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Arrested for DUI? You Are Innocent.

If you tell your friends that you were arrested for punching someone in the face, their overwhelming reaction will be, “Wow, what happened?”  If, however, you tell them that you were arrested for DUI, those same friends will say, “Oh, I’m so sorry.”  What is the difference?  When a person is facing a DUI charge, guilt is assumed.  How in the world did this happen?  How did our presumption of innocence, so valued in the American tradition of law, become so cheapened?  Perhaps we can look to the politically charged nature of the crime of drunk driving.  We can blame the media who gleefully report on the drunk driving charge, but often treat a reduction or dismissal as “winning on a technicality.”   Should accuse advocacy groups like MADD that have lead a decades long propaganda campaign against our core values?  Whatever the source, we have seen the diminishment of our rights to the point that the public believes that anyone accused of a DUI is assumed to be guilty.

In America you are presumed innocent until proven guilty beyond a reasonable doubt.  ”Presumption of innocence” serves to emphasize that the prosecution has the obligation to prove each element of the offense beyond a reasonable doubt and that the accused bears no burden of proof.  This presumption is ancient, dating back to the Old Testament.  In Genesis 18:23-32, it states, “Abraham drew near, and said, “Will you consume the righteous with the wicked? What if there are fifty righteous within the city? Will you consume and not spare the place for the fifty righteous who are in it? What if ten are found there? The Lord said, “I will not destroy it for the ten’s sake.”  Latin legal principle provided that ei incumbit probatio qui dicit, non qui negat (the burden of proof rests on who asserts, not on who denies).  Relying on this tradition Maimonides, a twelfth-century legal theorist looked to Exodus 23:7, “the innocent and righteous slay thou not” and argued against the use of presumptive evidence, concluding, “it is better and more satisfactory to acquit a thousand guilty persons than to put a single innocent one to death.”  In the De Laudibus Legum Angliae, c. 1470, Sir John Fortescue argues that “one would much rather that twenty guilty person should escape the punishment of death, than that one innocent person should be condemned and suffer capitally.”  In 1678, Lord Hale says that , ”In some cases presumptive evidence goes far to prove a person guilty, though there be no express proof of the fact to be committed by him, but then it must be very warily pressed, for it is better five guilty persons should escape unpunished than one innocent person should die.” He further observes: “And thus the reasons stand on both sides, and though these seem to be stronger than the former, yet in a case of this moment it is safest to hold that in practice, which hath least doubt and danger, quod dubitas, ne faceris.”  The principle and the concomitant prosecutor’s duty was referred to in the English Common Law and the “golden thread” by Lord Sankey, who wrote in Woomington v. DPP [1935]  AC 462, “throughout the web of the English criminal law one golden thread is always to be seen – that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defense of insanity and subject to any statutory exception…”

The principle of presumed innocence was accepted in America even before we were a county.  On Ocotber 3, 1692, Increase Mather relied upon Fortescue to decry the Salem Witch Trials writing, “It were better that Ten Suspected Witches should escape, than that the Innocent Person should be Condemned.” Benjamin Franklin, writing in a letter of 1785 stated it as, “it is better [one hundred] guilty Persons should escape than that one innocent Person should suffer. The words “Innocent Until Proven Guilty” do not appear in the United States Constitution but many provisions rely upon the proposition.  The concept is embodied in several provisions of the Constitution, however, such as the right to remain silent and the right to a jury and the 14th Amendment.  The presumption of innocence principle supports the practice of releasing criminal defendants from jail prior to trial. Based upon this premise, the Eighth Amendment to the U.S. Constitution states that excessive bail shall not be required, but it is widely accepted that governments have the right to detain through trial a defendant of a serious crime who is a flight risk or poses a danger to the public. In such cases the presumption of innocence is largely theoretical but deserving of, and receiving, special constitutional protection.

