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Dayton DUI Attorney Charles Rowland > Posts tagged "breath test" (Page 7)

Blood, Breath & Urine Testing In Ohio: The Three Hour Rule

Help your attorney defend your case by creating a credible time-line of events. R.C. 4511.19(D) sets forth a three-hour time limitation for the collection of bodily substances for alcohol and/or drug testing.  This rule is a change from Ohio's previous law which gave the State only two hours in which to obtain a sample.  The time requirement has been adopted by the Ohio Supreme Court in Cincinnati v. Sand, 43 Ohio St.2d 79, 330 N.E.2d 908 (1975) and more definitively at Newark v. Lucas, 40 Ohio St.3d 100, 532 N.E.2d 130 (1988),  where the court held that tests in test cases (cases involving a violation of...

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Residual Mouth Alcohol, Slope Detectors and the 20 Minute Observation

One of the most prevalent causes of error in breath-alcohol analysis is the presence of alcohol in the mouth.  This residual mouth alcohol (hereinafter R.M.A.) contaminates the expired breath captured by the machine and elevates the test results radically.  The BAC Datamaster’s computer is programmed to assume that a breath test reading is 100% deep-lung (alveolar) air.  This captured “deep-lung” air is then multiplied by 2100 pursuant to the accepted and scientifically defensible partition ratio.[1] Using these built-in assumptions it is evident that a very small amount of undigested (or trapped) alcohol can have a disproportionate impact on the reading.At...

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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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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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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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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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I Did Not Refuse!

If you were tested on an Intoxilyzer 5000 breath test machine, the source-code (software inside the machine) may have been rigged against you.  One of the most dramatic happenings in the science of a DUI has been the developments of the source-code battle taking place in Minnesota.  Ohio has recently rejected the Ohio-made BAC DataMaster in favor of the Intoxilyzer breath test machine (often referred to as the Intoxi-LIAR) so we can soon expect similar science-based battles in the Buckey State.Chuck Ramsay, a DWI attorney in Minnesota has been litigating the reliability of the Intoxilyzer 5000 for several years.  Recently...

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The “LONG BLOW” Breath Test Defense

 Did you know that an evidential breath testing instrument never really knows your "REAL" breath-alcohol concentration? Find out if you have to blow the breathe test in this video. The air that is expelled at the beginning of the blow has less ethanol than air exhaled at the end.  This is due to the fact that gravity forces blood to pool at the base of the lungs.  Air from your upper lungs has less a concentration and is exhaled first.  Subjects are exhorted to "blow longer" so that the deep lung air is measured.  The longer the blow the higher the...

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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...

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