Posts Tagged ‘ovi trial attorney’

Blood Contamination & Candida Albicans

December 27th, 2011
Feeling Faint

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.  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.

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

 

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OVI Lawyer Quote of the Week

June 18th, 2010
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“I do not discourage professionalism, but I do not know why it cannot be compatible with efficiency.”

-The Honorable Eugene Nevius, Clark County Municipal Court, Springfield, Ohio-

If you are arrested for OVI in Springfield, Clark County, Ohio please contact Springfield OVI attorney Charles M. Rowland II for assistance with your OVI charge.  Information about the Clark County Municipal Court is available here, or you can visit www.SpringfieldDUI.com.  Charles M. Rowland II can be reached at 937-318-1DUI (318-1384).

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Trial Attorney Toolkit – Motion in Limine

February 8th, 2010
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Black’s Law Dictionary defines a motion in limine as “[a] pretrial request that certain inadmissible evidence not be referred to or offered at trial.” Black’s Law Dictionary (7th ed.) p. 1033.  The motion in limine has been called a “procedural orphan” due to its lack of statutory or procedural authority despite being recognized by the Ohio Supreme Court in State v. Grubb 28 Ohio St.3d 199, 503 N.E.2d 1141 (1985). See Ohio Driving Under the Influence Law, Weiler & Weiler, 2009-2010 ed., sec.12.9, p. 355.  The practitioner should be careful not to rely upon a motion in limine in lieu of a motion to suppress due to the Ohio Supreme Court decision in State v. French, 72 Ohio St.3d 446, 650 N.E.2d 887 (1995), which held that a motion to suppress is the exclusive procedural method to challenge the admissibility of alcohol and drug test results.  However, a well-researched and timely motion in limine can be used to attack prior convictions, refusal issues, horizontal gaze nystagmus issues, scientific and expert witness issues and results of a portable breath test devise. (for a more exhaustive list see Ohio Driving Under the Influence Law, Weiler & Weiler, 2009-2010 ed., sec.12.11, p. 357).  Another potential landmine for the DUI practitioner is that your rights on appeal are significantly limited with a motion in limine versus a motion to suppress.  By its nature, a motion in limine ruling is tentative and often trial/evidence dependent. Therefore, a limine ruling will not form the basis for an appeal unless it is preserved for trial. See Columbus v. Sullivan, 4 Ohio App.3d. 7, 446 N.E.2d. 485 (1982).  Further, unlike a motion to suppress, a plea (even a no-contest plea) waives the right to appeal the motion in limine ruling. State v. Benton, 136 Ohio App.3d 801, 737 N. E.2d 1046 (2000).  The motion in limine is a powerful tool that can be used with devastating effectiveness as a trial approaches.  This trial lawyer’s tool should not be overlooked.

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