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Admissibility of the Standardized Field Sobriety Tests – Statutory Rules

April 18th, 2012
JACKSONVILLE, Fla. (March 17, 2009) Lt. j.g. J...

Ohio Revised Code 4511.19(D)(4)(b) sets forth the law on admissibility of the standardized field sobriety tests in Ohio.  It reads, in pertinent part:

(b) In any criminal prosecution or juvenile court proceeding for a violation of division (A) or (B) of this section, of a municipal ordinance relating to operating a vehicle while under the influence of alcohol, a drug of abuse, or alcohol and a drug of abuse, or of a municipal ordinance relating to operating a vehicle with a prohibited concentration of alcohol, a controlled substance, or a metabolite of a controlled substance in the whole blood, blood serum or plasma, breath, or urine, if a law enforcement officer has administered a field sobriety test to the operator of the vehicle involved in the violation and if it is shown by clear and convincing evidence that the officer administered the test in substantial compliance with the testing standards for any reliable, credible, and generally accepted field sobriety tests that were in effect at the time the tests were administered, including, but not limited to, any testing standards then in effect that were set by the national highway traffic safety administration, all of the following apply:

(i) The officer may testify concerning the results of the field sobriety test so administered.

(ii) The prosecution may introduce the results of the field sobriety test so administered as evidence in any proceedings in the criminal prosecution or juvenile court proceeding.

(iii) If testimony is presented or evidence is introduced under division (D)(4)(b)(i) or (ii) of this section and if the testimony or evidence is admissible under the Rules of Evidence, the court shall admit the testimony or evidence and the trier of fact shall give it whatever weight the trier of fact considers to be appropriate.

Thus, the State must establish by (1) clear and convincing evidence (2) that the officer administered the test in substantial compliance (3) with the testing standards for any reliable, credible, and generally accepted tests (4) in effect at the time the tests were administered (5) including, but not limited to, the standards set by the National Highway Traffic Safety Administration.  Since the adoption of this standard and its acceptance by the Ohio Supreme Court, DUI attorneys have been fighting to define the parameters of what it means to be in substantial compliance with the standards.  See State v. Boczar, 113 Ohio St. 3d 148, 2007-Ohio-1251, 863 N.E.2d 155 (2007), upholding the constitutionality of R.C. 4511.19(D)(4)(b).  Such determinations are made on a case-by-case basis. State v. Robinson, 160 Ohio App.3d 802, 2005-Ohio-2280, 828 N.E.2d 1050 (Ohio App. 5th District Fairfield County 2005), appeal not allowed, 106 Ohio St. 3d 1544, 2005-Ohio-5343, 835 N.E.2d 726, abrogated on other grounds by State v. Boczar Id.; see also Brookpark v. Key, 2008-Ohio-1811 (Ohio Ct. App. 8th Dist. Cuyahoga Cty 2008).

DUI attorney Charles M. Rowland II dedicates his practice to defending those accused of DUI 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 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.  Charles M. Rowland II is working hard to be your trusted source for DUI information in the Miami Valley. “All I do is DUI Defense.”

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“Hiding the Ball” in Ohio DUI Cases

April 16th, 2012

ODH and the Disappearing Intoxilyzer 8000 Records

The Ohio Statehouse in Columbus where the Ohio...

One of the proposed benefits of the adoption of the Intoxilyzer 8000 was to be the consolidation of breath test records in one place.  Previously, breath test records were maintained by the individual police departments.  Implementation and maintenance of the Intoxilyzer 8000 is the responsibility of the Ohio Department of Health and specifically the ODH’s Bureau of Alcohol and Drug Testing.  The Ohio Department of Health has started a web site containing all information about breath tests in the state, called the Breath Instrument Data Center. [HERE]  Records were to be available on-line and subject to review as public records making the entire process of reviewing a case easier.

