opinion, the physical welfare of the person would be endangered by the withdrawing of blood.

The three hour rule is a change from Ohio‘s previous law which gave the State only two hours in which to obtain a sample.  The time requirement has been adopted by the Ohio Supreme Court in Cincinnati v. Sand, 43 Ohio St.2d 79, 330 N.E.2d 908 (1975) and more definitively at Newark v. Lucas, 40 Ohio St.3d 100, 532 N.E.2d 130 (1988),  where the court held that tests in test cases (cases involving a violation of the prohibited alcohol level) the would only be admissible when drawn within the time limitations of the statutes.  What about in refusal cases?  After some confusion following the Lucas decision, the Ohio Supreme Court ruled in State v. Mayl, 106 Ohio St.3d 207, 833 N.E.2d 1216 (2005) that the state must show substantial compliance with R.C. 4511.19(D) and the Department of Health regulations before the test results are admissible.  A door for use outside of the three-hour limitation  exists, however.  In Columbus v. Taylor, 39 Ohio St. 3d 162, 529 N.E.2d 1382, the Court gave trial court’s broad discretion to allow in retrograde extrapolation evidence if properly supported by an expert.  In State v. Hassler, 115 Ohio St.3d 322, 875 N.E.2d 46 (2007), the Supreme Court back-tracked on its Mayl decision in an aggravated vehicular homicide case, allowing in expert-supported testimony of a blood test drawn more than seven (7) hours after an accident.  This may be a return to the Lucas rule or it may be a case that is limited only to aggravated vehicular homicide cases.  A common scenario in which the three-hour limitation is raised is in situations where the police did not witness operation of the vehicle, like in an accident.  Another possible issue that trial counsel can raise is a challenge to the “beyond the three hour test” is an Evidence Rule 403 argument that the probative value of the evidence is outweighed by the unfair prejudice of its admission.  Sources for this article include Intoxication Test Evidence, Fitzgerald & Hume and Ohio Driving Under the Influence Law, 2009-2010 ed.,  Weiler & Weiler

In Ohio, the Director of Health adopts Administrative rules which govern analytical testing for evidential use.  The Ohio rules for collection of blood specimens are set forth at Ohio Administrative Code.  Ohio Administrative Code 3701-53-03(A) sets forth the techniques and methods for determining the concentration of alcohol in blood, urine and other bodily substances.  Pursuant to that rule, Ohio allows for testing including gas chromatography and enzyme assays.  Gas Chromatography is the most reliable method for alcohol testing in blood and urine and has become the accepted gold standard in forensic toxicology.  Gas chromatography specificity for ethanol (drinking alcohol) is very good and this method can also identify and quantify other organic or interfering substances such as methanol and isopropanol. The two commonly used techniques for analyzing the gases are “direct injection” and “headspace analysis.”  The devise works by utilizing a flow-through tube known as the column.  The different chemicals in the sample pass via a gas stream at different rates depending on their interaction with the column’s filling.  As the chemicals exit the end of the column they are detected and electronically identified.

The method used to analyze the defendant’s blood must have documented sensitivity, accuracy, precision and linearity.  O.A.C. 3701-53-03(A).  The method must also be based on procedures which have been published in peer reviewed or juried scientific journals or thoroughly documented by the laboratory.  O.A.C. 3701-53-03(A).  To challenge a blood test, it is important to know if the State has tested the blood as whole blood or as serum/plasma.  Operation with a concentration of alcohol is prohibited if the concentration in whole blood is equal to or exceeds .08%, R.C. 4511.19(A)(1)(b).  However, the prohibited concentration for whole blood is a concentration equal to or exceeding .096%, R.C.4511.19(A)(1)(c).  The high teir (super-OVI) standard for whole blood is greater than .17% and the prohibited level for blood serum or plasma is greater than.204%.  If your attorney does not understand the difference between a whole blood and a serum/plasma test, he or she may give incorrect advise based on an incorrect assumption.  Secondly, studies suggest that plasma and serum tests can be 16 to 21 percent higher than whole blood tests (Taylor, 2000; Fitzgerald, 1999).  If the report that you receive from the Crime Lab does not specify whether whole blood or serum was tested, consider making a request for independent testing of the sample.  O.A.C. 3701-53-01(B) requires at least on copy of the written procedure manual required by paragraph (D) of O.A.C. 3701-53-06 shall be on file in the analytical test area.

