Defense attorneys and forensic experts have claimed for years breath-testing machines are unreliable. Those claims tend to fall on deaf ears due to the inherent bias of the source: defense attorneys are advocates for clients accused of crimes based on the results of the machines. Recently, however, more objective sources investigated the reliability of alcohol breath testers and concluded they are often unreliable.

Intoxilyzer-8000-I-Make-Mistakes-300x263The Investigative Report
The objective sources are Stacy Cowley and Jessica Silver Greenberg. They are newspaper reporters who investigated breath-testing for an article in the New York Times. They interviewed more than 100 people for the investigation, including scientists, police officers, lawyers and executives. They also reviewed tens of thousands of pages of documents, such as court records, corporate filings and contracts.

The investigation revealed some interesting facts. For example, in the past 12 months, more than 30,000 breath tests were thrown out. The investigation cited many defects with breath testing, including programming mistakes in software, improper calibration, and human error. What I found especially interesting was the investigation uncovered problems with portable breath-testers, evidential breath-testing devices, and one particular device which has created controversy in Ohio.

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DORA may be coming to a city near you. Not Dora the Explorer with her singing map and backpack. DORA the law which allows cities to have Designated Outdoor Refreshment Areas. In a DORA, people can walk around with open containers of alcohol purchased from local establishments. The idea behind DORAs is to spur economic development, and cities across Ohio are now implementing DORAs. Here are some facts about DORAs you may be interested to know before visiting one.

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What Is The DORA Law?
Ohio Revised Code section 4301.82 authorizes municipal corporations and townships to establish Outdoor Refreshment Areas (DORAs). The executive officer or fiscal officer must submit an application to the legislative branch of the city or township. If the legislature approves, the DORA is created. The city or township then obtains a permit from the Ohio Division of Liquor Control. Establishments then obtain ‘Outdoor Refreshment Area’ designations on their liquor permits. The law was passed in 2017, and many cities in central Ohio are now implementing DORAs, so expect to see them near you in 2020.

There are some limitations to the DORA law. Bigger cities (over 50,000 people), may create only two DORAs, and smaller cities and townships (35,000 to 50,000 people) are limited to one DORA. The maximum DORA size for those cities and townships is 320 contiguous acres or ½ square mile. Cities and townships under 35,000 residents may also create a DORA, but only if the area includes at least four establishments which are ‘qualified permit holders’, and the maximum size is 150 contiguous acres.

What Is Permitted and Prohibited In A DORA?
In a DORA, you are permitted to carry open containers of alcohol if the alcohol was purchased from an establishment with an ‘Outdoor Refreshment Area’ designation. The Ohio law essentially says that, while in a DORA, you are exempt from the Open Container law. To be exempt, however, you must follow the rules.

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You may be more of a target than you think. When you think about people arrested for drunk driving, do you picture a car driving erratically all over the road? That’s a common misconception. Most stops resulting in DUI/OVI charges are for minor offenses: failing to signal, driving a little over the speed limit, crossing a lane line one time. Some are even for non-moving violations: burned-out headlight, no license plate light, expired registration. A case decided last week by the Ohio Supreme Court illustrates how a minor violation can lead to more serious charges.

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Is That Vehicle Black Or White?
The case is State v. Hawkins. Hawkins drove past a police officer, and the officer ran the vehicle’s plate. It was registered to a white 2001 GMC SUV, but it was on a black 2001 GMC SUV. The officer stopped Hawkins and asked for identification. Hawkins did not have identification but provided his name, date of birth, and social security number. In the meantime, the officer verified the vehicle’s identification number matched the number registered with the Ohio B.M.V.

The officer learned there was an active arrest warrant for Hawkins and informed Hawkins of this. Hawkins sped away, crashed the vehicle, and fled on foot. The officer apprehended Hawkins and charged him with Failing to Comply with the Order or Signal of a Police Officer. Hawkins was found guilty of the charge and appealed his conviction to the 12th District Court of Appeals. The 12th District affirmed the conviction, and Hawkins appealed to the Ohio Supreme Court.

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How to improve litigation skills which lead to more acquittals (not guilty verdicts) in DUI/OVI cases can be a mystery. That’s why there are organizations like the National College for DUI Defense (NCDD) and the National Association of Criminal Defense Lawyers (NACDL). Those organizations co-host an annual DUI defense seminar in Las Vegas, and the theme of this year’s seminar was “Solving The Mystery of DUI Acquittals”. I attended the seminar, as I have for over 15 years, and took away valuable insights.

