Posts Tagged ‘the dayton dui attorney’

What Is Wrong With The HGN? (by DaytonDUI)

June 13th, 2013

My eye

The horizontal gaze nystagmus test is an eye test approved by the National Highway Traffic Safety Administration(hereinafter NHTSA) as a tool to detect clues of impairment in drivers.  The HGNtest is one of three psychomotor tests approved as part of the standardized field sobriety testing protocol employed by law enforcement officers throughout the United States and used here in Ohio.

When an officer asks you to follow his pen, he is performing the horizontal gaze nystagmus test.  Nystagmus is defined as the oscillation of the eyeball that occurs when there is a disturbance of the vestibular system or the oculomotor control of the eye.  The nystagmus the officer is looking for is an involuntary motion.  A person is usually unaware of the presence of a nystagmus and cannot control it. Forkiotis, C.J. Optometric Exercise: The Scientific Basis for Alcohol Gaze Nystagmus. 59 Curriculum II, No. 7 at 9 (April 1987); Good, Gregory W.  & Augsburger, Arol R. Use of Horizontal Gaze Nystagmus as a Part of Roadside Sobriety Testing. 63 Am. J. of Optometry & Physiological Optics 467, 469 (1986); Stapleton, June M. et al. Effects of Alcohol and Other Psychotropic Drugs on Eye Movements: Relevance to Traffic Safety. 47 Q.J. Stud. on Alcohol 426, 430 (1986).  The officer is looking for a type of nystagmus wherein the eye moves slowly in one direction and then returns rapidly, sometimes referred to as a jerk or jerking nystagmus. Adams, Raymond D. & Victor, Maurice. Disorders of Ocular Movement and Pupillary Function.  Principles of Neurology.  Ch.13, 117 (4th ed. 1991).

A major weakness in relying on the horizontal gaze nystagmus test in the criminal justice arena is that there are multiple causes of nystagmus that have been observed.  Syndromes such as influenza, vertigo, epilepsy, measles, syphilis, arteriosclerosis, muscular dystrophy, multiple sclerosis, Korsakoff’s Syndrome, brain hemorrhage, streptococcus infections, and other psychogenic disorders all have been shown to produce nystagmus. Additionally, conditions such as hypertension, motion sickness, sunstroke, eyestrain, eye muscle fatigue, glaucoma, and changes in atmospheric pressure may result in gaze nystagmus. Pangman. Horizontal Gaze Nystagmus: Voodoo Science. 2 DWI J. 1, 3-4 (1987).  Caffeine, nicotine and aspirin (alone or in combination with alcohol) can also lead to a nystagmus which mimics a nystagmus attributable to alcohol consumption. Id. at 3-4.  Scientific literature also points to a person’s circadian rhythms or biorhythms as having an affect on nystagmus readings as the body reacts differently to alcohol at different times in the day and even fatigue nystagmus can be found in an individual, and the list, according to critics, goes on.   Id. at 3-4; Booker, J.L.  End-position nystagmus as an indicator of ethanol intoxication. Sci Justice.  41(2):113-116. (April – June, 2001).

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

Ohio Revised Code 4511.19(D)(4)(b) sets forth the standards for admissibility of the results of field sobriety tests in OVI (drunk driving) prosecutions.  See State v. Bozcar, 113 Ohio St. 3d 148, 2007-Ohio-1251, 863 N.E.2d 115 (2007).  In order for the tests to be admissible, the State must demonstrate:

  1. By clear and convincing evidence.
  2. The Officer administered the tests insubstantial compliance.
  3. The testing standards for any reliable, credible, and generally accepted test.
  4. Including, but not limited to, the standards set by NHTSA.

The only guidance provided for determining the meaning of “substantial compliance” has come from State v. Burnside, 100 Ohio St. 3d 152, 2003-Ohio-5372 (2003), wherein the court indicated that errors that are clearly “de minimus” or “minor procedural deviations” are not substantial.  Thus, the State must set forth the testing standards, offer some testimony that the testing standards have been accepted and that the officer has substantially complied.  If the State fails to introduce testimonial or documentary evidence of the standards (most likely via the NHTSA training manual), then they have not met this burden. See Village of Gates Mills v. Mace, 2005-Ohio-2191 (Ohio Ct. App. 8th Dist., Cuyahoga County), wherein the State did not meet this burden despite the Court having its own copy of the manual.

