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Are the Standardized Field Sobriety Tests Fair to Fatter People?

February 1st, 2012
Police in Connecticut administer the one leg s...

Being overweight can impact your performance on the standardized field sobriety tests.  The government agency tasked with verifying the validity of the standardized field sobriety tests is the National Highway Traffic Safety Administration (hereinafter NHTSA).  NHTSA concedes that being fifty or more pounds overweight affects performance on the one-leg stand test; a test requiring the suspect to raise a foot off the ground and stand on one foot for 30 seconds. See NHTSA, DWI Detection and Standardized Field Sobriety Testing, Participant’s Manual (2006), re: WAT at VIII-11, re: OLS at VIII-13. Id. re: 50 lbs at VIII-13.  In older versions and in the early validation studies, the same overweight warnings were applied to the walk and turn test. Given that 64.5 percent of Americans are overweight and 30.5 percent are obese, we see that a vast number of Americans may be bad subject for at least two of the three standardized field sobriety tests.  See Dixie L. Thompson, Jennifer Rakow, Sara M. Perdue, Relationship between Accumulated Walking and Body Composition in Middle-Ages Women, OFFICIAL J. OF THE AMERICAN COLLEGE OF SPORTS  MEDICINE, 913 (Jan. 2004).  Science also tells us that age, physical activity and gender can affect the performance on the standardized field sobriety tests.  Charles M. Rowland II has completed the most recent NHTSA training in standardized field sobriety tests and can help you aggressively fight your Ohio DUI 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, Springboro, Centerville and throughout Ohio.  He has the credentials and the experience to win your case and has made himself the Miami Valley’s choice for DUI defense.  Contact Charles Rowland by phone at 937-318-1DUI (937-318-1384), 937-879-9542, or toll-free at 1-888-ROWLAND (888-769-5263).  For after-hours help contact our 24/7 DUI HOTLINE at 937-776-2671.  For information about Dayton DUI sent directly to your mobile device, text DaytonDUI (one word) to 50500.  Follow DaytonDUI on Twitter @DaytonDUI or Get Twitter updates via SMS by texting DaytonDUI to 40404. DaytonDUI is also available on Facebook,  and on the DaytonDUI channel on YouTube.  You can also email Charles Rowland at: CharlesRowland@DaytonDUI.com or write to us at 2190 Gateway Dr., Fairborn, Ohio 45324.

 

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Intoxilyzer 8000 Is Unreliable!

January 27th, 2012

Today, in State v. Heather Reid, Case No. TRC 1100716 in the Circleville Municipal Court, Judge Gary Dumm has ruled that “The State of Ohio cannot expect this Court to find the Intoxilyzer 8000 reliable when the State refuses to address known problems and explain why those problems can be ignored.”

The Court calls for independent laboratory testing to address the issues raised by the adoption of the Intoxilyzer 8000: RFI, sample size of the chamber, volume of the sample tested, possible operator manipulation of the results, possible CMI modifications of the software without the knowledge of ODH and slope detector inadequacy.  Judge Dumm wrote, “If this testing is not done independently of CMI and ODH, all municipal courts in Ohio will be dealing with these challenges for years to come.” The Court also states, “At a time when scientific testing can readily determine the accuracy and validity of many tools and processes, it would seem that both CMI and ODH should be happy to run independent testing with known and respectable laboratories to determine the accuracy and reliability of the equipment.”

The Court does not address the looming question of whether or not ODH or CMI will have to turn over source code data.  However, the Court eviscerated ODH stating that “the less than candid answers to the questions regarding the data base, the ability of CMI to enter and alter the machine without knowledge or documentation, lack of explanation of newer versions software, missing information and unexplained inconsistent results clearly cast doubt on ODH’s transparency as to the Intoxilyzer 8000.”

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

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Posted in Breath Testing, DUI Case Law

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DaytonDUI, Defending a Breath Test Case

January 26th, 2012
Big Bad Wolf

“I’ll Huff and I’ll Puff and Blow Your House Down”

Did you know that your breathing pattern can significantly alter the concentration of alcohol on your evidential breath test?  According to scientific research, “[t]he subject’s test manner of breathing just prior to providing breath for analysis can significantly alter the concentration of alcohol in the resulting exhalation.” (Jones, 1982, Schoknecht, 1989) as cited in Physiological Aspecs of Breath-Alcohol Measurement, Alcohol Drugs & Driving Vol. 6, No. 2, A.W. Jones.

