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

April 22nd, 2013

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

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

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urine, or other bodily substance at the time of the alleged violation as shown by chemical analysis of the substance withdrawn within three hours of the time of the alleged violation.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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

For the last seven years, I have focused exclusively on the complex field of DUI defense.  I have attended the National College for DUI Defense specialization seminar at Harvard University and the Mastering Scientific Evidence in a DUI case.  I have spoken and written about DUI and I am the only attorney in Ohio to hold a Forensic Sobriety Assessment certification.  Don’t you want an attorney who will defend you with the same “by any means necessary” mentality that Ohio has adopted with which to secure your conviction?  I have experience winning blood test cases.  I  dedicate my practice to defending the accused drunk driver in 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 me by phone at 937-318-1DUI (937-318-1384), 937-879-9542, or toll-free at 1-888-ROWLAND (888-769-5263).  For after-hours help contact our 24/7 DUI HOTLINE at 937-776-2671.  For information about Dayton DUI sent directly to your mobile device, text DaytonDUI (one word) to 50500.  Follow DaytonDUI on Twitter @DaytonDUI or Get Twitter updates via SMS by texting DaytonDUI to40404. DaytonDUI is also available on Facebook and on the DaytonDUI channel on YouTube.  You can also email me at: CharlesRowland@DaytonDUI.com or write to us at 2190 Gateway Dr., Fairborn, Ohio 45324. “All I do is DUI”

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Posted in Blood & Urine Tests

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Nonstandardized Field Sobriety Tests

April 12th, 2013

Ohio has adopted the three-test field sobriety protocol as set forth in the National Highway Traffic Safety Administration (NHTSA) manual for training law enforcement officers.  The three tests adopted by NHTSA all survived scientific scrutiny as being indicative of impairment.  The tests are: (1) horizontal gaze nystagmus, a test of the subject’s eyes; (2)  walk & turn; (3) one-leg-stand.  The officer is trained to administer the tests in a standardized fashion and record “clues” of impairment as evidenced by the subject’s performance on the tests.

Often, you will encounter a circumstance where the officer employs an non-standardized field sobriety test.  These tests may include nonscientific “techniques”, some of which are described in the NHTSA manual, and can include a finger dexterity test, an alphabet test, a counting test or some other form of confusing coordination test.  Some jurisdictions still employ a thoroughly discredited test which requires the subject to tilt their head back and touch the tip of his finger to the tip of his nose.

The first step in challenging the officers decision to employ non-standardized tests is to determine why the officer is employing the tests.  Ohio has set forth eleven (11) factors that courts consider in determining whether or not the officer has established reasonable and articulable suspicion of drunk driving sufficient to request that the suspect step from the car.  See State v. Evans, citation omitted.  It is appropriate pursuant to the NHTSA manual to employ the above-described “techniques” at this phase of the officer’s investigation.  Your DUI attorney will know how to use cross examination to establish that there were omissions in the officers investigation, or that the officer lacked the legal standard necessary to ask you to step from the car.

If, however, the officer is using the tests to establish probable cause for an OVI arrest, he or she is on a faulty scientific footing.  Your DUI lawyer will challenge these tests as not probative of intoxication and that they are irrelevant for purposes of determining impairment.  At least one case, Rocky River v. Horvath, 2002 WL 538755 (Ohio Ct. App. 8th Dist. Cuyahoga 2002) has decided that these non-standardized tests are improper because they have no standardized application and they have not been approved by NHTSA. [Note: this opinion was written by now-Supreme Court Justice Terrence O'Donnell].  The Second District Court of Appeals has ruled that non-standardized tests can come in under the totality of the circumstances used to reach a probable cause determination. State v. Rajehel, 2003-Ohio-3975.  The Ohio Supreme Court has ruled that the tests may be used as lay evidence of intoxication. Brooklyn Hts. v. Yee, 2009-Ohio-4552.

If you find yourself needing the assistance of a qualified Ohio DUI lawyer, contact Charles M. Rowland II at (937) 318-1DUI or 1-888-ROWLAND.  Charles Rowland has taken the same NHTSA approved training as law enforcement, is Ohio’s only Forensic Sobriety Assessment certified attorney and has honed his skills as both a defense attorney and a prosecuting attorney.  Please visit www.DaytonDUI.com to find out more.