In my practice we have seen a trend to manipulating the “substantial compliance” standard into a de facto prejudice standard.  The burden is being subtly shifted to the defendant to demonstrate that he or she was somehow prejudiced by the officer’s failure to comply with the NHTSA standards.  For example; if the officer does not articulate that he advised the suspect not to raise his or her arms, the Court says that he substantially complied by merely mentioning that he was trained in NHTSA protocols.  If, however, the defense points out that the officer did not give the proper instruction and still scored the test in a way negative to the defendant, the court may consider excluding some portion or all of the test.  Case law can be helpful on this point.

In State v. Clay, 34 Ohio St. 2d 250, 298 N.E.2d 137 (1973) the court ruled, “[h]owever, if by cross examination or otherwise, the defense places such compliance at issue, it then is incumbent upon the State, in order to maintain its burden of proof, to offer the methods and regulations into evidence and prove compliance.”  Some courts may try to take Judicial Notice of the manual (See Evid. R 201) when no manual was introduced.  In State v. Wells 2005-Ohio-5008 (Ohio Ct. App. 2d Dist., Montgomery County) held that the court cannot assume judicial notice when the record does not demonstrate a request for judicial notice or a reference to the manual by the trial court.  The 9th District Court of Appeals issued a great decision on the issue of substantial compliance.  Specifically, the issue involved giving the HGN test while the Defendant was seated in the car.  The Court found that this was not substantial compliance. (State v. Haneberg 5/29/2007, 2007-Ohio-2561, 9th District Court of Appeals).

The validity of Standardized Field Sobriety Tests results is dependent upon law enforcement practitioners following the established, standardized procedures for test administration and scoring. NHTSA’s SFST Student Manual states that the procedures demonstrated in the training program describe how SFSTs should be administered under ideal conditions, but that ideal conditions do not always exist in the field. Variations from ideal conditions, and deviations from the standardized procedures, might affect the evidentiary weight that should be given to test results.

DUI attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in DaytonSpringfieldKetteringVandaliaXeniaMiamisburg, Huber Heights,Beavercreek, 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,www.facebook.com/daytondui and on the DaytonDUI channel on YouTube.  You can also email Charles Rowland at: CharlesRowland@DaytonDUI.comor write to us at 2190 Gateway Dr., Fairborn, Ohio 45324.

The Wright State Three-Day Weekend Intervention Program (by DaytonDUI)

May 21st, 2013

Information about the Wright State University Weekend Intervention Program can be found at their web site [HERE], or by contacting the Director:

 Phyllis Cole, M.A., Director
Center for Interventions, Treatment and Addictions Research
110 Medical Sciences Building
Wright State University Boonshoft School of Medicine
3640 Colonel Glenn Highway
Dayton, OH 45435

(937) (937) 775-3050
Fax: (937) 775-2629
E-mail: wip@wright.edu

You can also access PROGRAM DATES, get on-line REGISTRATION FORMS, learn the RULES & REGULATIONS, get DIRECTIONS to the W.I.P. program, and learn WHAT TO EXPECT. Here are some frequently asked questions about the Wright State Weekend Intervention Program.

Is the WIP like jail?

No, WIP isn’t like jail. Ohio’s drunk driving law is a tough one though, and because we know this has been a difficult time for you, we make sure WIP is not like jail. At WIP, you are treated as a “client” of the program, not a criminal. This means you’ll be treated with dignity and respect by WIP staff members.

Why should I attend this program? I’m not an alcoholic!

WIP is not an alcoholic rehabilitation program. We don’t label our clients or assume that they have drinking problems. WIP is for people who are in trouble with the law because of alcohol. Part of your weekend will be spent in movies and lectures that will provide information with which you can make more informed decisions about drinking. You’ll also spend some time in small group discussions and individual consultation with our professional staff. These professionals will assist you in developing a plan that will help you stay out of trouble in the future. We provide some quiet time for rest and personal reflection as well.

How will attending your program help me?