In 1895, the U.S. Supreme Court, in a decision in the case Coffin v. United States, 156 U.S. 432; 15 S. Ct. 394, traced the presumption of innocence, past England, Ancient Greece and Ancient Rome, to Deuteronomy.  The Coffin case stands for the proposition that at the request of a defendant, a court must not only instruct on the prosecution’s burden of proof–that a defendant cannot be convicted unless the government has proven his guilt beyond a reasonable doubt–but also must instruct on the presumption of innocence–by informing the jury that a defendant is presumed innocent. The Court stated, “The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.”  Much later in Taylor v. Kentucky, 436 U.S. 478, 98 S.Ct. 1930, 56 L.Ed.2d 468 (1978), the United States Supreme Court described the presumption of the innocence of a criminal defendant as an assumption of innocence that is indulged in the absence of contrary evidence. It is not considered evidence of the defendant’s innocence, and it does not require that a mandatory inference favorable to the defendant be drawn from any facts in evidence.  The Supreme Court has required, under some circumstances, a court should issue jury instructions on the presumption of innocence in addition to instructions on the requirement of proof beyond a reasonable doubt. Id.  A presumption of innocence instruction may be required if the jury is in danger of convicting the defendant on the basis of extraneous considerations rather than the facts of the case.

The rights associated with the presumption of innocence have become a staple of modern democratic ideals and have been included in several important international legal codes and constitutions, including:

  • In the South African Constitution, section 35(3)(h) of the Bill of Rights states: “Every accused person has a right to a fair trial, which includes the right to be presumed innocent, to remain silent, and not to testify during the proceedings.”
  • In the 1988 Brazilian constitution, article 5, section LVII states that “no one shall be considered guilty before the issuing of a final and unappealable penal sentence”.
  • The Constitution of Russia, in article 49, states that “Everyone charged with a crime shall be considered not guilty until his or her guilt has been proven in conformity with the federal law and has been established by the valid sentence of a court of law”. It also states that “The defendant shall not be obliged to prove his or her innocence” and “Any reasonable doubt shall be interpreted in favor of the defendant”.
  • The Universal Declaration of Human Rights, article 11, states: Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which they have had all the guarantees necessary for their defence. (from Wikipedia, original link HERE).
In short, the principle of “innocent until proven guilty beyond a reasonable doubt” is a fundamental right recognized as one of the great gifts bestowed by democratic government on its citizens.  BUT INNOCENT UNTIL PROVEN GUILTY DOES NOT EXIST FOR DUI DEFENDANTS! 
THE DUI EXCEPTION TO THE CONSTITUTION
If you are stopped by law enforcement and the officer believes he has probable cause to arrest you for operating a vehicle impaired you most likely going to lose your license.  You are not innocent until proven guilty, but presumed to have broken the law.  According to Ohio Revised Code4511.191, if you are arrested on suspicion that you are operating a vehicle while impaired (commonly called a DUI) and you take a chemical test which produces a result which is over the per se limit as set by the Ohio Department of Health, your license will be suspended immediately. Depending on previous offenses or refusals, you can have your license suspended for a period of 1 year to 5 years.  The presumption of innocence is so destroyed (in the DUI context) that even a NOT GUILTY finding by a jury cannot restore it.  Verdial Lewis was found not guilty of OVI in a trial in the Hamilton County Municipal Court.  Upon finding the defendant not guilty, the court terminated the (ALS)  administrative license suspension that was imposed for the driver’s refusal to submit to achemical test.  Upon appeal, the 1st District Court of Appeals held that a not guilty verdict on a charge of OVI did not permit termination of the (ALS) automatic license suspension of a motorist’s driver’s license for having refused to submit to a chemical test.  Even though the OVI charge was not a sufficient charge under Ohio law, the harshest provisions of the OVI suspension will remain in effect.  This ruling effectively prevents a not guilty trial verdict from protecting a defendant’s driver’s license when they refuse to take the test. State v. Lewis, 187 Ohio App.3d701, 2010-Ohio-2872.  If you have a commercial driver’s license an Ohio DUI charge can have devastating effects on your career.  Often clients who hold a commercial driver’s license fail to understand that Ohio’s OVI laws can affect your livelihood even if you receive a drunk driving charge while you are not operating a commercial vehicle.  If you plead guilty, or are found guilty, of an OVI (drunk driving) offense your commercial driver’s license will be taken away for one year.  If you are a second-time OVI offender, an Ohio OVI will result in an indefinite revocation of your CDL.  What is more, a court cannot give you privileges to operate a commercial vehicle while the case is pending and that a CDL suspension is in addition to any suspension that the court may impose.  If you drive for a living these penalties can be devastating for you and your family.
In Ohio, any person who operates a vehicle within the state of Ohio is said to have given his or her consent to a chemical test of their blood, breath, or urine to determine alcohol content if arrested for OVI (drunk driving).  Pursuant to recent changes in Ohio OVI law, an OVI suspect has 3 hours to comply with the request to submit to a test, and failure to do so within the 3 hour limit will be considered a “refusal.”  Recent changes allow the police to 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.”  In State v. Allen, 2010-Ohio-1257, 13-09-25(OHCA3), the defendant  was stopped and arrested for OVI and subsequently tested over 0.08. She was given an unsworn copy of the 2255 and then the officer submitted an unsworn copy of the 2255 to the Court and the BMV. The Tiffin Municipal Court upheld the suspension. The 3rd District Court of Appeals held that the suspension was validIMMEDIATELY upon testing over and it has nothing to do with the 2255 being sworn or not.  The Court held,
[T]o interpret the effectiveness of the ALS to be dependent on the Registrar receiving a sworn report is not only contrary to the express statutory language but would also serve to make the suspension process inefficient and impractical. If the ALS does not take effect immediately upon refusal to submit to the chemical test or upon the chemical test indicating a prohibited concentration of alcohol, then presumably a person’s driver’s license would remain effective until the Registrar processed the form.
If you ever question why an attorney would fight so hard for the accused drunk driver look no further than the decision (recently affirmed at Middleburg Hts. v. Henniger, 2006-Ohio-3715) setting forth the US Supreme Court DUI exception to the Fifth Amendment.  The United States Supreme Court has held that the admission of evidence at trial of a defendant’s refusal to take a chemical test does not violate the defendant’s Fifth Amendment privilege against self-incrimination or the Fourteenth Amendment right to due process. South Dakota v. Neville (1983), 459 U.S. 553, 564-566. Following Neville, the Supreme Court of Ohio has held that the trier of fact may consider a defendant’s refusal to submit to a chemical test as evidence in deciding whether the defendant was under the influence of alcohol. Maumee v. Anistik (1994), 69 Ohio St.3d 339, syllabus; see, also, State v. Spurlock (Dec. 15, 1995), Portage App. No. 95-P-0067.  The following language was taken from the recently decided Middleburg v. Henniger, cited above:

Ohio, like South Dakota in Neville, has adopted an implied consent statute, which is outlined in R.C. 4511.191. The consent statute spells out a bargain between drivers and the state. In exchange for the use of the roads within the state ofOhio, drivers consent to have their breath tested if a police officer has reason to believe the driver is intoxicated. Because an OVI suspect is already deemed to have consented to the breath test, “no impermissible coercion is involved when the suspect refuses to submit to take the test.” Neville, 459 U.S. at 562.

In Birkemer vs. McCarty, the UnitedStates Supreme Court concluded that there was a DUI exception to the constitution. And that, “Well, we really can’t tell you when you’re supposed to give Miranda in a DUI case. We do know that it is later than in other types of criminal investigations.” So, U.S. Supreme Court has told us we don’t know when Miranda is supposed to be given in DUI cases, but it is clearly some time later.  In 1989 the United States Supreme Court in Blanton vs. North Las Vegas, a DUI case, said, “There is no constitutional right to a jury trial in a DUI case, so long as it’s not punishable by more than six months in jail.”  Furthermore, Ohio has interpreted its DUI law (at the insistence of advocacy groups such as MADD) that any test within three hours that results in a blood-alcohol reading, it shall be presumed that it was the same at the time of driving.  Even though we know absolutely, as a matter of science, fact, that that is not true.
When you hear a DUI/OVI attorney decrying “junk science” that is used in court, they are most likely referring to the fact that the air blown into the breath test machine for purposes of testing cannot be the same air that is exchanged with the deep lung alveolar sacs. It is impossible to limit the breath test to limit itself to deep lung alveolar air. The theory breaks down because: IF THE MAJORITY OF AIR BEING MEASURED HAS NOTHING TO DO WITH THE BLOOD EXCHANGE THEN THE TEST IS NOT MEASURING THE AMOUNT OF ALCOHOL IN THE BLOOD.  The machine does not and cannot discriminate in its air sample.   It will measure and analyze the 1.5 liters of breath that it is given. The problems with the theory is that the breath machine has to assume a similar lung volume amongst the population. Common sense dictates that a 21 year old, 6 foot male in perfect health blowing 7 liters of air IS DIFFERENT than an 65 year old, 5 foot 2 inch woman who may only blow 1.5 liters.  The major injustice in DUI/OVI law in Ohio is that attorneys are prevented from attacking the “junk science” of breath tests machines due to the decision in State v. Vega. As amazing as it seems, Ohio has decided that if the government says the science is good enough, then attorneys cannot challenge it. Imagine if the same philosophy were used in other areas of criminal law. What if the Ohio legislature decided that eye-witnesses were inherently reliable and an attorney could not challenge them at trial. What is to stop them from saying that police officers are inherently reliable and they too are free from cross examination.  Does this sound consistent with the principle that you are innocent until proven guilty?  Does this sound like a principle that is consistent with any other aspect of American jurisprudence?  Does this sound fundamentally fair?  A man I greatly admire, DUI defense attorney Lawrence Taylor of California, has described DUI as a political crime which is fought by extremists who have used every tactic at their disposal to overcome the fairness inherent in the American constitution.  What is worse, is that the extreme advocacy has a deleterious effect not only on our system of justice, but also on our character.