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Posted in Field Tests (SFSTs), Illegal Police Stops

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Prior Convictions Used To Enhance An OVI

March 20th, 2013

English: Main section of prisoners' call block...

It is not uncommon for a client to choose my representation on a second, third, or fourth OVI offense.  One of the first things we check is whether or not the client was represented by an attorney in the previous convictions.  We also check to see if the prior plea had a valid waiver of counsel.  Both of these issues were addressed by the Ohio Supreme Court in State v. Brooke, 113 Ohio St. 3d 199, 2007-Ohio-1533, 863 N.E. 2d 1024 (2007), wherein the Court stated:

Generally, a past conviction cannot be attacked in a subsequent case.  However, there is a limited right to collaterally attack a conviction when the state proposes to use the past conviction to enhance the penalty of a later criminal offense.  A conviction obtained against the defendant who is without counsel, or its corollary, an uncounseled conviction obtained without a valid waiver of the right to counsel, has been recognized as constitutionally infirm.

The case law following State v. Brooke has led to many cases which result in client’s not having a subsequent OVI enhanced.  This area of law is fact dependent and your attorney should make a thorough review of the law in your court and appellate district when pursuing this line of collateral attack.  The Ohio Supreme Court has set forth precedent that it is the defendant’s responsibility and burden to make a prima facie showing of a defect in the prior plea.  Upon this prima facie showing, the burden shifts to the state to rebut the evidence by showing that the plea did, in fact, contain a valid waiver of counsel.  See State v. Thompson, 2007-Ohio-6098 (Ohio Ct. App. 5th Dist. Fairfield County 2007). 

In 2007, the Ohio Legislature passed 2007 Am. Sub. S.B. 17 which added 2945.75(B)(3).  The purpose of this law was to overrule the law set forth in State v. Brooke which required the defendant to raise a prima facie showing and instead, place on the defendant the burden of proving by a preponderance of the evidence that the prior plea was infirm.  As Judge Weiler points out in Ohio Driving Under The Influence Law, 2011-2012 ed., pp. 402, “It will undoubtedly be challenged in the future as a violation of procedural due process. But, it will be some time before the matter reaches the appellate level and even longer before it is reviewed by the Ohio Supreme Court.”

Dayton DUI attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in Fairborn, 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.

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Posted in DUI Case Law, DUI Penalties, Prior Offenses

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Intoxilyzer 8000 Upheld in Ohio’s 11th and 12th Appellate Courts

February 22nd, 2013

Art-Deco-Ohio-Supreme-Court-In-Total

When you are accused of a DUI/OVI in Ohio, the breath test machine is presumed to be perfect.  What is more, your attorney cannot challenge scientifically provable flaws in the machine or the weakness in the science supporting the machine.  Such challenges are limited by a 1984 Ohio Supreme Court ruling (State v. Vega) holding that once the Ohio Department of Health certifies a machine, it becomes valid and the defendant loses the ability to argue defenses based on the underlying science of the machine.  This author has made it a long-standing goal to fight this case and has done so for over 15 years.

This ruling has been questioned recently due to the adoption of a faulty machine (Intoxilyzer 8000) that has been found unreliable in other states.  However, it appears that the Courts of Appeal hearing these cases are sticking by the Vega decision.  The 11th District Court of Appeals reversed and remanded six Intoxilyzer 8000 cases this week – five in Portage County and one in Lake County.  In each case, the state appealed judgments of the lower court’s decision granting a defendant’s motion to suppress results of the controversial breathalyzer. At issue is whether the state has the burden at a suppression hearing to establish the general scientific reliability of the breath test machine without any specific challenge to the conduct of the subject test.  The following case summary appears HERE.

In State v. Johnson (Case No. 2012-P-008), the appellee was stopped by the Ohio Highway Patrol for speeding.  According to case summary details, the trooper noticed a strong odor of alcohol and did a breath test with the Intoxilyzer. The result of the breath test was a blood-alcohol content of .103.  The trial court granted the motion to suppress after the state did not present any witnesses at a December 2011 hearing, and issued this ruling: “To simply admit the breath test results from the Intoxilyzer 8000, as the State would want the Court to do, without any hearing to determine the general scientific reliability and admissibility of the breath test results from this machine, and then to argue that the defense cannot challenge the test results at trial pursuant to Vega is in this Court’s opinion a violation of the defendant’s due process rights. The position the State of Ohio is taking in this case by not calling any witnesses at the suppression hearing is not fair and just.” (Emphasis added)

