OVI Breath Test Defenses: Exposure to Toulene
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.
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