Ohio Administrative Code 3701-53-05 sets forth the manner in which the blood samples are to be collected.   The Defendant’s blood sample must be collected using an aqueous solution of a non-volatile antiseptic on the skin pursuant to O.A.C. 3701-53-05 (B) and cannot be collected using alcohol as a skin antiseptic which is prohibited by O.A.c. 3701-53-05(B).  O.A.C. 3701-53-05(E) requires the “blood containers shall be sealed in a manner such that tampering can be detected and have a label which contains at least the following information:

  1. Name of suspect;
  2. Date and time of collection;
  3. Name or initials of person collecting the sample; and
  4. Name or initials of person sealing the sample.

If a blood sample is not properly preserved it can decompose.  One of the results of decomposition is the creation of alcohol.  According to Lawrence Taylor in his seminal Drunk Driving Defense, 6th Ed., pp. 561, “Ethyl alcohol is generated by fermentation of carbohydrates and proteins in the blood sample.  This occurs through the actions of various microorganisms.  The simplest and one of the most common processes is the breakdown of enzymes by one of various species of the yeast Candida, such as Candida albicans.”  The results of the fermentation in the blood vial is dramatic.  For example, a blood sample which contains no alcohol can decompose and cause a reading of .25 percent or even higher, depending on the stage of decay. (See Taylor, Id. at 561).  Proper handling of the blood sample requires the refrigeration of the blood sample. O.A.C. 3701-53-05(F).  The problem is that refrigeration can only slow down the decomposition process not end it completely.  Another protective measure is the addition of a preservative, such as sodium fluoride.  Scientific studies (as cited in Taylor, Id. at 563) suggest that sodium fluoride can be ineffective in preventing alcohol production by Candida albicans.  Counsel should also be aware of common human errors which can occur following collection of the blood sample.  It is not at all uncommon for the blood to be collected and the vial not inverted to allow the mixing of the preservative and the sample.  Make sure that your DUI defense attorney is aware of these problems which may prevent the introduction of your blood test, or provide you with a viable defense in your case.

As blood testing becomes a more favored form of evidential testing in Ohio, attorneys must become familiar with flaws in the testing protocol which may create detriments to their clients.  One such area for consideration is the way in which the blood specimen is handled from collection site to the property room to the Court.  Most blood specimens are collected in Vacutainer tubes which contain pre-measured amounts of preservatives and anticoagulants.  Mixing the specimen and the contents of the tube must be done in a prescribed manner involving the gentle inversion of the tube eight to ten times.   The blood must be mixed properly with the preservative to stop the process of glycosis which could generate alcohol fermentation.  Obviously if your blood sample is producing its own alcohol, the test is flawed to the detriment of the subject.  The anticoagulant stops the blood from clotting so that the specimen can be centrifuged and tested pursuant to headspace gas chromatography.  If the tubes are inverted too vigorously, the red blood cells can be broken down.  Hemolysis is the proper name for this breakage of the red blood cells.  Hemolysis can be detected because it leaves a colored tinge to the serum or plasma fluid.  This is of vital importance to the integrity of the test because the method reading is color density dependent.

Your attorney should also file a detailed discovery request requiring the lab to document the chain of custody and a request that the sample be made available for private testing by your privately retained expert.  Ohio Administrative Code 3701-53-06(A), requires that the, “[c]hain of custody and the test results for evidential alcohol and drugs of abuse shall be identified and retained for not less than three years, after which time the documents may be discarded unless otherwise directed in writing from a court. All positive blood, urine and other bodily substances shall be retained in accordance with rule 3701-53-05 of the Administrative Code for a period of not less than one year, after which time the specimens may be discarded unless otherwise directed in writing from a court.”
Your attorney should also demand proof that the laboratory has complied with each of the additional requirements set forth in O.A.C. 3701-53-06 which include:

(B) The laboratory shall successfully complete a national proficiency testing program using the applicable technique or method for which the laboratory personnel seek a permit under rule 3701-53-09 of the Administrative Code.

(C) The laboratory shall have a written procedure manual of all analytical techniques or methods used for testing of alcohol or drugs of abuse in bodily substances. Textbooks and package inserts or operator manuals from the manufacturer may be used to supplement, but may not be used in lieu of the laboratory’s own procedure manual for testing specimens.

(D) The designated laboratory director shall review, sign, and date the procedure manual as certifying that the manual is in compliance with this rule. The designated laboratory director shall ensure that:

  1. Any changes in a procedure be approved, signed, and dated by the designated laboratory director;
  2. The date the procedure was first used and the date the procedure was revised or discontinued is recorded;
  3. A procedure shall be retained for not less than three years after the procedure was revised or discontinued, or in accordance with a written order issued by any court to the laboratory to save a specimen that was analyzed under that procedure;
  4. Laboratory personnel are adequately trained and experienced to perform testing of blood, urine and other bodily substances for alcohol and drugs of abuse and shall ensure, maintain and document the competency of laboratory personnel. The designated laboratory director shall also monitor the work performance and verify the skills of laboratory personnel;
  5. The procedure manual includes the criteria the laboratory shall use in developing standards, controls, and calibrations for the technique or method involved; and
  6. A complete and timely procedure manual is available and followed by laboratory personnel.