The state appealed on one assignment of error, claiming the trial court should not have allowed “a general attack on the scientific reliability of the Intoxilyzer 8000 contrary to Ohio statutes and well-established case law.”  In Vega, the question was “whether an accused may use expert testimony to attack the general reliability of intoxilyzers as valid, reliable breath testing machines in view of the fact that the General Assembly has legislatively provided for the admission of such tests in R.C. 4511.19 if analyzed in accordance with methods approved by the Director of Health. In a 4-3 decision, the Court held, `an accused is not denied his constitutional right to present a defense nor is the state relieved of its burden of proving guilt beyond a reasonable doubt where a trial judge does not permit expert testimony to attack the reliability of intoxilyzers in general.’ ”

According to 11th District Judge Timothy P. Cannon’s 2-1 opinion, Johnson did not present any specific challenge to the Intoxilyzer 8000’s reliability. In addition, Cannon said the Ohio Supreme Court and federal courts have significantly revised their approach regarding admitting scientific testing and testimony since the Vega decision.  “The legislature has allowed the director of the department of health to determine that the Intoxilyzer 8000 is generally reliable,” Cannon stated, adding that the burden is on the defendant to come forward with evidence overcoming that presumption.

11th District Judge Thomas R. Wright dissented, arguing the trial court has discretion regarding admissibility.  “The trial court was aware that other courts had deemed the Intoxilyzer 8000 unreliable even thought it was approved,” according to Wright’s dissenting opinion. “Against the backdrop, the court ordered the state to establish the general reliability of the intoxilyzer 8000 before admitting the results. Given the constitutional gravity of admitting unreliable results, however, and its statutory authority to act as gatekeeper regarding breath test results, the lower court’s decision to require the state to produce evidence of the machine’s reliability was an eminently reasonable and sound legal decision.”

11th District Judge Diane V. Grendell concurred in judgment only, writing a separate opinion that she disagrees a trial court has “exclusive” power to make decisions about evidence.  The other similar decisions are cited: State v. Collazo, No. 2012-L-067, State v. Funk, No. 2012-P-0071, State v. Harmon, No. 2012-P-0067, State v. Hatcher, No. 2012-P-0077 and State v. Schrock, No. 2012-P-0022.

A similar result was reached in Ohio’s 12th District Court of Appeals.  The Twelfth District Court of Appeals has found that breath alcohol content results from a West Chester traffic stop should not have been suppressed by the trial court because the proper procedures in administering the test were followed. Accordingly, the appeals court reversed the decision by the Butler County Area Court III and remanded the case.  The case summary can be found on the Supreme Court News HERE.

Retired Judge William W. Young, sitting by assignment, authored the unanimous decision and discussed the admissibility of Intoxilyzer 8000 test results in light of the Ohio Supreme Court’s 1984 decision inState v. Vega.  “This district and others have universally recognized that Vega prohibits a general attack on the reliability of breath testing instruments,” Judge Young wrote. “Additionally, some appellate courts have interpretedVega and subsequent Ohio Supreme Court cases to prohibit suppression of BAC test results based on any argument regarding the reliability of a breath testing instrument. Instead, the admission of BAC test results turns on substantial compliance with ODH (Ohio Department of Health) regulations.”

Judge Young wrote that the state met its “slight burden” by uploading Intoxilyzer 8000 records to the Ohio Department of Health website and that the state established that it substantially complied with other regulations by performing a “dry gas control” before and after Dugan’s breath test, not each individual blow into the device.  Judges Stephen W. Powell and Robert P. Ringland concurred in the February 11 opinion. Concurring separately, Judge Ringland urged the Supreme Court to revisit the Vega case because “courts have struggled with the interpretation of Vega” and that several “events signal a need for the Ohio Supreme Court to resolve these issues and confusion.”

State v. Dugan, 2013-Ohio-447
Opinion: http://www.sc.ohio.gov/rod/docs/pdf/12/2013/2013-ohio-447.pdf
Criminal Appeal From: Bulter County Area Court III
Judgment Appealed From Is: Reversed and Remanded
Date of Judgment Entry on Appeal: February 11, 2013

So, What Are The Problems With The Breath Test Machine?