Problems and allegations of wrongdoing surfaced almost immediately.  When the new machines gave some impossible results (10.00 and 23.00), the records disappeared.  Why?  If defense attorneys could point to outrageous results, the entirety of the breath testing scheme could be brought into question.  No adequate reason for the disappearance of these records has yet been given.  Later the ODH changed what records were accessible to the public. Why?  The Intoxilzyer 8000 was recording an unusually high number of “sample attempts” on tests.  Some of the tests said that over 20 “sample attempts” were made for one subject test.  This anomaly could be used by defense attorneys to show problems with the machine.  Instead of investigating the problem, the ODH decided to hide the report.  Similar problems were presented when ODH called the subject samples “tests.”  Why is this a problem?  If it is a “subject test” then the tests are out of bounds according to the rules written by the Ohio Department of Health.  Again, ODH took the most expedient route by changing the words “subject test” to “subject sample.”

The activity of the Ohio Department of Health, suspect from the beginning of this process, has descended to farce.  People, citizens of our great country, are being convicted of crimes that contain harsh mandatory penalties while the Department of Health arbitrarily changes the rules.  While ODH has not cited a legal basis upon which to premise these capricious changes, Ohio law does speak to the issue.  According to Ohio law records of breath tests “shall be retained for not less than three years.”  Deletion of these records, if they have been deleted forever, may also be a violation of O.R.C. 2921.12 (Tampering With Evidence) which says that no person shall “alter, destroy, conceal or remove any record or document, or thing with purpose to impair its value or availability as evidence in such a proceeding or investigation.”  Would any prosecutor fail to prosecute a criminal defense attorney who purposely deleted evidence of an OVI offense?  Enterprising defense attorneys may also have issues under the Brady discovery rules and Ohio Criminal Rule 16 discovery.  Such activity may also give rise to the affirmative defense of “outrageous governmental conduct.”  These problems will surely find themselves thrown into the laps of judges who must find a way to protect our Constitution from this bungle.  How this is sorted out may well turn into one of the most important judicial issues of our time.

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 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.  Charles M. Rowland II is working hard to be your trusted source for DUI information in the Miami Valley. “All I do is DUI Defense.”

 

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Download the DaytonDUI Android App

April 9th, 2012

After much hard work (harder than I expected) we are proud to announce the launch of the DaytonDUI Android App.  The app is our latest attempt to bring you information on Ohio’s tough drunk driving laws and make it easier for our clients to avoid a drunk driving situation.  The app helps you know your rights and know yourself by providing a drink tally so that you do not overindulge.  You can send safe drinking tips to friends or use the app to find the nearest taxi for a safe trip home.  The app brings you the best of DaytonDUI’s video and audio content and gives you a chance to take pictures and record memories so that you can aid in your own defense.  Our sincere desire is to make our roads a safer place.  This app is the result of the hard work of Mary Johnson at WebSite Helper who has worked tirelessly to make my vague ambitions a reality.

The app is our latest attempt to stay on the cutting edge of DUI defense and provide our clients with exceptional service.  If you like the app, take time to sign up for our free text alert service which provides timely information on OVI checkpoints and law enforcement activities in and around the Miami Valley.  You can also join us on Facebook and Twitter.  Like video?  Try the DaytonDUI channel on YouTube.  You can reach us 24/7 on the DaytonDUI Hotline at (937) 776-2671.  Of course, I am partial to the Dayton DUI blog which has been my flagship service since 2005.  At DaytonDUI, we work very hard to bring you the best service that a DUI attorney can provide.  Please consider our service if you, or someone you love, is accused of drunk driving.

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Ohio OVI Breath Testing – Bigger Is Better?

April 5th, 2012

The Intoxilyzer 8000 breath testing machine adopted by Ohio in all 88 counties differs significantly from the Intoxilyzer 5000 machine that has been used for years.   Both machines operate using INFRARED ABSORPTION to analyze breath samples.  The sample (deep lung aveolar air) is blown into the sample chamber and then excited by an infrared light source.  The decrease in intensity of the IR light due to absorption by alcohol in the breath sample is proportional to the alcohol in the breath. The Intoxilyzer 8000 has a significantly smaller sample chamber (29.4 cc’s vs. 84 cc’s in the 5000) and a shorter light path length.  This is important because the farther the energy travels through the breath sample, the more time the energy has to react to the sample.  The longer the light path, the more sensitive the machine. (Source DataMaster  Supervisor  Guide, p. 2).

