Posts Tagged ‘vandalia ohio ovi’

Save Your CDL (by DaytonDUI)

January 30th, 2013

I Fight For Commercial Drivers

Out of Service

Ohio Revised Code 4506.16 sets for the ways that you can be disqualified or lose your commercial driver’s license.

  • 4506.16(D)(5) If you are convicted of two “serious traffic violations” within a three (3) year period, your commercial driver’s license will be suspended for sixty (60) days.
  • 4506.16(D)(6) If you are convicted of three “serious traffic violations” within a three (3) year period, you commercial driver’s license will be suspended for 120 days.

If you receive a conviction of any of the following, your commercial driver’s license will be suspended for one year:

  • 4506.15(A)(2) You have a BAC of .04% or more
  • 4506.15(A)(5) You have one conviction of driving under the influence of a controlled substance
  • 4506.15(A)(6) You have one conviction of using the commercial vehicle in the commission of a felony.
  • 4506.15(A)(7) Refusing to submit to a blood, breath or urine test will also result in a one year suspension of your CDL.

NOTE: If you are convicted of any of the above while operating a vehicle placarded for hazardous materials your disqualification increases to three years pursuant to O.R.C. 4506.16(B)(6).

A second conviction under any of the following statutes results in a lifetime suspension of your CDL, the so-called “Death Penalty.”

  • 4506.15(A)(2) You have a BAC of .04% or more
  • 4506.15(A)(5) You have a second conviction of driving under the influence of a controlled substance
  • 4506.15(A)(6) You have a second conviction of using the commercial vehicle in the commission of a felony.
  • 4506.15(A)(7) Refusing to submit to a blood, breath or urine test.
  • 4506.15(D) Leaving the scene of a traffic crash.
Ohio law also provides for a lifetime suspension if you are convicted of the commission of a felony with a controlled substance pursuant to O.R.C. 4506.16(B)(4).  This is one of the only lifetime suspensions upon a first conviction.
Commercial Drivers should also be aware of Out-of-Service violations which can result in lengthy suspensions:
  • 4506.15(A)(7) A first violation Out-of-Service results in a 90 day suspension.
  • 4506.16(A)(2) A second violation Out-of-Service is a one (1) year suspension.
  • 4506.16(A)(3) A third violation Out-of-Service results in a three (3) year suspension.
  • 4506.16(B)(1) A first violation Out-of-Service while transporting hazardous materials is a 180 day suspension
  • 4506.16(B)(2) A second violation Out-of-Service while transporting hazardous materials is a three (3) year suspension.

DUI attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburgSpringboro,Huber HeightsOakwoodBeavercreekCenterville 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. “All I do is DUI

The Problems With Portable Breath Tests (by DaytonDUI)

January 28th, 2013

Drink Driving Law & Motoring History

In possibly the best article you will ever read on portable breath testing, DUI attorneys Justin McShane and Josh Lee describe the portable breath test devises which are used by the Ohio State Highway Patrol as a “potentially dangerous, non-specific and non-selective measures at roadside.”  You can find the article HERE and in the Voice for the Defense.

The Problems of Fuel Cell Devices

1.1. Lack of Specificity20 for Ethanol

As PBTs are used for purportedly forensic purposes, their specificity for ethanol becomes a critical factor. The electrochemical detector is not specific for ethanol.21 Indeed, there is “much evidence to show” they are actually not specific for ethanol.22 Garriott’s Medicolegal Aspects of Alcohol lists methanol, isopropanol, n-propanol, and acetaldehyde as other alcohols that fuel cells can respond to in addition to ethanol.23 Other studies have also found fuel cells reacting to substances other than ethanol.24

A. W. Jones, PhD, a renowned toxicologist, reports that fuel cells will respond to compounds that contain the hydroxyl group, other than ethanol.25 In a later study, Jones again found that the fuel cell is not specific to ethanol and that other alcohols and aldehydes will also oxidize in the fuel cell.26 This is important because it has been found that in the alcohol family there are over 1,500 chemical compounds that are not found in alcoholic beverages.27 Moreover, it is claimed that ketones such as acetone are not detected by the fuel cell as they are with infrared devices.28 Interestingly, there is at least one documented case where a driver has tested over the legal limit for ethanol, due to acetone, when the driver had no ethanol in his system.29 The fuel cell device used on the stop had falsely reported isopropanol as ethanol.30 The individual had latent diabetes and had been fasting, causing acetone to be present in his system, which his body in turn reduced to isopropanol, resulting in a true false positive.31

In addition, there are documented cases of methanol being mistakenly reported as ethanol by fuel cell devices.32 Absent chromatographic separation, which PBTs do not employ, distinguishing ethanol from methanol is an extremely difficult task,33 if not an impossible one. Of import is that when a PBT detects ketones and hydrocarbons, it can mistakenly report them as ethanol and add to the breath alcohol concentration.