The Intoxilyzer 8000, manufactured by CMI (out of Kentucky) has been plagued with software problems in other states.  Software problems that affect the accuracy of Intoxilyzer 8000 breath test results have been acknowledged in lawsuits in both Florida and Arizona.  CMI has taken the stance that it will not release the “guts” of how its machine works and CMI’s refusal to release the source code for review has led to issues in Minnesota and Florida.  Studies conducted in Tennessee deemed the device too inaccurate to be used for the prosecution of DUI offenses in that state.  The Ohio Department of Health claims not to have the source code and does not know the patent number of the Intoxilyzer 8000.  You would think that Ohio would have independently reviewed the source code and thoroughly checked this machine out prior to putting citizens in jeopardy of a false arrest, but that appears not to have been the case.   Obtaining the source code and subjecting it to independent testing would allow disinterested third parties to check the science before innocent people were arrested and jailed.   The people charged with protecting us are failing! 

Additional problems have been caused by stumbles in early judicial tests of the Intoxilzyer 8000.  These testimonial blunders are indicative of a machine which has not been tested and was thrown into courts with an arrogant assumption that the judges and prosecutors will “trust” an unknown entity with an incredible financial incentive.  ODH has been unable to provide information about who made the decision to purchase the machine and who was on the review committee.  Did the people responsible for review recognize problems with the machine?  Did they recommend purchasing the machine?  Will the prosecutors and judges afford this unwarranted trust?  What’s more, the person who forced Ohio to purchase these machines is now working for CMI, the company that manufactures them.  It is very shady that the individual that masterminded the contract with CMI would be permitted to go work for that company approximately 13 months after he left his employment with Ohio.

Judges in Athens and Circleville have found the evidence supporting the machine to be lacking.  As reported HERE in the Columbus Dispatch, “Judge Gary Dumm of Circleville Municipal Court ruled that test results from the Intoxilyzer 8000 will not be admitted in his court until the state can present scientific proof that the machine’s technology is sound.”  This flirts with overturning the 1984 Ohio Supreme Court ruling in State v. Vega that states that breath tests in general cannot be challenged by expert testimony, Dumm said the ruling permitted him to examine whether the Intoxilyzer 8000 was “proper equipment.”  In an article in the Athens News (click HERE), the newspaper outlines the developments in the attacks on the implementation of the Intoxilyzer 8000 breath test machine.  Apparently, the Ohio Department of Health is not providing a rousing defense of the machine.  Quoting from the article, “Toy noted that in both the Athens and Pickaway County cases, ODH official Mary Martin testified on behalf of the agency, but that Dumm’s ruling says her testimony given that she has no scientific background isn’t sufficient basis to validate the Intoxilyzer’s findings as trial evidence.”

The Cover-Up Is Worse Than The Crime

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.

Problems Have Also Appeared In The Implementing Rules

The revised Ohio Administrative Code section 3701-53-04 incorporates the new rules for calibrations of the Intoxilyzer 8000. See O.A.C. 3701-53-04(B) as set forth below.  The “new” standards “automatically perform a dry gas control test before and after every subject test and instrument certification using a dry gas standard traceable to the national institute of standards and technology (NIST).  The dry gas results ”are valid when the results are at or within five one-thousandths (0.005) grams per two hundred ten liters of the alcohol concentration on the manufacturer’s certificate of analysis for that dry gas standard. A dry gas control result which is outside the range specified in this paragraph will abort the subject test or instrument certification in progress.”

Under the old rules the evidential breath testing machine which tested outside the (0.005) parameters was required to be taken out of service (see O.A.C. 3701-53-04(A)(2)) until repaired.  It is unclear what would happen to a machine that tested outside the parameters under division (B).  It appears that the Radio Frequency Interference Rules (O.A.C. 3701-53-04(A)(1)) will still apply and that a check of the Intoxilyzer 8000 every seven (7) days will be required.  Section (E), which requires refrigeration of the solution appears to be rendered moot by the Intoxilyzer 8000′s pre-test using dry gas.  However, the dry gas will raise its own group of scientific questions which attentive DUI lawyers will be required to check out.

3701-53-04 Instrument checks, controls and certifications.

(A) A senior operator shall perform an instrument check on approved evidential breath testing instruments listed under paragraphs (A)(1), (A)(2), and (B) of rule 3701-53-02 no less frequently than once every seven days in accordance with the appropriate instrument checklist for the instrument being used. The instrument check may be performed anytime up to one hundred and ninety-two hours after the last instrument check.