DUI attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in DaytonSpringfieldKetteringVandaliaXeniaMiamisburgSpringboro,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 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. “All I do is DUI

Did You Sign The Ticket? (by DaytonDUI)

An often-overlooked piece of exculpatory evidence is your signature.

When the officer has read and explained your rights prior to conducting an evidential breath test, he or she will ask you to sign a form entitled the  BMV Form 2255 Notice of Administrative License Suspension.  Under Ohio Revised Code 4511.192 (A) “The officer SHALL give that advice in a written form that contains the information described in division (B) of [that] section and SHALL read the advice to the person. The form shall contain a statement that the form was SHOWN to the person under arrest and read to the person by the arresting officer…”  You will be asked to sign this document in order to establish that you were warned about the consequences of refusing to take the test.   How does it look?  This is a contemporaneous expression of your level of impairment that was made at the exact moment the officer was accusing you of being drunk.  How does it compare to the signature that you gave to the Ohio Bureau of Motor Vehicles when you got your license?  Jurors will get a chance to look at a side-by-side comparison of your fine motor skills.  If you add this testimony to other evidence which demonstrates a lack of impairment, it can be quite powerful.  Hire an attorney who can win your case.

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, Springboro, Franklin and throughout Ohio.  He has the credentials and the experience to win your case and has made himself the Miami Valley’s choice for DUI defense.  Contact Charles Rowland by phone at 937-318-1DUI (937-318-1384), 937-879-9542, or toll-free at 1-888-ROWLAND (888-769-5263).  For after-hours help contact our 24/7 DUI HOTLINE at 937-776-2671.  For information about Dayton DUI sent directly to your mobile device, text DaytonDUI (one word) to 50500.  Follow DaytonDUI on Twitter @DaytonDUI or Get Twitterupdates via SMS by texting DaytonDUI to 40404. DaytonDUI is also available on Facebook,www.facebook.com/daytondui and on the DaytonDUI channel on YouTube.  You can also email Charles Rowland at: CharlesRowland@DaytonDUI.com or write to us at 2190 Gateway Dr., Fairborn, Ohio 45324.

Defending The Accusation Of Slurred Speech (by DaytonDUI)

A very common observation by law enforcement in an impaired driving investigation is the presence of “slurred speech.”  Experience trial counsel will look to the totality of evidence to combat the damning accusation of slurred speech.

Many traffic stops are now captured on video tape.  As the quality of the recordings has improved we are often able to hear exactly what the officer is hearing.  Reasonable people can disagree as to whether or not the speech on a video is “slurred” and whether or not it was fair for the officer to describe the speech as slurred.  Another, more subtle method is to cross-examine the officer on his or her ability to obtain evidence based on the suspect’s answers.  It is logical to conclude that the suspect’s speech was not so slurred that the officer was not able to gather evidence. Another point that can be made is that the officer notes impaired speech at the one and only location the officer  is trained to note it in his or her training.  And at no other time does the speech appear in the officer’s report.  This evidence of absence is enhanced if the jury is given a narrative that the officer was rushing to confirm an erroneous conclusion that the suspect was impaired.

It is also fair to point out that there are other causes of slurred speech besides intoxication.  The medical term for slurred speech is  ‘dysarthria’ and, like other clues of impairment, can be attributable to multiple causes.  Being pulled over by law enforcement is a very stressful situation.  According to the medical site Health Guidance, slurred speech can be caused or enhanced by anxiety.

Anxiety

If you have ever been in a highly stressful situation then you might have noticed it becoming increasingly difficult to get your words out (which doesn’t help). This is a result of stress hormones and can be particularly bad in cases of anxiety disorder.

