05 July

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Breathalyzers and the Body Temperature Defense

Sources of Error in Breath Testing (Part One)Image via WikipediaDeviations in the normal body temperature can result in an error in the evidentiary breath test. In his article "Body Temperature and the Breathalyzer Boobytrap," 721 Mich B.J. (1982), Dr. Hlastala confirms that the normal body temperature of a healthy person may"may vary by as much as 1 degree centigrade above or below the normal mean value of 37 degrees centigrade or 1.8 degrees F from the mean value of 98.6 degrees F." The higher the body temperature, the greater the error rate of the breathalyzer machine. LaBianca...

22 June

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Ohio’s Implied Consent Law

Posted by Dayton DUI

in DUI Process

[caption id="" align="alignright" width="210" caption="Image via Wikipedia"][/caption]In Ohio, any person who operates a vehicle within the state of Ohio is said to have given his or her consent to a chemical test of their blood, breath, or urine to determine alcohol content if arrested for OVI (drunk driving). Pursuant to recent changes in Ohio OVI law, an OVI suspect has 3 hours to comply with the request to submit to a test, and failure to do so within the 3 hour limit will be considered a "refusal." Recent changes allow the police to use "whatever reasonable means are necessary to...

21 June

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Oral Intake and the Twenty-Minute Rule

Posted by Dayton DUI

in DUI Process

THE LAW RELATING TO “ORAL INTAKE” AND THE “TWENTY-MINUTE OBSERVATION PERIOD.When applying the science to the law, the Court can look to recent law as set forth below which would grant the court the power to invalidate the test. However, the State’s best argument is to avoid application of the science by the court and have the issue go before a jury.SUBSTANTIAL COMPLIANCE IS NOT MET WHEN THE DEFENDANT TAKES A TEST WITH A FOREIGN OBJECT IN HIS MOUTH.In State v. Baldridge 2001-Ohio-7029, 2001 WL 1673756 (Ohio Ct. App. 5th Dist....

07 June

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Ohio Breath Test Law; the 3-hour Rule

Posted by Dayton DUI

in DUI Law, DUI Process

Substantial Compliance Requires Collection Within Three Hours. 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 the prohibited...

19 May

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Residual Mouth Alcohol and Gastroesophogeal Reflux

Posted by Dayton DUI

in DUI Process

Undetected, raw, unabsorbed alcohol in the mouth may falsely elevate the results of a breath test. This residual mouth alcohol (RMA) can come from items ingested just prior to the test, from regurgitated (burped) air from the stomach, or from gastroesophogeal reflux. Ohio testing protocol attempts to guard against this testing flaw by requiring officers to observe the defendant for twenty minutes prior to the test. They look for burping, vomiting or any ingestion of items into the mouth. Lazy observation by the police officer...

17 May

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Junk Science in Ohio DUI/OVI Cases

Posted by Dayton DUI

in DUI Process

[caption id="attachment_26" align="alignleft" width="150" caption="Intoxilyzer 8000"][/caption]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 THE AMOUNT...

10 February

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Intoxilyer 8000: Costs High and Implementation Slow

Posted by Dayton DUI

in DUI Process

[caption id="" align="alignright" width="240" caption="Image by OregonDOT via Flickr"][/caption]By James NashTHE COLUMBUS DISPATCH In the nine months since state officials unveiled a new device hailed as a potent new weapon against drunken driving, the equipment has been used rarely and only in a few rural and suburban pockets of Ohio. A federal grant provided $7 million to buy 710 portable breath testers in December 2008 despite warnings from attorneys, local judges and some scientists that the machines were unreliable and vulnerable to legal challenges.The Intoxilyzer 8000 made its debut in Clermont County in May. Since then, the instrument has been used just 1,116...

15 January

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Breathalyzers Don’t Distinguish Between Types of Alcohol

Posted by Dayton DUI

in DUI Process

"I only drink beer...

07 December

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Breath Testing: What an “INVALID SAMPLE” reading means on a BAC DataMaster

Posted by Dayton DUI

in DUI Process

“INVALID SAMPLE” WHAT IT IS AND WHAT IT IS NOT “I was standing by the machine. It beeped and the officer told me to blow. I blew and blew. The officer got really mad and told me that I was messing with the machine. He said I had to do it again. The next time I blew again…really hard. He told me that I was being difficult and told me that he was going to say I was refusing to take the test. This was horrible.”-Client Testimonial-WHAT AN INVALID SAMPLE IS NOTAfter hearing a story like the one above, the client hands you two pink BAC DataMaster tickets...

12 October

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Failing a Portable Breath Test Devise

Posted by Dayton DUI

in DUI Process

Here's a great example of why you should never take the "portable" or "roadside" breath test....

breath test Tag

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