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Day One: Retrograde Extrapolation & Cross Examination
On the first day of the seminar, there were two presentations which stood out to me. The first was Joseph St. Louis’ discussion of retrograde extrapolation. St. Louis is a DUI lawyer in Tuscon and a regent for the NCDD. After teaching how alcohol is absorbed, distributed and eliminated, he explained retrograde extrapolation. Retrograde extrapolation is the act of calculating a person’s blood alcohol concentration (BAC) at a previous time based on the BAC at a later time. St. Louis highlighted articles from scientific journals concluding retrograde extrapolation is a dubious practice due to all of the possible variables in the calculation, most of which are unknown to the person completing the calculation.

Retrograde extrapolation is important in Ohio because our OVI law prohibits operating a vehicle if, at the time of operation, the driver is under the influence or ‘over the limit’. In an OVI trial, the prosecution introduces the result of a blood/breath/urine test, and that test may be done up to three hours after operation of the vehicle. That test result is circumstantial evidence of the BAC at the time the defendant operated the vehicle. However, an expert witness can testify the BAC at the time of operation cannot be calculated with certainty: there is, in fact, a wide range of possible BACs, including BACs ‘under the limit’.

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The consequences of an OVI/DUI conviction can go well beyond the fines, jail time, and license suspensions imposed by a Judge. Collateral effects like higher insurance premiums and lost employment opportunities can follow someone well after their case has been resolved in court. Some states, even notoriously tough-on-crime states like Texas, allow first-time OVI/DUI offenders to avoid the long term consequences of a conviction by completing a pretrial diversion program.

Get-out-of-jail-and-uncle-sam-300x224What is Diversion?
The general idea of diversion is that first offenders should be given an opportunity to learn from their mistakes and correct the underlying causes of their criminal offense without the stigma of a conviction. If an applicant meets the entry requirements, typically meaning the person has no prior criminal history and is charged with a qualifying offense, the applicant can be accepted into a diversion program. These programs typically require the participant to complete counseling and/or educational courses, perform community service, attend regular meetings with a probation/diversion officer, and maintain a clean criminal record for the duration of the program.

Many jurisdictions have diversion programs, covering a variety of offenses. The specifics of the programs vary depending on the jurisdiction and the offense. For example, the Texas program allows first-time DUI offenders with otherwise clean records to complete a year of probation supervision which includes monthly meetings, community service, drug/alcohol counseling, and the installation of an ignition interlock device on their vehicles. Successful completion of this year-long program results in the DUI charges being dismissed, which means they are able to move forward without a conviction on their record.

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The ever-growing number of states which have legalized either medical marijuana or recreational marijuana has created a number of issues for law enforcement and the justice system. Chief among those issues is the challenge of enforcing laws against operating a vehicle under the influence of marijuana. In an effort to overcome this challenge, the Norwegian company Drauger developed the DrugTest 5000. This system uses a mouth swab, taken roadside, to help determine if a driver is under the influence of marijuana or other drugs. The DrugTest 5000 has been in use in Norway since 2015 and has seen growing use in the United States. This test, however, is probably not the solution for law enforcement’s problems.

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Specific Problems With The Roadside Marijauana Test
While many hope the DrugTest 5000 will be to drugged driving what a breath test is to drunk driving, there are reasons to be skeptical. The first is the DrugTest 5000 can only detect the presence of drugs in a sample, not the amount. This means the DrugTest 5000 operates like a breath testing machine that can’t differentiate between a driver who had one beer and a driver who had 12.

The second reason to be skeptical is found in a 2018 joint study between the Oslo University Hospital and the Norwegian Mobile Police Service. The researchers found the DrugTest 5000 isn’t able to accurately identify drugs in a driver’s saliva. Over the course of the study, the DrugTest 5000 was found to have a false positive result for THC 14.5% of the time and a false negative result 13.4% of the time.

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If you think about the consequences of getting a DUI (called OVI in Ohio), the first thing which comes to mind is probably the sentence from the court. There is good reason for that: the sentence includes a mandatory jail term, license suspension, and fine as well as possible yellow plates, ignition interlock, and probation. In addition to the sentence imposed by the judge, however, there are collateral consequences for DUI/OVI convictions. One of those consequences is skyrocketing auto insurance premiums.