Another argument that can be used to combat the accusation of slurred speech is that the officer has no “baseline” observation upon which to base an accusation.  This is likely the first, and only, opportunity that the officer has to speak with the suspect.  As one client testified in court, “He just don’t know that’s how I talk.”  People who are familiar with the suspects speech pattern may be called to testify.  They can refute the accusation by offering their opinion on whether or not the suspect’s speech was impaired.  The DaytonDUI app which is available (for free) on Android has a function that will allow an accused driver to make a contemporaneous recording.  This recording will serve as a record of the defendant’s voice and can be used in court to fight the charge of DUI.

DUI attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in Fairborn, Dayton, SpringfieldKetteringVandaliaXeniaMiamisburgHuber HeightsBeavercreekCentervilleSpringboro, Franklin and throughout Ohio.  He has the credentials and the experience to win your case and has made himself the Miami Valley’s choice for DUI defense.  Contact Charles Rowland by phone at 937-318-1DUI (937-318-1384), 937-879-9542, or toll-free at 1-888-ROWLAND (888-769-5263).  For after-hours help contact our 24/7 DUI HOTLINE at 937-776-2671.  For information about Dayton DUI sent directly to your mobile device, text DaytonDUI (one word) to 50500.  Follow DaytonDUI on Twitter @DaytonDUI or Get Twitterupdates via SMS by texting DaytonDUI to 40404. DaytonDUI is also available on Facebook,www.facebook.com/daytondui and on the DaytonDUI channel on YouTube.  You can also email Charles Rowland at: CharlesRowland@DaytonDUI.com or write to us at 2190 Gateway Dr., Fairborn, Ohio 45324.

The Problems With Portable Breath Tests (by DaytonDUI)

Drink Driving Law & Motoring History

In possibly the best article you will ever read on portable breath testing, DUI attorneys Justin McShane and Josh Lee describe the portable breath test devises which are used by the Ohio State Highway Patrol as a “potentially dangerous, non-specific and non-selective measures at roadside.”  You can find the article HERE and in the Voice for the Defense.

The Problems of Fuel Cell Devices

1.1. Lack of Specificity20 for Ethanol

As PBTs are used for purportedly forensic purposes, their specificity for ethanol becomes a critical factor. The electrochemical detector is not specific for ethanol.21 Indeed, there is “much evidence to show” they are actually not specific for ethanol.22 Garriott’s Medicolegal Aspects of Alcohol lists methanol, isopropanol, n-propanol, and acetaldehyde as other alcohols that fuel cells can respond to in addition to ethanol.23 Other studies have also found fuel cells reacting to substances other than ethanol.24

A. W. Jones, PhD, a renowned toxicologist, reports that fuel cells will respond to compounds that contain the hydroxyl group, other than ethanol.25 In a later study, Jones again found that the fuel cell is not specific to ethanol and that other alcohols and aldehydes will also oxidize in the fuel cell.26 This is important because it has been found that in the alcohol family there are over 1,500 chemical compounds that are not found in alcoholic beverages.27 Moreover, it is claimed that ketones such as acetone are not detected by the fuel cell as they are with infrared devices.28 Interestingly, there is at least one documented case where a driver has tested over the legal limit for ethanol, due to acetone, when the driver had no ethanol in his system.29 The fuel cell device used on the stop had falsely reported isopropanol as ethanol.30 The individual had latent diabetes and had been fasting, causing acetone to be present in his system, which his body in turn reduced to isopropanol, resulting in a true false positive.31

In addition, there are documented cases of methanol being mistakenly reported as ethanol by fuel cell devices.32 Absent chromatographic separation, which PBTs do not employ, distinguishing ethanol from methanol is an extremely difficult task,33 if not an impossible one. Of import is that when a PBT detects ketones and hydrocarbons, it can mistakenly report them as ethanol and add to the breath alcohol concentration.