(1) The instrument shall be checked to detect radio frequency interference (RFI) using a hand-held radio normally used by the law enforcement agency performing the instrument check. The RFI detector check is valid when the evidential breath testing instrument detects RFI or aborts a subject test. If the RFI detector check is not valid, the instrument shall not be used until the instrument is serviced.

(2) An instrument shall be checked using a solution containing ethyl alcohol approved by the director of health. An instrument check result is valid when the result of the instrument check is at or within five one-thousandths (0.005) grams per two hundred ten liters of the target value for that approved solution. An instrument check result which is outside the range specified in this paragraph shall be confirmed by the senior operator using another bottle of approved solution. If this instrument check result is also out of range, the instrument shall not be used until the instrument is serviced or repaired.

(B) Instruments listed under paragraph (A)(3) of rule 3701-53-02 shall automatically perform a dry gas control test before and after every subject test and instrument certification using a dry gas standard traceable to the national institute of standards and technology (NIST). Dry gas control results are valid when the results are at or within five one-thousandths (0.005) grams per two hundred ten liters of the alcohol concentration on the manufacturer’s certificate of analysis for that dry gas standard. A dry gas control result which is outside the range specified in this paragraph will abort the subject test or instrument certification in progress.

(C) Representatives of the director shall perform an instrument certification on approved evidential breath testing instruments listed under paragraph (A) (3) of rule 3701-53-02 of the Administrative Code using a solution containing ethyl alcohol approved by the director of health according to the instrument display for the instrument being certified. An instrument shall be certified no less frequently than once every calendar year or when the dry gas standard on the instrument is replaced, whichever comes first. Instrument certifications are valid when the certification results are at or within five one-thousandths (0.005) grams per two hundred ten liters of the target value for that approved solution. Instruments with certification results outside the range specified in this paragraph will require the instrument be removed from service until the instrument is serviced or repaired. Certification results shall be retained in a manner prescribed by the director of health.

(D) An instrument check or certification shall be made in accordance with paragraphs (A) and (C) of this rule when a new evidential breath testing instrument is placedin service or when the instrument is returned after service or repairs, before the instrument is used to test subjects.

(E) A bottle of approved solution shall not be used more than three months after its date of first use, or after the manufacturer’s expiration date on the approved solution certificate, whichever comes first. After first use, a bottle of approved solution shall be kept under refrigeration when not being used. The approved solution bottle shall be retained for reference until that bottle of approved solution is discarded.

(F) Each testing day, the analytical techniques or methods used in rule 3701-53-03 of the Administrative Code shall be checked for proper calibration under the general direction of the designated laboratory director. General direction does not mean that the designated laboratory director must be physically present during the performance of the calibration check.

(G)Results of instrument checks, controls, certifications, calibration checks and records of service and repairs shall be retained in accordance with paragraph (A) of rule 3701-53-01 of the Administrative Code.

Problems Caused By Manipulation

“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.

Junk Science Hurts Our System

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.

Our American values suggest that when the government accuses you of a crime you have the right (and your attorney the duty) to challenge the evidence against you. If attorneys vigorously fight, the police are trained to do a better job. Judges who hold the state to a higher standard protect the citizens from tyranny. Being pro-law enforcement should not ever mean we give them a pass, but that we hold them to such a standard that even in the most difficult case we trust the system. The maxim that 10 guilty should go free rather than one innocent be punished express the highest esteem for law enforcement and for our system. Allowing junk science in DUI cases has an opposite and corrosive effect to our American values.

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.

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OVI Breat Test Defenses: Exposure to Toulene

February 13th, 2013

Toluene chemical structure

In some instances, defendants have argued that exposure to certain chemicals have caused involuntary intoxication.  Commonly, they will cite to the chemical toulene also known as methylbenzene, phenylmethane, and Toluol.  The chemical is a clear water-insoluble liquid with the typical smell of paint thinners, redolent of the sweet smell of the related compound benzene. Toluene is a common solvent, able to dissolve paints, paint thinners, silicone sealants, many chemical reactants, rubber, printing ink, adhesives (glues), lacquers, leather tanners, and disinfectants. The observed effects after consuming dizziness, euphoria, grandiosity, floating sensation, drowsiness, reduced ability to concentrate, slowed reaction time, distorted perception of time and distance, confusion, weakness, fatigue, memory loss, delusions, and hallucinations.  More importantly for those accused of operating a vehicle impaired, toulene has a chemical structure that may well “fool” a breath testing device.  Among the compounds most commonly mistaken for alcohol are methanol, isopropanol, ethylene, toluene, nitrous oxide, diethyl ether, acetonitrile and isopropanol. The presence of any of these compounds in the DUI suspect’s lung tissue will likely cause a false, or falsely high, blood alcohol reading. People frequently ingest these compounds at work or in other environments where the chemicals are present.