Further proof of the apocryphal nature of the manufacturers’ claims that these devices will not react to anything other than alcohol is documented on YouTube by one of the authors of this paper, Justin J. McShane, F-AIC, JD. The recording shows a .046 g/210L breath reading on an Intoximeters FST PBT, while free of ethanol and eating ordinary white bread.34 In addition to white bread, there are other cases of a fuel cell device falsely reporting milk, soda pop, and cigarette smoke as ethanol.35 Toothpaste (specifically Sensodyne) that contains Sorbitol, a type of alcohol, registers as ethanol on a fuel cell device.36 This has been independently verified in testing by the Boston Herald.37

Another source of Ethanol is by sugar fermentation. This process has been found to occur naturally in the human body when yeast from breads and carbohydrates are present.38 Informal tests at DWI/DUI seminars across the United States have shown results over the legal limit (0.08 g/210L of breath) merely by chewing pizza, bread, or hot dog buns.39 Common foods and drinks have even been found to contain alcohol. Diet 7-Up contains some small amounts of ethanol, and high-energy drinks such as Monster and 180 Energy contain several times more ethanol than Diet 7-Up.40Breads, pizza, English muffins, wheat bread, and apple walnut rolls have all been found to contain both yeast and ethanol.41 See the endnotes for tables containing more detailed information about the alcohol content of various soft drinks and baked goods, and other beverages.42

1.2. Residual Mouth Alcohol (RMA)

As discussed earlier, alcohol only affects the body once it is transported to the brain by the blood. The PBT and its method assume that the breath sample and source of ethanol comes only from the deep lung or alveolar air.43 A second assumption is that there is no residual mouth alcohol (RMA). As such, we citizens interested in science must be concerned with the validity of these assumptions when testing breath samples. For there to be any measure of the true value, these key assumptions are required to be accurate.44

With the above in mind, it is well known that after drinking an alcoholic beverage, the body retains alcohol in the mucosal lining of the mouth for some time.45 When breath makes contact with mouth alcohol, then the alcohol reading will be falsely ele­vated,46 fantastically so at times. Sources of mouth alcohol include recent ingestion of an alcoholic drink, regurgitation of stomach contents, eructation of stomach gases, Gastroesophageal Reflux (GER), Gastroesophageal Reflux Disease (GERD), Laryngoesophageal Reflux (LER), Laryngopharyngeal Reflux (LPR), and use of breath freshening items.47

PBTs are not designed with RMA safeguards. They do not contain slope detectors48 that would help in detecting RMA.49Most importantly, when RMA is present, it only works one way: against the defendant, creating a falsely high ethanol content reading.50 Therefore, without these protections, PBTs have no way of distinguishing alveolar air from an inaccurate false high reading caused by any other source. One study found that it might take up to 19 minutes for RMA dissipation.51 The same study cited another source that stood for the possibility of effects lasting for up to one hour after consumption.52

This is why deprivation/observation periods are mandated in full Evidentiary Breath Testing (EBT) schemes like the Intoxilyzer 5000 EN. Yet, at roadside, there is no such requirement. Therefore, it is best practice that a suitable deprivation/observation period be conducted at roadside to ensure the subject’s sample is only deep lung air.53 Further, it would be best practice for the officer to conduct a replicate analysis after another deprivation period to further give confidence to a PBT estimate.54

1.3. Other Factors

Carry Over: Carry over is a potential problem where a portion of a previous breath specimen remains in the PBT and is added to a subsequent estimate. As the National Highway Traffic Safety Administration has cautioned, if the air temperature is low enough, it is possible for carry over to occur in that one person’s sample remains in the PBT and carries over to the next person’s test.55 It is not difficult to see the problems this could cause when the PBT is being used on many drivers, one after another. An example of where this could be a problem is in a roadblock situation where multiple drivers are being tested or in an underage drinking event.