Unlike the BAC DataMaster and it’s predecessor the Intoxilyzer 5000, the Intoxilyzer 8000 does not employ a spinning mechanism that filters to test specific frequencies for infrared light absorption.  To overcome the filter wheels, the Intoxilyzer 8000 uses a pulsed light.  The mechanical result is that the Intoxilyzer 8000 has to employ a much slower processor which dramatically reduces the number of samples the machine can make per second.  In comparison, the BAC DataMaster runs at 525 megahertz which means that it tests 125 samples per second whereas the Intoxilyzer 8000 tests 4 samples per second.  The slower operating speed  makes the Intoxilyzer 8000 less able to reliably detect mouth alcohol and flag invalid samples compared to the Intoxilyzer 5000 and the BAC DataMaster. The result is that the machine is less able to detect mouth alcohol which results in the acceptance of some samples that would otherwise be rejected.  This is not the opinion of a defense attorney, this is the opinion of the Alaska Department of Highway Safety, which after testing, has not approved the Intoxilyzer 8000 for use in Alaska.  A similar result was reached in Minnesota which also refused to approve the Intoxilyzer 8000.

Charles M. Rowland II dedicates his practice to defending the accused drunk driver.  “All I do is DUI defense,” says Rowland.  Credentials?  Charles Rowland was one of the first private attorneys in the nation to be certified on the Intoxilyzer 8000.  National Patent Analytical Systems has certified Charles Rowland in the operation, diagnostic verification and calibration of the BAC DataMaster Breath Alcohol Testing Instrument, the most commonly used breath testing instrument in Ohio for DUI arrests. Rowland has been a DUI prosecutor and has been a special prosecutor in DUI cases.  He has been qualified as an expert witness on evidential breath testing by the United States government and has testified in court martial proceedings.  When the police academy needed a DUI defense attorney for its mock trial class they called Charles Rowland.   He was the first attorney in the United States to earn a Forensic Sobriety Assessment Certificate (FSA) and is Ohio’s only FSA certified attorney.  Charles M. Rowland II attended the NHTSA Field Sobriety Testing training (the same training as law enforcement) wherein he was certified to administer and evaluate the standardized field sobriety tests.  Charles attended the 19th annual Mastering Science in a DUI in New Orleans and stays on the cutting edge of forensic defenses.

Charles M. Rowland II has distinguished himself amongst his peers.  He is past-President of theGreene County Bar Association and a member of the Ohio State, Dayton and Clark County Bar Associations.  He is the winner of the 2004 OSBF Community Service Award for Attorneys under 40 and was a Fellow to the Ohio State Bar Foundation in 2005.  He has co-edited Anderson’s Ohio Civil Practice, has been an adjunct professor for the Wright State University Honors Department and was co-recipient of the 2006 Beavercreek Chamber of Commerce’s Public Education Award.   He has served on the St. Luke Parish Council, the Beavercreek School Board and as President of TCN-BHS, Greene County’s alcohol and drug treatment provider.  If you find yourself accused of a drunken driving offense, you should contact Charles M. Rowland II at (937) 318-1384 [318-1DUI], 1-888-769-5263 [888-ROWLAND] or by texting DaytonDUI (one word) to 50500.  You can also get great information about Ohio’s tough drunk driving laws atwww.DaytonDUI.com or on the Ohio DUI/OVI Blog at www.DaytonDUI.com/blog.  Charles Rowland says, “All I do is DUI defense.”

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Ohio DUI Law: Is Duress An Affirmative Defense To An OVI?