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How Are Insurance Premiums Calculated?
Auto insurance premiums are determined by what an insurance company expects to be the amount of risk associated with a particular driver and car. There are many factors which affect the cost of auto insurance. Those factors include the type and age of the car, how far and frequently the vehicle is driven, and the state in which the vehicle is used. Other factors are the driver’s age, gender, marital status, credit history, and driving history.

 

Why Does A DUI/OVI Affect Premiums?
With regard to driving history, one of the most expensive entries in a driving record is a conviction for DUI/OVI. Studies show that DUI/OVI is a risky driving behavior which leads to more crashes than practically any other driving behavior. In addition, insurance companies conclude that a person who engaged in that risky behavior is likely to repeat it in the future.

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Some people can’t resist. After having drinks, they get a craving, and they have to satisfy it. For some, it’s tacos or wings. For others, it’s burgers and fries. It’s typically not broccoli and kale. And then they go to a drive-thru when perhaps they shouldn’t be driving, and they end-up arrested for DUI/OVI. Two recent news-making DUI arrests demonstrate the danger of caving to cravings and driving-thru instead of staying home.

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It Happens At The Drive-Thru
In the first case, former NFL running back Darren McFadden was reportedly found asleep in the drive-thru of a Whataburger in Texas. Police were called to the scene, and McFadden allegedly resisted their attempts to apprehend him. Strangely, after being uncooperative, he consented to a chemical test, and the result showed a blood alcohol concentration of .15 or greater. He now faces charges of DUI and resisting arrest, which means a possible sentence of two years in jail.

In the second case, Pennsylvania state representative John Galloway allegedly was involved in a two-car accident in a McDonald’s drive-thru. Swartara Township police officers investigated the accident and found Galloway was at fault. They also found he appeared to be under the influence, so they gave him a BAC test. The result of the test was a blood alcohol concentration of .13 (the ‘legal limit’ is .08).

It Happens Fairly Frequently
At the Dominy Law Firm, we have represented numerous clients who were arrested at drive-thrus or had recently left a drive-thru. Some of those clients were on their way home, but many were at home and decided to leave for a fast food fix. A few have been during the day, but the vast majority are late at night.

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As discussed previously in this space, we have been eagerly awaiting the Supreme Court’s decision in Mitchell v. Wisconsin. The Court set out to determine whether Wisconsin’s Implied Consent statute requires police to obtain a search warrant before getting a blood sample from an unconscious DUI suspect. The state of Wisconsin argued that Mitchell, through the state’s Implied Consent statute, had already consented to the blood draw, thereby removing the requirement for a warrant. Alternatively, they argued this should simply be viewed as an exercise of the State’s power to imposes conditions on a person’s privilege to operate a vehicle on Wisconsin’s roads.

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In a 5-4 plurality decision, the Supreme Court disregarded both of these arguments and held the warrantless blood draw from an unconscious DUI suspect typically falls within the ‘exigent circumstances’ exception to the Fourth Amendment’s warrant requirement, so a search warrant is typically not required.

The Court’s Plurality Decision
Justice Alito wrote the opinion for himself, Chief Justice Roberts, Justice Breyer and Justice Kavanaugh. The opinion first acknowledges that the Court held in the past the dissipation of alcohol in blood does not, in and of itself, trigger the exigent circumstances exception, so a search warrant is typically necessary for a blood test. However, the opinion then states the presence of other factors could put additional time constraints on the police. Based on this logic, Justice Alito created a new two-prong test to determine if a blood draw from a DUI suspect would fall within the exigency exception:

1) The alcohol in the suspect’s blood is dissipating; and
2) Some other factors create pressing health, safety, or law enforcement needs that take priority over a search warrant application.

The court also determined that, if a defendant shows their blood would not have been drawn but for the police collecting BAC evidence, the exigent circumstances exception would no longer apply, so a search warrant would be required. Because Mitchell was never able to make such a showing, the Court remanded the case back to Wisconsin state court to apply this new two-part test.

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After having an office on Polaris Parkway for several years, the Dominy Law Firm has relocated. Our new office is off Route 315 just north of 270: near Hills Market and the bike trail. The new location is perfect for serving clients with OVI / DUI cases in Columbus, Delaware and courts throughout central Ohio. Our new address is:

7716 Rivers Edge Drive, Suite B  Columbus, OH 43235

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