Radio Frequency Interference: PBTs do not have detectors to guard against interference caused by radio frequencies (RFI).56 Here, it is important to note that in Texas, EBT devices, like the Intoxilyzer 5000 EN, are required to have RFI detectors by the Texas Department of Public Safety Breath Alcohol Testing program. Absent an RFI detector, an officer will not know when RFI interference occurs because electric fields are not detectable by the five human senses.57 One manufacturer even cautions officers to avoid “environments with high levels of radio interference or magnetic fields.”58For the patrol officer, there are plenty of sources of RFI—e.g., hand-held and vehicle mounted radio transmitters, cell phones, CB radios, light bars, in-car video, computer terminals with internet link inside the patrol vehicle, and police radar.59

Independent Sources of Variation: These include the traditional metrological concerns of calibration and bias of the device itself, and variations in taking of the breath sample: temperature fluctuations, physiological differences of individuals, and phase of ethanol metabolism to name a few.60 Most police agencies do not perform routine or preventive calibration or verification checks for these PBTs during the entire period of their deployment in the field. If the police agencies do perform calibration or verification checks, the efforts are typically not validated or well designed.

Ohio Law On Portable Breath Testing

Ohio’s Fourth District Court of Appeals slam the use of portable breath test devices as trial evidence in State v. Shuler, 168 Ohio App.3d 183, 2006-Ohio-4336.  The unique facts of this case were that the defendant was stopped on November 6, 2004 for making an erratic, improper turn.  He was “asked” to leave the vehicle for submission to field sobriety tests.  In addition, the officer administed a portable breath test to the defendant.  The PBT result was .078 (below the legal limit).  The defendant was arrested and taken to the station where the results of the BAC test were .126.

Shuler argued for admission of the PBT test as evidence.  The trial court denied the PBT’s admission saying that the PBT devise and technology are not sufficiently reliable to be used as evidence.  This should be viewed as perverse since the very same technology is often used by the courts as a basis for probable cause.  See State v. Coates, Athens App. No. 01CA21, 2002-Ohio-2160, 2002 WL 851765 and State v. Gunther, Pickaway App. No. 04CA25, 2005-Ohio-3492, 2005 WL 1594836.

The court stated, “PBT devices are not among those instruments listed in Ohio Adm. Code 3701-53-02 as approved evidential breath-testing instruments for determining the concentration of alcohol in the breath of individuals potentially in violation of R.C. 4511.19. PBT results are considered inherently unreliable because they may register an inaccurate percentage of alcohol present in the breath, and may also be inaccurate as to the presence or absence of any alcohol at all. See State v. Zell (Iowa App. 1992), 491 N.W.2d 196, 197.  PBT devices are designed to measure the amount of certain chemicals in the subject’s breath.  The chemicals measured are found in consumable alcohol, but are also present in industrial chemicals and certain nonintoxicating over-the-counter medications.  They may also, appear when the subject suffers from illnesses such as diabetes, acid reflux disease, or certain cancers. Even gasoline containing ethyl alcohol on a drivers clothes or hands may alter the result.  Such factors can cause PBTs to register inaccurate readings such as false positives. See Tebo, New Test for DUI Defense: Advances in Technology and Stricter Laws Create Challenges for DUI Lawyers, Jan. 28, 2005, www.duicentral.com/aba_journal/.  This lack of evidential reliability provides a basis for excluding PBT results from admissibility at trial.  See Elyria v. Hebebrand (1993), 85 Ohio App.3d 141, 619 N.E.2d 445; State v. Kerns (1998), Van Wert App. No. 15-97-8, 1998 WL 142384.

Wow, but they are still good for probable cause determinations?!?  That is like saying that we won’t allow the use of a psychic in court because it is hooey, but we will allow the officer to use a psychic in determining probable cause to place you under arrest and forever change your life.  If you find yourself facing a DUI/OVI charge please contact someone who is familiar with the fuel cell technology and its unreliability as an indicator of alcohol impairment.  DUI attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in Fairborn, Dayton, SpringfieldKetteringVandaliaXeniaMiamisburgHuber HeightsBeavercreekCentervilleSpringboro, 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.

 

Judges To Consider Military Service At Sentencing

December 13th, 2012

Roundel of the United States Air Force and air...

Ohio appears ready to pass a requirement that judges consider a persons’ military service when deciding a sentence in a criminal case.  Sub. S.B. 330, proposed by Senator Joe Schiavoni would apply to both misdemeanor and felony charges. “They have been through things that most of us haven’t,” Schiavoni said. “It’s so, so important we consider that before they get thrown into jail and their problems aren’t handled properly.” Schiavoni says the bill has bipartisan support from both legislators and judges.

Here is one version of the key language in the bill requiring consideration of military service at sentencing:

(F) The sentencing court shall consider the offender’s military service record and whether the offender has an emotional, mental, or physical condition that is traceable to the offender’s service in the armed forces of the United States and that was a contributing factor in the offender’s commission of the offense or offenses.

The bill will now go to the Ohio House of Representatives, where it is expected to be voted on before the end of the lame duck session.
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.

