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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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DUI Case Law Update: State v. Houck

March 30th, 2012

In State v. Houck, 2011-Ohio-6359, the Fifth District Court of Appeals upheld a decision of the lower court on defendant’s Motion to Suppress.  The issue involved an arrest for OVI which was made after an officer alleged the defendant was weaving within his lanes and crossing the center line ONCE.  Just one problem.  When the video was viewed at the motion to suppress hearing, no weaving and no crossing of the center line was observed.  ”In this case, the video tape introduced at trial affirmatively demonstrates Appellee’s vehicle did not appear to swerve back and forth and does not appear to drive left of center.” Id. at 12.

Based on the video evidence, the trial court granted the motion.  The State appealed to the Fifth District Court of Appeals.  The Court, however, held, “When reviewing the traffic stop in the case sub judice under the totality of the circumstances, we agree with the trial court the officer did not have a reasonable, articulable suspicion upon which to base the initial stop of Appellee.” Id. at 17.  The Court relied on several cases to stand for the principle that, “In Ohio, when a driver commits only a de minimis marked-lanes violation, there must be some other evidence to suggest impairment before an officer is justified in stopping the vehicle. See State v. Gullett (1992), 78 Ohio App.3d 138, 145, 604 N.E.2d 176, 180–181. In Gullett, the Fourth District Court of Appeals concluded that the mere crossing of an edge line on two occasions did not constitutionally justify the stop. Similarly, this court has held that where there is no evidence of erratic driving, ‘other than what can be considered as insubstantial drifts across the lines,’ there is not sufficient evidence to justify an investigative stop. State v. Drogi (1994), 96 Ohio App.3d 466, 469, 645 N.E.2d 153, 155.”

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.

 

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MADD Fights For DADDS Technology Study In Senate Transportation Bill

March 28th, 2012

In a great article in Politico, Kathryn Wolfe describes the fight brewing between MADD and the opponents of their latest prohibition technology – DADDS.  MADD has been working with major insurance companies and automobile manufacturers to get a passive alcohol system (called DADDS) as mandated equipment in every automobile in the world.  In 2008, at MADD’s urging, the Automotive Coalition for Traffic Safety entered into a $10 million agreement with the federal government to develop such a technology. This system would  search every driver (not just convicted DUI offenders) every single time they started their car.  This year, MADD’s power as one of the nation’s leading lobbying groups resulted in a provision in the Senate transportation bill to ““more widespread deployment of in-vehicle technology” that would prevent drunken driving.  The research will be carried out by the Driver Alcohol Detection System for Safety, a collaboration between NHTSA and the automobile industry.

The article quotes Sarah Longwell, a spokesman for the American Beverage Institute, “They’re developing it for all cars as original equipment. The bill doesn’t mandate anything, but ultimately that’s what they want,” Longwell said.  Politicians who sponsor the bill are sidestepping MADD’s ultimate goal of mandates.  Rep. John Sarbanes (D-Md.), one of the authors of standalone legislation similar to the research provision in the Senate’s bill, dismissed the idea that the provision mandates anything at all.  “I think some of the opponents of this are trying to suggest that merely by doing the research, you’re then going to automatically move into a mandated sort of standardized situation and that’s not the case,” Sarbanes said. “The research would be the basis for determining what next steps you should take and how you balance competing concerns. There’s exactly no downside to doing this research when you look at the potential lives it could save.”

Another MADD agenda item in the Senate bill is the requirement that all first-time DUI offenders must use an ignition interlock device in order to get the car to start.  MADD is seeking to implement this mandate in the same way it coerced the states’ into adoption of a .08 alcohol standard, which is to tie the ignition interlock to receiving highway funds.  The language stipulates that if states want about 5 percent of their regularly allocated safety money, they must enact a law that requires first-time DUI offenders to install an ignition interlock device if they want to continue driving.  By seeking implementation in this way, MADD can avoid fights in more driver-friendly state legislatures.  Given the long history of pandering to MADD, this commentator is not hopeful of a pro-driver outcome.

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.

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The Partition Ratio Defense; Do We Share a Lung?

March 21st, 2012
Lungs-simple diagram of lungs and trachea

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,” 1 DWI 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).  Another study suggests that the mean ratio is 2280:1 for healthy males with an assumed “normal” body temperatures, implying that the ratio is different for women, unhealthy persons, and persons with a variance in body temperature.Dubowski and O’Neill, “The Blood Breath Ratio of Ethanol,” 25 Clinical Chemistry 1144 (1979).  For more on using the partition ratio and body temperature as a defense see this blog at BREATHALYZERS AND THE BODY TEMPERATURE DEFENSE.

Dayton DUI Attorney Charles M. Rowland II dedicates himself to the defense of the accused drunk driver.  He has attended the latest forensic science seminar of the National College for DUI Defense and is the only Ohio OVI attorney to have earned certification in Forensic Sobriety Assessment.  If you need an aggressive Ohio DUI attorney, contact Charles M. Rowland II today HERE, or at 937-318-1DUI (318-1384) or visit www.DaytonDUI.com.

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