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DUI Process

Dayton DUI Attorney Charles Rowland > DUI Law  > DUI Process (Page 20)

Urine Tests Produce Too Many False Positives

The EtG test is a biomarker test that detects the presence of ethyl glucuronide in urine samples. Usually, it is used to monitor alcohol consumption in individuals who are legally prohibited from drinking alcohol by the justice system or restricted from drinking by their employers. (Source)  The EtG urine alcohol test has come under criticism because it is so sensitive that "it can give positive results for merely coming in contact with common household products that contain alcohol, such as aftershave and mouthwash." The Role of Biomarkers in the Treatment of...

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Dayton DUI Law: The GERD Defense

Regurgitation and Reflux are not the same thing!  Reflux is the movement of ethanol vapor back up the esophagus from the stomach which has the ability to contaminate a breath sample.  The defendant who suffers from Gastroesophageal Reflux Disease (GERD) will not exhibit outward signs of distress or other signs which a breath testing technician would likely notice.  The surging ethanol vapor can cause an elevated reading on an evidential breath testing device.  The elevated test can appear following a valid and conscientious observation period.  Because the evidential breath testing device cannot distinguish contaminated air from deep-lung alveolar air, it...

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DUI on a Bicycle

Where you ride your bicycle will determine whether or not you can be charged with an Ohio DUI. Ohio's drunk driving statute (O.R.C. 4511.19) prohibits operating a vehicle under the influence "anywhere in the state."  This makes the DUI statute unique because offenses such as driving under suspension (O.R.C. 4507.02) and driving without a license (O.R.C. 4510.12) require the offense to occur on a public highway or on areas open to the public.  In State v. Carr, 1999 WL 1314672 (Ohio Ct. App. 11th Dist. Lake County 1999), a person was convicted of drunk driving in his own back yard.  But...

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Breaking Up With the Breath Test Machine

Dear Ohio Breath Test Machine:I am a human.  As such, I pride myself on my individuality.  It hurts me that you don't care if I'm a man or a woman.  It bothers me that you don't care what I had to eat, what my lung partition ratio is, or what my metabolic rate is.  I'm concerned about your indifference to how much I weigh or how my stomach produces too many/too little enzymes that metabolize ethanol.  You don't seem to care what my alcohol content was at the time I was driving.   It has become obvious to me that you...

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Intoxilyzer 8000 Finding Opposition Throughout Ohio and Beyond

In an article in the Athens News (click HERE), the newspaper outlines the latest 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." Up till now, prosecutors...

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Ohio Speeding Law Update: Laser Guns & Admissibility

Great Speeding Decision from the 12th Appellate District In State v. Starks, 2011-Ohio-2344 the Defendant was stopped for a speeding violation  in a construction zone and went to trial pro se. He objected to any testimony regarding a laser gun.  The trial court took judicial notice of the reliability of the laser gun and the defendant was convicted.  He appealed to the 12th District Court of Appeals and his conviction was reversed.  The Court ruled, Although the underlying principles of laser technology may be the same from one device to another, generally judicial notice as to the reliability of a...

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Intoxilyzer 8000 Evidence Thrown Out in Circleville, Ohio

Rollout of breath tester hits legal snag As reported HERE in the Columbus Dispatch, "Judge Gary Dumm of Circleville Municipal Court ruled Thursday 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."Columbus lawyer Tim Huey, president-elect and DUI chairman...

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Are We One Step Closer to Killing State v. Vega?

Most challenges to a breath testing instrument in Ohio are limited by a 1984 Ohio Supreme Court ruling (State v. Vega) that held 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 10 year.  Well, a case out of Athens may represent a crack in the dam.  The story is from the Columbus Dispatch.Breath-tester’s reliability challenged in hearingSaturday, May 28, 2011...

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Microbial Contamination of the Blood Draw

With recent changes in Ohio OVI law, attorneys should expect more blood test cases. Blood cases present the opportunity for multiple scientific defenses, but only if we recognize them and present them in a coherent manner before our judges.  Many of these scientific defenses can arise from problems in the blood draw.  If the blood draw is flawed microorganisms may contaminate the blood sample.  If this happens sugars (natrually present in the blood) can be converted into ethanol, resulting in a fasley high test.  Candida albicans is a yeast that lives on just about everything and is resistant to most...

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Why Allowing Junk Science in the Courtroom is Hurting 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...

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