MADD’s Legislative Agenda Moving Forward

December 12th, 2012

CarryNationAs we have long warned in this blog, MADD and its allies in government are working hard to implement harsh measures that will test every person who gets into a car without their consent for alcohol impairment.  Yesterday,  the National Transportation Safety Board has officially urged every state to “require all convicted drunken drivers, including first-time offenders, to use devices that prevent them from starting a car’s engine if their breath tests positive for small (non-impairing) levels of alcohol.”  This would require a legislative change in Ohio OVI law which now requires such devices only for multiple offenders.

The board also urged the National Highway Traffic Safety Administration to speed up its research effort with automakers to develop systems that can determine a driver’s blood alcohol concentration using infrared light when the driver presses an ignition button. [DADDS system] The vehicle won’t start if the alcohol concentration is too high.  The technology, which is sometimes breath-based rather than touch-activated, is already in use in some workplace drug-testing programs.  If the technology were incorporated into all new vehicles, eventually all drivers would be alcohol-tested before driving.  That could potentially prevent an estimated 7,000 drunken-driving deaths a year, the board said.

The American Beverage Institute, which represents about 8,000 chain restaurants in the U.S., said mandatory ignition interlock devices should be reserved for “hardcore” drunken drivers and it opposes the new technology that government and industry are researching.  First-time drunk drivers with blood alcohol levels that are less than double the legal limit should be treated differently than drivers with higher alcohol levels and repeat offenders, Sarah Longwell, the institute’s managing director, said.  You can access the original article HERE or visit the Law & Sentencing Blog for an exhaustive list of articles dealing with this topic.  This is setting up to be quite a fight and, if the prohibitionists are defeated, could result in a turning of the tide against un-American, un-Constitutional and ineffective MADD tactics.

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.

Is The Smell Of Alcohol Enough To Justify Field Sobriety Testing?

December 10th, 2012

Français : Nez

Some Ohio courts have upheld determinations that the mere presence of a moderate to strong odor of alcohol, coupled with a proper initial stop, is sufficient to justify the administration of field sobriety tests. See, e.g., State v. Tackett, 2d Dist. No. 2011-CA-15, 2011-Ohio-6711 (“[t]his court has, however, repeatedly held that a strong odor of alcohol alone is sufficient to provide an officer with reasonable suspicion of criminal behavior”). See also State v. Schott, 2d Dist. No. 1415, 1997 Ohio App. LEXIS 2061 (May 16, 1997); State v. Haucke, 2d Dist. No. 99 CA 77, 2000 Ohio App. LEXIS 1049 (Mar. 17, 2000); State v. Turner, 4th Dist. No. 812, 1993 Ohio App. LEXIS 40 (Jan. 11, 1993).  Please note that Dayton and most of the Miami Valley is in the Second Appellate District which has adopted this as the court’s standard.  

Other districts have required the presence of additional factors in order to uphold testing. See, e.g., State v. Appelhans, 6th Dist. No. WD-10-026, 2011- Ohio-487 (affirming denial of a suppression motion based upon glassy eyes, slurred speech, odor of alcohol, and refusal to blow into a portable breathalyzer device); State v. Koogler, 12th Dist. No. CA2010-04-006, 2010-Ohio-5531 (reversal of suppression based on odor of alcohol, glassy eyes, and passenger’s possession of an open container); City of Cincinnati v. Bryant, 1st Dist. No. CA-090546, 2010-Ohio-4474 (reversal of suppression based on erratic driving, moderate odor of alcohol, slurred speech, watery and glazed eyes, confusion and clumsiness while retrieving insurance card and exiting vehicle, and admission of alcohol consumption); State v. Burwell, 3d Dist. No. 12-09-06, 2010-Ohio-1087 (affirming denial of a suppression motion based on the early morning hour on a Saturday, erratic driving, odor of alcohol, glassy and bloodshot eyes, and admission of alcohol consumption); State v. Foster, 5th Dist. No. 2009AP020007, 2009-Ohio-4764 (reversal of suppression based on odor of alcohol, early morning hour, guarded and nervous demeanor, driving on a flat tire, and admission of alcohol consumption); State v. Hill, 7th Dist. No. 07-CO-12, 2008-Ohio- 3249 (affirming denial of a suppression motion based on erratic driving, moderate odor of alcohol, bloodshot and glassy eyes, and slurred speech); City of Strongsville v. Troutman, 8th Dist. No. 88218, 2007-Ohio-1310 (affirming denial of a suppression motion based on early morning hour, glassy eyes, slurred speech, moderate odor of alcohol, presence of beer in the back seat, and admission that defendant was coming from a bar).

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.