April 2nd, 2012

Duress was asserted as an affirmative defense in Cleveland v. Chambers, 1984 WL 5006 (Ohio Ct. App. 8th Dist. Cuyahoga County 1984).  In that case, the accused was robbed in a parking lot and told to “get out of here” by the perpetrator who took the extra step of following him in a separate car.  The police found the defendant when he subsequently crashed his car.  The defendant was charged with OVI.  Even under these extreme circumstances, the court found the defendant’s apprehensions “did not create a circumstance where [he] had no control over his actions nor where he was absolutely under a superior power whose will he had to obey.” Id.  The court cited the reasoning of State v. Good, 110 Ohio App.415, 419, 11 Ohio Op. 2d 459, 83 Ohio L. Abs. 65, 165 N. E.2d 28 (10th Dist. Franklin County 1960).

The force which an accused claims compelled criminal conduct on his part against his will must be immediate and continuous and threaten grave danger to the actor’s person during all the time the act is being committed… and from which he cannot safely withdraw.

This decision is consistent with the position asserted in State v. Grimsley, 3 Ohio App.3d 265, 444 N.E.2d 1071, 27 A.L.R. 4th 1060 (1st Dist. Hamilton County 1982), which holds that Ohio’s OVI statute, O.R.C. 4511.19 makes driving under the influence a strict liability offense.  This should be read in conjunction with O.R.C. 2901.21 which requires a voluntary act before guilt can be imposed.  It reads,

2901.21 Criminal liability, culpability.

(A) Except as provided in division (B) of this section, a person is not guilty of an offense unless both of the following apply:

(1) The person’s liability is based on conduct that includes either a voluntary act, or an omission to perform an act or duty that the person is capable of performing;

(2) The person has the requisite degree of culpability for each element as to which a culpable mental state is specified by the section defining the offense.

(B) When the section defining an offense does not specify any degree of culpability, and plainly indicates a purpose to impose strict criminal liability for the conduct described in the section, then culpability is not required for a person to be guilty of the offense. When the section neither specifies culpability nor plainly indicates a purpose to impose strict liability, recklessness is sufficient culpability to commit the offense.

(C) Voluntary intoxication may not be taken into consideration in determining the existence of a mental state that is an element of a criminal offense. Voluntary intoxication does not relieve a person of a duty to act if failure to act constitutes a criminal offense. Evidence that a person was voluntarily intoxicated may be admissible to show whether or not the person was physically capable of performing the act with which the person is charged.

(D) As used in this section:

(1) Possession is a voluntary act if the possessor knowingly procured or received the thing possessed, or was aware of the possessor’s control of the thing possessed for a sufficient time to have ended possession.

(2) Reflexes, convulsions, body movements during unconsciousness or sleep, and body movements that are not otherwise a product of the actor’s volition, are involuntary acts.

(3) “Culpability” means purpose, knowledge, recklessness, or negligence, as defined in section 2901.22 of the Revised Code.

(4) “Intoxication” includes, but is not limited to, intoxication resulting from the ingestion of alcohol, a drug, or alcohol and a drug.

Thus, when a person asserted that they suffered from a personality disorder and that at the time of driving she was disassociated into another personality, the court ruled that the defendant was not acting involuntarily or unconsciously in that the person driving the car (whichever personality that was) was conscious and acting of her own volition. Grimsley, Id.  Similarly in State v. Herschner, 2000 WL 781094 (Ohio Ct. App. 4th Dist. Athens County 2000) the defendant asserted that he operated under the effect of a post-hyponotic suggestion.  The Court did not buy it, finding that the defendant acted under his own volition.  Ohio courts have also disallowed an insanity defense in a DUI case relying on the strict liability nature of the offense and Traffic Rule 10(A) which limits pleas to guilty, not guilty and no contest. State v. Ungerer, 87 Ohio App.3d 110, 621 N.E.2d 893 (9th Dist. Medina County, 1993).  The bottom line is that any defense asserting affirmatively that the accused was not acting in a volitional manner will be difficult to assert.
DUI attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver inFairborn, 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.
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