We believe it can help you in several ways. First, it will allow you to fulfill your obligation to the court. Second, a state certified defensive driving course offered by WIP may allow you to earn a two-point credit on your driving record. Most importantly, though, is the fact that WIP can help you form a plan of action to stay out of this type of trouble. A recent study showed that OVI offenders who participated in WIP and followed the plan of action they worked out with their counselors were less likely to get another OVI. Of course, you’ll get out of the experience what you’re willing to put into it.

Who will know I attend WIP and what happened there?

In a word, no one. WIP will only release information about you after receiving your permission in writing. We take our clients’ confidentiality and privacy very seriously at WIP. In fact, we are even bound by federal and state laws to protect it.

Is the WIP certified?

Yes. The WIP is certified by Ohio’s Department of Alcohol & Drug Addiction Services. As a certified program, the WIP conforms to all appropriate state regulations.

How is the Wright State School of Medicine involved?

The Boonshoft School of Medicine at Wright State University is WIP’s home. An official program of the School of Medicine, WIP is part of Wright State’s commitment to our community’s health and well-being. The WIP also educates medical students about drinking and drug problems and provides opportunities for research.

Who pays for the WIP?

The fees our clients pay cover many program costs, including food, accommodations, materials, and professional services. Wright State’s Boonshoft School of Medicine underwrites all other costs.

When do I have to pay for this?

We expect full payments two weeks prior to your scheduled date to attend WIP. Payment can be made by certified check or money order, or for your convenience, VISA, MasterCard, and Discover are accepted. We would be pleased to respond to further questions you have regarding fees.

If you have additional questions about the Wright State Weekend Intervention Program, contact Charles Rowland by phone at 937-318-1DUI (937-318-1384), 937-879-9542, or toll-free at 1-888-ROWLAND (1-888-769-5263).  For after-hours help contact our 24/7 DUI HOTLINE at 937-776-2671.  Immediate help is available by filling out this CONTACT form.  For information about Dayton DUI sent directly to your mobile device, text DaytonDUI (one word) to 50500.  Follow DaytonDUI on Twitter at www.Twitter.com/DaytonDUI or Get Twitter updates via SMS by texting follow DaytonDUI to 40404. DaytonDUI is also available on Facebook and you can access updates by becoming a fan of Dayton DUI.  You can also email Charles Rowland at: CharlesRowland@CharlesRowland.com or write to us at 2190 Gateway Dr., Fairborn, Ohio 45324.

“LIKE” DaytonDUI on Facebook

April 9th, 2013

facebook8,000 DaytonDUI Fans Can’t Be Wrong

If you like the articles related to Ohio DUI law that you see here, please join our 8,000+ fans on Facebook.  The Dayton DUI Facebook page is a constant feed of information related to Ohio DUI law, decisions from the Ohio and United States Supreme Court, red-light cameras, checkpoints throughout Ohio, developments in civil liberties and the latest information about DaytonDUI.  I promise to work really hard to bring you relevant, funny and enlightening content on a daily basis.  Facebook also offers you a way to participate and register your opinions about Ohio’s tough DUI laws.  So please consider giving us a “LIKE” [HERE].

Charles M. Rowland II dedicates his practice to representing the accused drunk driver in Dayton and throughout the Miami Valley.  He regularly appears in the Fairborn Municipal Court, Beavercreek Municipal Court, Clark County Municipal Court, Kettering Municipal Court, Dayton Municipal  Court, Miamisburg Municipal Court, Xenia Municipal Court, Vandalia Municipal Court, Montgomery County Municipal Court Eastern Division (Huber Heights), Montgomery County Municipal Court Western Division (New Lebanon), and in other courts throughout Ohio.

Did You Sign The Ticket? (by DaytonDUI)

March 13th, 2013

An often-overlooked piece of exculpatory evidence is your signature.