Hyperventilation “…lowers the breath alcohol concentration by as much as 20% compared with a single moderate inhalation and forced exhalation used as control tests.” Id. (Jones, 1982).  Whereas, “holding breath for a short time (20 seconds) before exhalation increases the alcohol concentration in exhaled air by 15%. Id. (Jones, 1982).

With Ohio’s adoption of the Intoxilyzer 8000 breath test machine, attorneys should be on the look out for these types of breathing pattern defenses.  Tell your Ohio DUI lawyer if you were asked to hold your breath, blow in an unusual pattern or if the officer abruptly told you to stop blowing.  Your attorney needs to know how you blew because an operator may be looking to manipulate your breath pattern to force agreement of a first blow and  a second blow.

Charles M. Rowland II, DaytonDUI, is certified on the Intoxilyzer 8000 and has attended training on the machine wherein defenses like the breathing pattern defense and the long-blow breath test defense are explained in scientific detail.  He has been a city prosecutor and is Ohio’s only Forensic Sobriety Assessment certified attorney.  If you need to fight your DUI, contact attorney Charles M. Rowland II at 937-318-1DUI or 888-ROWLAND. “All I do is DUI Defense.”

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Forensic Blood Tests: Whole Blood vs. Serum/Plasma

January 10th, 2012

English: Bags of blood collected during donati...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.  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.

The Ohio rules for collection of blood specimens are set forth at Ohio Administrative Code 3701-53-05.  In State v. Meyers, 146 Ohio App.3d 563, 2001-Ohio-2282 (3d Dist. Allen County 2001), the court allowed the state to use a blood tests that were taken for diagnostic and treatment purposes so long as the tests are in compliance with the OAC regulations.  In State v. Gordon, 2002-Ohio-2140 (Ohio Ct. App. 8th Dist Cuyahoga County 2002) the Eight District Court of Appeals upheld the suppression of a blood draw when the State’s toxicologist did not testify regarding the conversion of the serum alcohol content to a whole blood concentration, nor did the toxicologist testify as to any laboratory procedures for testing blood serum content and converting the results to that of whole blood. See Weiler & Weiler, Ohio Driving Under the Influence, pp. 195-201.

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

 

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Posted in Blood & Urine Tests

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Ohio OVI: Standardized Field Sobriety Tests & Marijuana

December 1st, 2011

State v. Dixon, 2007-Ohio-5189 (Ohio Ct. App. 12th Dist. Clermont County 2007).

Cannabis is another commonly used recreational...

More and more, we are seeing law enforcement officers arrest drivers on suspicion of operating a vehicle under the influence of marijuana.  Often, an officer will request a urine test for marijuana after a defendant has blown substantially under the per se alcohol limit on a breath test machine.  This raises questions about the proper determination of probable cause.  If, for example, no alcohol was suspected how did the officer arrive deduce enough evidence to make an arrest? Were the standardized field sobriety tests administered to detect alcohol or something else?  Can the standardized field sobriety tests use in Ohio demonstrate impairment by any other drug than alcohol?

Because Ohio does not follow the Drug Recognition Expert (D.R.E.) protocol adopted in other states, the officer is left to rely on his training and experience in investigating a suspected marijuana-impaired driver.  This means that the officer will usually attempt to testify as to the defendant’s performance on the horizontal gaze nystagmus (HGN) test to support the probable cause for an arrest.  But is the HGN a proper test for marijuana?

In State v. Dixon, 2007-Ohio-5189 (Ohio Ct. App. 12th Dist. Clermont County 2007), the court addressed the issue of standardized field sobriety tests and marijuana impairment.  Relying upon the NHTSA standards, the court concluded that observations as to performance on the walk & turn test and the one-leg stand test were indicative of impairment, thus allowing those to be used against a suspected marijuana user.  The HGN test, however, is not indicative of marijuana impairment.  According to NHTSA nystagmus would not be present due to marijuana and, as such, it was plain error to admit evidence of the HGN against the defendant.

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

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