Your Ohio DUI attorney should also file a detailed discovery request for information on the personnel conducting the testing to see if the person meets the required qualifications as set forth in Ohio Administrative Code 3701-53-07.  Did the laboratory technician who analyzed the blood complete the proficiency exam, administered by a national program for proficiency testing for the approved technique or method of analysis used to test the blood, in a satisfactory manner, pursuant to OAC 3701-53-07(A)(2) for alcohol and OAC 3701-53-07(B)(2) for drugs of abuse?  Was the laboratory technician who analyzed the blood certified by the designated laboratory director that he or she is competent to perform all procedures contained in the laboratory’s written procedure manual for testing specimens, pursuant to OAC 3701-53-07(A)(2) for alcohol and 3701-53-07(B)(2) for drugs of abuse?  Did the laboratory technician who analyzed the blood meet the requirements set forth in OAC 3701-53-07 (A)(2)(a-d) for alcohol testing and OAC 3701-53-07(B)(2)(a-d) for drug testing?  Did the person analyzing the blood sample have a laboratory director’s permit or a laboratory technician’s permit issued by the director of health under OAC 3701-53-09(A)(1) for alcohol testing and (A)(2) for drug testing; and if not , was the designated laboratory director who performed the tests, the testing technician under the general direction of a laboratory director pursuant to OAC 3701-53-07(A) for alcohol testing and (B) for drug testing?  Did the person analyzing the blood, if they were a laboratory technician, conduct a technique or method of analysis that was listed on the laboratory director’s permit, pursuant to OAC 3701-53-07(A) for alcohol testing and 3701-53-07(B) for drug testing?  And finally, did the designated director of the laboratory where the urine was analyzed meet the qualifications for said laboratory director’s permit, pursuant to OAC 3701-53-07(A)(1) for alcohol testing and OAC 3701-53-07(B)(1) for drug testing?  Ohio Administrative Code 3701-53-08 sets forth the requirements that lab personnel pass surveys and proficiency tests.  Make sure your attorney’s discovery requests demands to see the results of these tests.

Ohio Revised Code Section 4511.191(A)(5) allows forced blood draws.  Officers may use “whatever reasonable means are necessary to ensure that the person submits to a chemical test of the person’s whole blood or blood serum or plasma.”  This section applies to persons who have two prior convictions but opens the door to zealous police who can obtain a warrant.  It also invites the adoption of “no-refusal” zones or efforts which have been adopted in some Ohio jurisdictions.  O.R.C. 1547.111(B) applies the “whatever means necessary” test to watercraft.  Ohio Revised Code 4511.191(A)(4) authorizes the State to withdraw blood from a corpse or from a person who is unconscious or from a person who is incapable of withholding consent.  Ohio Revised Code 4511.19(D)(1)(b) provides that courts may admit blood evidence upon consent of the tested “or a blood or urine sample…obtained pursuant to warrant.”

For the last seven years, I have focused exclusively on the complex field of DUI defense.  I have attended the National College for DUI Defense specialization seminar at Harvard University and the Mastering Scientific Evidence in a DUI case.  I have spoken and written about DUI and I am the only attorney in Ohio to hold a Forensic Sobriety Assessment certification.  Don’t you want an attorney who will defend you with the same “by any means necessary” mentality that Ohio has adopted with which to secure your conviction?  I have experience winning blood test cases.  I  dedicate my practice to defending the accused drunk driver in FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburgSpringboro,Huber HeightsOakwoodBeavercreekCenterville 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 me 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 me at: CharlesRowland@DaytonDUI.com or write to us at 2190 Gateway Dr., Fairborn, Ohio 45324. “All I do is DUI

Dayton OVI: OVI Breath Test Defenses

March 23rd, 2013

OVI breath test defensesThis article will highlight OVI breath test defenses available to people in Ohio.  As we have extensively written on the topic of OVI 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.

OVI 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 OVI 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: OVI 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 OVI breath test defenses. From the article,

Defending an OVI in Ohiorequires 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 OVI 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 OVI 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 OVI 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: OVI 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 TestOVI 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 OVI 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 OVI 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 OVI 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 OVI breath test defenses and other city-specific info at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburgSpringboro,Huber HeightsOakwoodBeavercreekCenterville