When the officer has read and explained your rights prior to conducting an evidential breath test, he or she will ask you to sign a form entitled the  BMV Form 2255 Notice of Administrative License Suspension.  Under Ohio Revised Code 4511.192 (A) “The officer SHALL give that advice in a written form that contains the information described in division (B) of [that] section and SHALL read the advice to the person. The form shall contain a statement that the form was SHOWN to the person under arrest and read to the person by the arresting officer…”  You will be asked to sign this document in order to establish that you were warned about the consequences of refusing to take the test.   How does it look?  This is a contemporaneous expression of your level of impairment that was made at the exact moment the officer was accusing you of being drunk.  How does it compare to the signature that you gave to the Ohio Bureau of Motor Vehicles when you got your license?  Jurors will get a chance to look at a side-by-side comparison of your fine motor skills.  If you add this testimony to other evidence which demonstrates a lack of impairment, it can be quite powerful.  Hire an attorney who can win your case.

DUI attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in Fairborn, Dayton, Springfield, Kettering, Vandalia, Xenia, Miamisburg, Huber Heights, Beavercreek, 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.

DUI Breath Test Defense: Core Body Temperature as a Defense to a Breath Test

March 8th, 2013

English: Galileo Thermometer detail. Français ...

The cornerstone of evidential breath testing is the scientific principle called Henry’s law, named after pioneering chemist William Henry in 1803.  Henry’s Law states,

At a constant temperature, the amount of a given gas that dissolves in a given type and volume of liquid is directly proportional to the partial pressure of that gas in equilibrium with that liquid.

In evidential breath testing, Henry’s Law allows the machine to assume it can measure the alcohol (ethanol)  in your breath as a ratio to the ethanol in your blood.  That is why the machine requires you to blow for a long time, so that the machine can  “guess” that it is measuring the air closest to your blood which is found deep in your lungs alveolar sacs.  (See also,  my article entitled The Long Blow Breath Test Defense).

The operation of Henry’s law is also vital to the proper calibration of the machine as the influence of temperature on the operation of the scientific principle of  Henry’s Law is well documented.  So an incorrect assumption about the core body temperature can have a dramatic effect on an evidential breath test. 34 Degrees Celcius is the accepted temperature used for breath testing purposes.  How did we settle on 34 degrees?  In 1950, Drager, the pioneering breathalyzer company, adopted 34 degrees which was universally accepted as the standard.  The only problem with this was that Drager only tested 6 people in their study which formed the basis of this standard.  Later studies tell us this is wrong. (See Schoknect, 1995 adopting 35 degrees as a standard using a subject pool of 700 people and Hlastala 1998).

Why is temperature important?  Science tells us that a higher core body temperature will increase the BrAC and a lower core body temperature will lower the BrAC.  International Association for Chemical Testing, IACT Newsletter, Vol. 9, No. 2, July 1998, Dale A. Capenter Ph.D. & James A. Buttram, Ph.D. as cited by James Nesci, Esq. An 8.62% increase for each degree C increase in core body temperature and a 6.8% decrease per degree C in core body temperature has been reported (Fox & Hayward 1989, Fox & Hayward 1987 via Drunk Driving Defense, 6th Ed., Taylor).  The scientists concluded, “[t]here findings support the notion of making some kind of temperature control in connection with evidential breath testing and if necessary a correction to the result.” Psysiological Aspects of Breath Alcohol Measurement, Alcohol Drugs & Driving, Vol. 6, No. 2, A.W. Jones.  Therefore, it is imperative that the body temperature is known.  Breath testing procedures that do not require measurement of body temperature are an inaccurate means of determining level of intoxication

We also know that temperature variations can occur amongst individuals during the course of the day, from one person to another, and can be dramatically affected by illness, exertion or trauma.  Women also have a temperature variation of about 1°C with the menstrual cycle.  Tell your attorney anything that may have affected your core temperature at or near the time of arrest.  Were you sweating profusely?  Were you suffering from a fever?  Were you sitting in front of a heater on full blast?  Did you run or have your heart race?

Dayton/Springfield  DUI attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver.  He has the credentials and the experience to win your case and has made himself the Miami Valley’s  choice for DUI defense.  Contact Charles Rowland by phone at 937-318-1DUI (937-318-1384), 937-879-9542, or toll-free at 1-888-ROWLAND (888-769-5263) or visit www.DaytonDUI.com.  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@DaytonDUI.com or write to us at 2190 Gateway Dr., Fairborn, Ohio 45324.