The presence of the such interfering substances has been documented in the scientific literature.

Giguiere, Lewis, and Baselt examined a 52-year-old male cabinet maker with a 20-year history of work-related exposure to lacquers and paint thinners. At 3:36 p.m he received a test reading of 0.369 percent digital, 0.312 percent printout (w/v) on an Intoxilyzer 5000, with the printout indicating “interferent subtracted.” At 3:48 p.m., 0.273 percent digital, 0.245 percent on the printout, also indicating “interferent subtracted.” A blood sample drawn at 3:40 p.m. indicated ethanol 0.0 percent, acetone 0.025 percent (w/v), and toluene 11 mg/L.  Although the highest apparent blood alcohol concentration (0.31 % w/v) given by the Intoxilyzer for this subject is 282 times that of the actual blood toluene concentration, because toluene exhibits a blood:breath ratio that is 116 to 300 times less than that of alcohol, and because it demonstrates significant infrared absorption at the 3.50 A 0.06 micron wavelength used by the Intoxilyzer 5000, we consider it likely that toluene caused the instrumental interference observed in this case.  Mary Anne Edwards, William Giguiere, David Lewis & Randall C. Baselt, Intoxilyzer Interference by Solvents, 10 (3) Journal of Analytical Toxicology 125, 125 (May-June 1986).

Ohio, however, has been hostile to allowing defendants to assert a defense based on the presence of an interferent.  The Ohio Supreme Court has relied on R.C. 2901.21(A)(3) to find that operating a vehicle impaired as a violation of R.C. 4511.19 is a strict liability offense. See State v. Cleary, 22 Ohio St. 3d 198, 490 N.E.2d 574 (1986), superseded by statute as stated in Doe v. Marlington Local School Dist. Bd. of Edn., 122 Ohio St. 3d 12, 2009-Ohio-1360, 907 N.E. 2d 706, 245  Ed. Law Rep. 422 (2009) and in Columbus v. Freeman, 181 Ohio App. 3d 320, 2009-Ohio-1046, 908 N.E. 2d 1026 (10th Dist. Franklin County 2009), appeal not allowed, 122 Ohio St. 3d 1480, 2009-Ohio-3625, 910 N.E. 2d 478 (2009), see also State v. Grimsley, 3 Ohio App. 3d 265, 267, 444 N.E. 2d 1071, 27 A.L.R. 4th 1060 (1st Dist. Hamilton County 1982) holding  (We find in the language chosen by the legislature a plainly indicated purpose to do so, because the overall design of the statute is to protect against the hazards to life, limb and property created by driver who have consumed so much alcohol that their faculties are impaired.)

In State v. Myers, 1999 WL 980695 (Ohio Ct. App. 5th Dist. Stark County 1999) and again in State v. Apple, 2002-Ohio-6731, (Ohio Ct. App. 5th Dist. Fairfield County 2002) courts rejected a defendant’s argument that exposure to solvents in the work place resulted in his being involuntarily intoxicated.  Relying on the cases cited above, the courts found that the DUI/OVI offense is one of strict liability.  OVI is determined by the presence of alcohol without reference to the mental state of the offender.  Interestingly, the same appellate court found, in State v. McDonald, 1993 WL 289906 (Ohio Ct. App. 5th Dist. Delaware County 1993) that a defendant who was charged with driving under the influence of carbon monoxide was not guilty due to the fact that the ingestion was caused by a faulty muffler.  The appellate court found that in order to find a substance to be a drug of abuse or harmful intoxicant, the court must find that a person used it knowingly or with purpose to do so. See Weiler & Weiler, Ohio Driving Under the Influence Law, 2012-2013 ed., at 34.

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. “I’m Charles Rowland and all I do is DUI defense.”

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