Further proof of the apocryphal nature of the manufacturers’ claims that these devices will not react to anything other than alcohol is documented on YouTube by one of the authors of this paper, Justin J. McShane, F-AIC, JD. The recording shows a .046 g/210L breath reading on an Intoximeters FST PBT, while free of ethanol and eating ordinary white bread.34 In addition to white bread, there are other cases of a fuel cell device falsely reporting milk, soda pop, and cigarette smoke as ethanol.35 Toothpaste (specifically Sensodyne) that contains Sorbitol, a type of alcohol, registers as ethanol on a fuel cell device.36 This has been independently verified in testing by the Boston Herald.37

Another source of Ethanol is by sugar fermentation. This process has been found to occur naturally in the human body when yeast from breads and carbohydrates are present.38 Informal tests at DWI/DUI seminars across the United States have shown results over the legal limit (0.08 g/210L of breath) merely by chewing pizza, bread, or hot dog buns.39 Common foods and drinks have even been found to contain alcohol. Diet 7-Up contains some small amounts of ethanol, and high-energy drinks such as Monster and 180 Energy contain several times more ethanol than Diet 7-Up.40Breads, pizza, English muffins, wheat bread, and apple walnut rolls have all been found to contain both yeast and ethanol.41 See the endnotes for tables containing more detailed information about the alcohol content of various soft drinks and baked goods, and other beverages.42

1.2. Residual Mouth Alcohol (RMA)

As discussed earlier, alcohol only affects the body once it is transported to the brain by the blood. The PBT and its method assume that the breath sample and source of ethanol comes only from the deep lung or alveolar air.43 A second assumption is that there is no residual mouth alcohol (RMA). As such, we citizens interested in science must be concerned with the validity of these assumptions when testing breath samples. For there to be any measure of the true value, these key assumptions are required to be accurate.44

With the above in mind, it is well known that after drinking an alcoholic beverage, the body retains alcohol in the mucosal lining of the mouth for some time.45 When breath makes contact with mouth alcohol, then the alcohol reading will be falsely ele­vated,46 fantastically so at times. Sources of mouth alcohol include recent ingestion of an alcoholic drink, regurgitation of stomach contents, eructation of stomach gases, Gastroesophageal Reflux (GER), Gastroesophageal Reflux Disease (GERD), Laryngoesophageal Reflux (LER), Laryngopharyngeal Reflux (LPR), and use of breath freshening items.47

PBTs are not designed with RMA safeguards. They do not contain slope detectors48 that would help in detecting RMA.49Most importantly, when RMA is present, it only works one way: against the defendant, creating a falsely high ethanol content reading.50 Therefore, without these protections, PBTs have no way of distinguishing alveolar air from an inaccurate false high reading caused by any other source. One study found that it might take up to 19 minutes for RMA dissipation.51 The same study cited another source that stood for the possibility of effects lasting for up to one hour after consumption.52

This is why deprivation/observation periods are mandated in full Evidentiary Breath Testing (EBT) schemes like the Intoxilyzer 5000 EN. Yet, at roadside, there is no such requirement. Therefore, it is best practice that a suitable deprivation/observation period be conducted at roadside to ensure the subject’s sample is only deep lung air.53 Further, it would be best practice for the officer to conduct a replicate analysis after another deprivation period to further give confidence to a PBT estimate.54

1.3. Other Factors

Carry Over: Carry over is a potential problem where a portion of a previous breath specimen remains in the PBT and is added to a subsequent estimate. As the National Highway Traffic Safety Administration has cautioned, if the air temperature is low enough, it is possible for carry over to occur in that one person’s sample remains in the PBT and carries over to the next person’s test.55 It is not difficult to see the problems this could cause when the PBT is being used on many drivers, one after another. An example of where this could be a problem is in a roadblock situation where multiple drivers are being tested or in an underage drinking event.

Radio Frequency Interference: PBTs do not have detectors to guard against interference caused by radio frequencies (RFI).56 Here, it is important to note that in Texas, EBT devices, like the Intoxilyzer 5000 EN, are required to have RFI detectors by the Texas Department of Public Safety Breath Alcohol Testing program. Absent an RFI detector, an officer will not know when RFI interference occurs because electric fields are not detectable by the five human senses.57 One manufacturer even cautions officers to avoid “environments with high levels of radio interference or magnetic fields.”58For the patrol officer, there are plenty of sources of RFI—e.g., hand-held and vehicle mounted radio transmitters, cell phones, CB radios, light bars, in-car video, computer terminals with internet link inside the patrol vehicle, and police radar.59

Independent Sources of Variation: These include the traditional metrological concerns of calibration and bias of the device itself, and variations in taking of the breath sample: temperature fluctuations, physiological differences of individuals, and phase of ethanol metabolism to name a few.60 Most police agencies do not perform routine or preventive calibration or verification checks for these PBTs during the entire period of their deployment in the field. If the police agencies do perform calibration or verification checks, the efforts are typically not validated or well designed.

