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breath test Tag

Dayton DUI Attorney Charles Rowland > Posts tagged "breath test" (Page 5)

Ohio DUI Law: Another Jurisdiction Dumps the Intoxilyzer 8000

Add Cincinnati to the Jurisdictions Not Relying on the Intoxilyzer 8000 It appears that the ruling from the 12th District Court of Appeals upholding the use of the Intoxilyzer 8000, despite clear language in the Ohio Administrative Code requiring a dry gas control prior to each subject test, has not saved the Intoxilyzer 8000 in nearby Hamilton County.  In May, Municipal Court Judge Melissa Powers agreed and ruled the machine must be cleared after each breath test. Her ruling threw OVI prosecutions within Cincinnati into limbo because defense attorneys used it to attack drunk-driving allegations made using that machine.  Cincinnati City Prosecutor Charlie...

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Defending An OVI: The Hematocrit Defense

How bloody is your blood?  To answer this question we look at your hematocrit.  The hematocrit is the number expressing the cell volume of blood (the size and number of red blood cells in proportion to the rest of the blood).  As humans, we all have a natural variation in our hematocrit.  Healthy men have a natural variance from 40.7% to 50% and healthy women have a natural variance from 36.1% to 44.3%.  The hematocrit level is a moving target.  Illness, hydration and stress can cause variations in the hematocrit level. The hematocrit level affects all breath tests by governing how...

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DUI Case Law Update: State v. Castle (Franklin County)

State v. Castle, 168 Ohio Misc.2d 6, 2012-Ohio-1937 On July 3, 2011, Floyd Castle was arrested and charged with OVI (drunk driving) and other offenses.  When the Trooper administered a chemical test he chose to conduct that test on a BAC DataMaster breath test devise instead of Ohio's newest machine the Intoxilyzer 8000.  The Trooper was qualified as a senior operator on the BAC DataMaster.  The Trooper also held an operator-access card to administer tests on the Intoxilyzer 8000.  The issue before the court is whether or not the Ohio Administrative Code, specifically O.A.C. 3701-53-09(D), allows the Trooper to conduct a...

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Calibration of the Intoxilyzer 8000, O.A.C. 3701-53-04

The revised Ohio Administrative Code section 3701-53-04 incorporates the new rules for calibrations of the Intoxilyzer 8000. See O.A.C. 3701-53-04(B) as set forth below.  The "new" standards "automatically perform a dry gas control test before and after every subject test and instrument certification using a dry gas standard traceable to the national institute of standards and technology (NIST).  The dry gas results "are valid when the results are at or within five one-thousandths (0.005) grams per two hundred ten liters of the alcohol concentration on the manufacturer's certificate of analysis for that dry gas standard. A dry gas control result which...

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The Partition Ratio Defense; Do We Share a Lung?

Is your lung the same as mine?  The breath test machine assumes that it is.  While scientific studies suggest that lung physiology can have a significant impact on breath alcohol testing, Hlastala, "The Impact of Lung Physiology on Breath Alcohol Testing," 1 DWI Journal: Law and Sciences 5, 31-48 (November/December 1986), the breath testing machines assume that all lungs are the same.  It is assumed for purposes of breath alcohol analysis that a person will exhale air at an average temperature of 34 degrees C.  At that assumed temperature, 2100 milliliters of alveolar air (deep lung air) is assumed to...

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Infrared Spectroscopy and the Falsely High Breath Test (by DaytonDUI)

The Intoxilyzer 8000 operates using the scientific principle of infrared (IR) spectroscopy, which identifies molecules based on the way they absorb infrared (IR) light.  More specifically, when molecules in a breath sample are exposed to IR light the way they vibrate changes due to the bending of the (C-O, O-H, C-H, C-C) bonds.  Each type of bond absorbs light at a known wavelength, thus the amount of IR absorption identifies a substance as ethanol and how much ethanol is in the sample.But here’s the rub…  The machine can identify any compound containing a methyl group molecular structure as ethanol thereby...

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DaytonDUI, Defending a Breath Test Case

"I'll Huff and I'll Puff and Blow Your House Down" Did you know that your breathing pattern can significantly alter the concentration of alcohol on your evidential breath test?  According to scientific research, "[t]he subject's test manner of breathing just prior to providing breath for analysis can significantly alter the concentration of alcohol in the resulting exhalation." (Jones, 1982, Schoknecht, 1989) as cited in Physiological Aspecs of Breath-Alcohol Measurement, Alcohol Drugs & Driving Vol. 6, No. 2, A.W. Jones.Hyperventilation "...

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Admissibility of the Standardized Field Sobriety Tests – Statutory Rules

Ohio Revised Code 4511.19(D)(4)(b) sets forth the law on admissibility of the standardized field sobriety tests in Ohio.  It reads, in pertinent part: (b) In any criminal prosecution or juvenile court proceeding for a violation of division (A) or (B) of this section, of a municipal ordinance relating to operating a vehicle while under the influence of alcohol, a drug of abuse, or alcohol and a drug of abuse, or of a municipal ordinance relating to operating a vehicle with a prohibited concentration of alcohol, a controlled substance, or a metabolite of a controlled substance in the whole blood, blood serum...

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“Hiding the Ball” in Ohio DUI Cases

ODH and the Disappearing Intoxilyzer 8000 RecordsOne of the proposed benefits of the adoption of the Intoxilyzer 8000 was to be the consolidation of breath test records in one place.  Previously, breath test records were maintained by the individual police departments.  Implementation and maintenance of the Intoxilyzer 8000 is the responsibility of the Ohio Department of Health and specifically the ODH's Bureau of Alcohol and Drug Testing.  The Ohio Department of Health has started a web site containing all information about breath tests in the state, called the Breath Instrument Data Center. [HERE]  Records were to be available on-line and...

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Ohio OVI Breath Testing – Bigger Is Better?

The Intoxilyzer 8000 breath testing machine adopted by Ohio in all 88 counties differs significantly from the Intoxilyzer 5000 machine that has been used for years.   Both machines operate using INFRARED ABSORPTION to analyze breath samples.  The sample (deep lung aveolar air) is blown into the sample chamber and then excited by an infrared light source.  The decrease in intensity of the IR light due to absorption by alcohol in the breath sample is proportional to the alcohol in the breath. The Intoxilyzer 8000 has a significantly smaller sample chamber (29.4 cc's vs. 84 cc's in the 5000) and...

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