14 April

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Fighting for Fairness in DUI Law

As anyone who follows this blog regularly knows, I have a deep and abiding hatred for the 1984 Ohio Supreme Court decision in State vs. Vega (1984), 12 Ohio St.3d 185, 465 N.E.2d 1303. Vega has come to stand for the proposition that an attorney may challenge the particulars of his client's evidential breath test, but the standards and practices of breath testing as determined by the Ohio Department of Health are sacrosanct and cannot be challenged in court. In this commentator's opinion, the Vega ruling allows junk science to become conclusive evidence (example: Ohio's adherence to a one-breath-test...

22 March

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Juvenile DUI in Ohio and the Learner’s Permit

Posted by Dayton DUI

in DUI Process

My 15 year-old was caught drinking. How will this affect her ability to get her license? Ohio has adopted a very low alcohol level for persons under 21. R.C. 4511.19(B) sets the BAC level at .02 percent but less than .08 percent (by weight of alcohol by whole blood or breath, or with an equivalent amount by blood serum or plasma or urine). These quasi-zero tolerance levels are justified by the fact that this age group accounts for a "disproportionate share of alcohol-related accidents." See Ohio Driving Under the Influence Law, 2009-2010 ed., Weiler & Weiler, pp. 24-25. Juveniles who test...

28 February

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Who is Qualified to Conduct a Breath Test?

Posted by Dayton DUI

in DUI Process

Evidential breath testing in Ohio is governed by the Ohio Administrative Code and the Ohio Revised Code. The OVI statute, R.C. 4511.19(D)(1), sets forth the requirements that evidential breath tests are admissible when analyzed by individuals holding valid permits issued pursuant to R.C. 3401.143, and qualified in accordance with O.A.C. 3701-53-07(C) - (F). The Ohio Administrative Code contemplates two types, or ranks, of people who are qualified to administer an evidential breath test: Operators and Senior Operators. "Operators" are authorized to conduct breath tests, whereas, "Senior Operators" is capable of conducting breath tests, caring for the machine and its maintenance and...

08 January

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Dayton DUI Law: Explaining Error Messages and Their Importance

Posted by Dayton DUI

in DUI Process

Ohio utilizes the BAC DataMaster breath test machine to measure the blood alcohol content of a suspect arrested for driving under the influence. The BAC DataMaster is a product of National Patent Analytical Systems, Inc. (NPAS) located in Mansfield, Ohio. National Patent Analytical Systems has certified Charles Rowland in the operation, diagnostic verification and calibration of the BAC DataMaster Breath Alcohol Testing Instrument, the most commonly used breath testing instrument in Ohio for DUI arrests. The BAC DataMaster breath test device requires regular maintenance, and a proper environment for testing administration. The BAC DataMaster is part computer, and uses an LED display. If...

09 December

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O.A.C. 3701-53-02, Approved Evidential Breath Testing Instruments

Posted by Dayton DUI

in DUI Process

Image by frippy via FlickrOhio Administrative Code 3701-53-02(A) sets forth the approved instruments for evidential breath testing in Ohio. It states, (A) The instruments listed in this paragraph are approved as evidential breath testing instruments for use in determining whether a person's breath contains a concentration of alcohol prohibited or defined by sections 4511.19 and/or 1547.11 of the Revised Code, or any other equivalent statute or local ordinance prescribing a defined or prohibited breath-alcohol concentration. The approved evidential breath testing instruments are:BAC DataMaster, BAC DataMaster K, BAC DataMaster cdm; Intoxilyzer model 5000 series 66, 68 and 68 EN; and Intoxilyzer model 8000 (OH-5).O.A.C....

04 December

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Breath Testing: A Synopsis of the Intoxilyzer 8000

Posted by Dayton DUI

in DUI Law, DUI Process

The Intoxilyzer 8000 breath test machine uses the method of INFRARED ABSORPTION to analyze a breath sample. Unlike the BAC DataMaster, the Intoxilyzer 8000 uses a pulsed Infrared light source. The wavelength frequency is 3.4 and 9.4 microns for ethanol and other interfering substances. The decrease in intensity of the infrared light due to absorption by alcohol in the breath sample is proportional to the amount of alcohol in the breath. The sample chamber holds 29.4 cc's of deep lung air for the Intoxilyzer 8000's analysis. The information most recently shared by the Ohio Department of Health indicates that the...

02 December

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DUI and Traffic Enforcement Initiative Announced

Posted by Dayton DUI

in DUI Law, DUI Process

The Ohio State Highway Patrol announced an initiative that will last through the end of the year. Troopers will "focus their attention on impaired and aggressive driving, as well as other high risk behaviors, such as driver inattention. Troopers will also be committed to firm enforcement of safety belt and child restraint violations." Citing an increase in traffic fatalities throughout the year, Patrol superintendent Colonel David W. Picken stated, "My troopers are going to be out there every day - doing everything they can - to try to reverse this upward trend." Ohio has experienced an increase of 49 fatalities...

18 November

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Dayton DUI/OVI Defense for the Juvenile Defendant

Posted by Dayton DUI

in DUI Process

Under 21 DUIs (Operating a Vehicle After Underage Consumption) Ohio has declared "WAR" on underage drinking by passing a series of laws designed to present a "zero tolerance" policy toward under 21 DUI/OVI. If you are under 21 and test over .02% blood alcohol concentration (BAC) you can face penalties including up to 5 years without a driver's license, as well as up to 30 days in jail and a $250 fine. An underage DUI (called OVUAC, or, "operating after underage consumption") can have consequences on academic/athletic scholarships, college admission, sports eligibility,job opportunities and may present other harsh unintended consequences. Given...

28 September

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Portable Breath Test Devices Can Produce Falsely High Tests

Posted by Dayton DUI

in DUI Process

According to the National Highway Transportation Safety Administration (Student Manual HS178 R2/06), a Portable Breath Test Device may produce an artificially high reading. The government document is clear: "PBT instruments have accuracy limitations." (VII-8). The NHTSA manual goes on to set forth "two common factors that tend to produce high results on a PBT. The PBT is often seen in Underage Consumption cases and in Boating Under the Influence (BUI) cases as they provide probable cause for an arrest.Residual mouth alcohol. After a person takes a drink, some of the alcohol will remain in the mouth tissues. If the person...

15 September

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Driving Under the Influence of Drugs (DUID)

Posted by Dayton DUI

in DUI Process

Image via Wikipedia“When compared to alcohol, cannabis is detected far less often in accident-involved drivers. Drummer et al. (2003) cited several studies and found that alcohol was detected in 12.5% to 79% of drivers involved in accidents. With regard to crash risk, a large study conducted by Borkenstein, Crowther, Shumate, Zeil and Zylman (1964) compared BAC in approximately 6,000 accident-involved drivers and 7,600 nonaccident controls. They determined the crash risk for each BAC by comparing the number of accident-involved drivers with detected levels of alcohol at each BAC to the number of...

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