Ohio Law On Portable Breath Testing

Ohio’s Fourth District Court of Appeals slam the use of portable breath test devices as trial evidence in State v. Shuler, 168 Ohio App.3d 183, 2006-Ohio-4336.  The unique facts of this case were that the defendant was stopped on November 6, 2004 for making an erratic, improper turn.  He was “asked” to leave the vehicle for submission to field sobriety tests.  In addition, the officer administed a portable breath test to the defendant.  The PBT result was .078 (below the legal limit).  The defendant was arrested and taken to the station where the results of the BAC test were .126.

Shuler argued for admission of the PBT test as evidence.  The trial court denied the PBT’s admission saying that the PBT devise and technology are not sufficiently reliable to be used as evidence.  This should be viewed as perverse since the very same technology is often used by the courts as a basis for probable cause.  See State v. Coates, Athens App. No. 01CA21, 2002-Ohio-2160, 2002 WL 851765 and State v. Gunther, Pickaway App. No. 04CA25, 2005-Ohio-3492, 2005 WL 1594836.

The court stated, “PBT devices are not among those instruments listed in Ohio Adm. Code 3701-53-02 as approved evidential breath-testing instruments for determining the concentration of alcohol in the breath of individuals potentially in violation of R.C. 4511.19. PBT results are considered inherently unreliable because they may register an inaccurate percentage of alcohol present in the breath, and may also be inaccurate as to the presence or absence of any alcohol at all. See State v. Zell (Iowa App. 1992), 491 N.W.2d 196, 197.  PBT devices are designed to measure the amount of certain chemicals in the subject’s breath.  The chemicals measured are found in consumable alcohol, but are also present in industrial chemicals and certain nonintoxicating over-the-counter medications.  They may also, appear when the subject suffers from illnesses such as diabetes, acid reflux disease, or certain cancers. Even gasoline containing ethyl alcohol on a drivers clothes or hands may alter the result.  Such factors can cause PBTs to register inaccurate readings such as false positives. See Tebo, New Test for DUI Defense: Advances in Technology and Stricter Laws Create Challenges for DUI Lawyers, Jan. 28, 2005, www.duicentral.com/aba_journal/.  This lack of evidential reliability provides a basis for excluding PBT results from admissibility at trial.  See Elyria v. Hebebrand (1993), 85 Ohio App.3d 141, 619 N.E.2d 445; State v. Kerns (1998), Van Wert App. No. 15-97-8, 1998 WL 142384.

Wow, but they are still good for probable cause determinations?!?  That is like saying that we won’t allow the use of a psychic in court because it is hooey, but we will allow the officer to use a psychic in determining probable cause to place you under arrest and forever change your life.  If you find yourself facing a DUI/OVI charge please contact someone who is familiar with the fuel cell technology and its unreliability as an indicator of alcohol impairment.  DUI attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in Fairborn, Dayton, SpringfieldKetteringVandaliaXeniaMiamisburgHuber HeightsBeavercreekCentervilleSpringboro, Franklin and throughout Ohio.  He has the credentials and the experience to win your case and has made himself the Miami Valley’s choice for DUI defense.  Contact Charles Rowland by phone at 937-318-1DUI (937-318-1384), 937-879-9542, or toll-free at 1-888-ROWLAND (888-769-5263).  For after-hours help contact our 24/7 DUI HOTLINE at 937-776-2671.  For information about Dayton DUI sent directly to your mobile device, text DaytonDUI (one word) to 50500.  Follow DaytonDUI on Twitter @DaytonDUI or Get Twitterupdates via SMS by texting DaytonDUI to 40404. DaytonDUI is also available on Facebook,www.facebook.com/daytondui and on the DaytonDUI channel on YouTube.  You can also email Charles Rowland at: CharlesRowland@DaytonDUI.com or write to us at 2190 Gateway Dr., Fairborn, Ohio 45324.

 

Warren County Ohio Courts (An Overview)

Warren County Courts Building IMG_4628

Several courts serve Warren County, Ohio.  Frequently, we encounter questions about where a Warren County DUI case will be heard.  Here is an overview of all of the Warren County, Ohio courts complete with links and other important information.

  • Warren County Common Pleas Court (hearing all felony offenses in Warren County) located at 500 Justice Drive, Lebanon, Ohio 45036.  The Court operates Monday through Friday, 8:00 a.m. to 4:30 p.m. and can be reached at the following telephone numbers (513) 695-1346 [Lebanon number], (513) 261-1346 [Middletown/Franklin number], (513) 925-1346 [Cincinnati number] and (937) 425-1346 [Dayton number].  The Juvenile and Common Pleas Courts are  served by the Warren County Clerk of Courts
  • Warren County Juvenile Court (hearing all cases brought against persons deemed to be juveniles under Ohio law)  located at 570 Justice Drive, Lebanon, Ohio 45036. You can contact the Court at (513) 695-1160 and the Juvenile Detention Facility at (513) 695-1392.  The Juvenile and Common Pleas Courts are  served by the Warren County Clerk of Courts
  • Located at 550 Justice Drive, Lebanon, Ohio 45036, the Warren County Court has jurisdiction over misdemeanor offenses (including misdemeanor DUI’s) arising in the following villages: Harveysburg, Maineville, Morrow, South Lebanon, Springboro and Waynesville, along with the following townships: Clearcreek, Hamilton, Harlan, Massie, Salem, Union, Washington and Wayne.  Note, however, that the city of Springboro operates the Springboro Mayor’s Court which is discussed below.  The Warren County Court is open Monday through Friday, 8:00 a.m. to 4:30 p.m. excluding holidays and can be reached at (513) 695-1370.  Your Warren County Court DUI will be heard by the Honorable Donald E. Oda II or the Honorable Joseph W. Kirby.
  • The Lebanon Municipal Court handles cases arising in Lebanon or Turtlecreek Township.   The Lebanon Municipal Court is located at 50 South Broadway in downtown Lebanon across the street from the Golden Lamb restaurant.  The Court is presided over by Judge Mark R. Brogen.  To reach the court, please call (513) 933-7210 between the hours of 8:00 a.m. and 4:00 p.m.  To look up cases in the Lebanon Municipal Court please go HERE and to access daily docket information please visit HERE.
  • The Franklin Municipal Court serves the communities of Franklin and Carlisle.  The Court is located in downtown Franklin at One Benjamin Franklin Way, at the corner of Riley and Fourth Street.  Contact the Court at (937) 746-2858.  Since 2006, the presiding Judge of the Franklin Municipal Court is the Honorable Rupert E. Ruppert.  The hours of the court are as follows: Monday (8:30 a.m. until 5:00 p.m.), Tuesday (8:30 a.m. until 7:00 p.m.), Wednesday (8:30 a.m. until Noon), Thursday and Friday (8:30 a.m. until 5:00 p.m.).
  • If you were cited or the incident happened in the city of Mason or Deerfield Township, your case will be in Mason Municipal Court.  You will appear before Judge D. Andrew Batsche at 5950 Mason-Montgomery Road, Mason, Ohio 45040.  You can reach the court at (513) 398-7901.  The Court operates between the hours of 7:30 a.m. and  4:00 p.m., Monday through Friday.  The Court allow On-Line Payments and access to Public Records/Case Look-Up.
  • Located primarily in Butler County, the jurisdiction of the Middletown Municipal Court does extend into Warren County.   If you are arrested for DUI in Middletown, Trenton, Madison Township or Lemon Township your misdemeanor DUI case will be heard in the Middletown Municipal Court.  The court is located at One Donham Plaza in downtown Middletown and can be reached by telephone at (513) 425-7766.  The court is presided over by the Honorable Mark W. Wall.
  • If you have a case in the Springboro Mayor’s Court you can find assistance by calling (937) 748-4367.  The Sprinboro Mayor’s Court is located at 329 West Central Avenue, Springboro, Ohio 45066.  The Magistrate who will hear your case is the Honorable Jeffrey T. Kirby.  The Clerk of Court is Linda Volpe and she can be reached at (937) 748-9782, Monday through Friday, 8:00 A.M. – 4:30 P.M.  Any other information that you need can be found on the Springboro government website [HERE] and by accessing their convenient A to Z directory.

If you have questions regarding the information provided above, please contact Charles M. Rowland II by phone at 937-318-1DUI (937-318-1384), 937-879-9542, or toll-free at 1-888-ROWLAND (1-888-769-5263).For after-hours help contact our 24/7 DUI HOTLINE at 937-776-2671.  Immediate help is available by filling out the CONTACT form on any of these pages. 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 Twitterupdates 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@DaytonDUI.com or write to us at 2190 Gateway Dr., Fairborn, Ohio 45324