The term legal limit will make most DUI lawyers cringe.  This is because there is no legal amount of alcohol to have in the body and drive.

Below, the (A)(1)(a) section says that if the officer believes you are under the influence of alcohol he can charge you with a DUI no matter what level of alcohol is in your system.  There are, however, many prohibited amounts of alcohol listed in the statute depending on how they test you:

4511.19 Operating vehicle under the influence of alcohol or drugs – OVI.   

(A)(1) No person shall operate any vehicle, streetcar, or trackless trolley within this state, if, at the time of the operation, any of the following apply: (a) The person is under the influence of alcohol, a drug of abuse, or a combination of them.

(b) The person has a concentration of eight-hundredths of one per cent or more but less than seventeen-hundredths of one per cent by weight per unit volume of alcohol in the person’s whole blood.

(c) The person has a concentration of ninety-six-thousandths of one per cent or more but less than two hundred four-thousandths of one per cent by weight per unit volume of alcohol in the person’s blood serum or plasma.

(d) The person has a concentration of eight-hundredths of one gram or more but less than seventeen-hundredths of one gram by weight of alcohol per two hundred ten liters of the person’s breath.

(e) The person has a concentration of eleven-hundredths of one gram or more but less than two hundred thirty-eight-thousandths of one gram by weight of alcohol per one hundred milliliters of the person’s urine.

(f) The person has a concentration of seventeen-hundredths of one per cent or more by weight per unit volume of alcohol in the person’s whole blood.

(g) The person has a concentration of two hundred four-thousandths of one per cent or more by weight per unit volume of alcohol in the person’s blood serum or plasma.

(h) The person has a concentration of seventeen-hundredths of one gram or more by weight of alcohol per two hundred ten liters of the person’s breath.

(i) The person has a concentration of two hundred thirty-eight-thousandths of one gram or more by weight of alcohol per one hundred milliliters of the person’s urine.

And remember, if you or a family member has been arrested for DUI in the Cincinnati Area – including: Hamilton, Butler, Warren, Clermont, Montgomery, and Greene Counties - call me, ROBERT HEALEY, or one of my associates at 513.333.0014.  We are available 24-hours a day, 7 days a week.  Because now is the perfect time to put a team that includes a FORMER POLICE OFFICER and TWO FORMER PROSECUTORS to work….for you!

A first offense DUI in Ohio has the following penalties:

ALS (Administative License Suspension) for test refusal = one year license suspension.  ALS for a prohibited BAC (Blood Alcohol Content) = 90 day license suspension.

Jail – Minimum of three consecutive days or 3-day driver intervention program.  Fine – Minimum $375 and not more than $1,075.

Court License Suspension – 6 months to 3 years, ignition interlock device may be ordered by the Court.  Up to 5 years on probation. 

If there was a high tier BAC result, an additional 3 days in jail and restricted license plates.  These are very serious penalties.

And remember, if you or a family member has been arrested for DUI in the Cincinnati Area – including: Hamilton, Butler, Warren, Clermont, Montgomery, and Greene Counties - give our office a call at 513.333.0014.  We are available 24-hours a day, 7 days a week.  Because now is the perfect time to put a team that includes a FORMER POLICE OFFICER and TWO FORMER PROSECUTORS to work….for you!

My client’s are often confused about what it means to have one drink.  They are really confused when that one or two drinks causes them to test over the prohibited level in Ohio of 0.08 grams of alcohol per 210 liters of breath.

The CDC publishes an online FAQ about alcohol on their website, http://www.cdc.gov/alcohol/faqs.htm#4.   The following is an excerpt from that page:

What is a standard drink in the United States?  A standard drink is equal to 13.7 grams (0.6 ounces) of pure alcohol or:

12-ounces of beer.
8-ounces of malt liquor.
5-ounces of wine.
1.5-ounces or a “shot” of 80-proof distilled spirits or liquor (e.g., gin, rum, vodka, or whiskey).

A $14 “Top-shelf Deluxe” style margarita from your favorite happy hour chain will sometimes have 3 ounces of tequila (80-proof) in a Jumbo frozen martini-type glass.  This can also include lime juice and 3 ounces of orange liqueur like Triple Sec (60-proof), Curacao (80-proof), Cointreau (80-proof), or Grand Marnier (80-proof).

That is four standard “drinks.”  A 120 pound person consuming four drinks in two hours will have a blood alcohol concentration or BAC right about 0.08, the prohibited concentration of alcohol in Ohio.  A 180 pound person consuming one and a half of these deluxe drinks over two hours will have the same result.

Estimating your blood alcohol content is difficult, especially when you are confusing what it means to have one drink.  It is better to get a ride when drinking than guess about the legality of the alcohol content in your body. 

And remember, if you or a family member has been arrested for DUI in the Cincinnati Area – including: Hamilton, Butler, Warren, Clermont, Montgomery, and Greene Counties - give our office a call at 513.333.0014.  We are available 24-hours a day, 7 days a week.  Because now is the perfect time to put a team that includes a FORMER POLICE OFFICER and TWO FORMER PROSECUTORS to work….for you!

You have the choice to testify as a defendant in a criminal case.  Your lawyer will probably tell you not to.

If you just can live with yourself if you don’t get to tell your story, you can ask to testify.  Your lawyer will want to put it on the record that he advised you not to testify, but you are choosing to do so anyway.

He can ask the Judge to step off the bench and approach the court reporter with the prosecutor and tell the reporter that he has advised you not to testify.  However, you wish to exercise your right to speak in your defense and put your testimony on the record. 

On the other hand, there are some times when your lawyer will want you to testify.  For example, to explain and injury, physical condition, or illness.

You can also testify about your intention not to refusal a chemical test.  This can be done at a hearing on an appeal of the administrative license suspension. 

The fear of a defense attorney when a defendant testifies is what they might say upon cross examination by the prosecutor.  It can ruin a case that otherwise appears to be going well for the defense at a motion or trial.

Always speak to your lawyer before the hearing or trial about the pros and cons of taking the stand.  Remember that you have a right to testify, but your lawyer will be in a better position to give you advice about whether the benefits will outweigh the risks.

And remember, if you or a family member has been arrested for DUI in the Cincinnati Area – including: Hamilton, Butler, Warren, Clermont, Montgomery, and Greene Counties - give our office a call at 513.333.0014….24-hours a day, 7 days a week.  Because now is the perfect time to put a team that includes a former police officer and two former prosecutors to work….for you!

Here are some more common defenses to a charge of DUI:

Breath/blood ratio (2100:1) not proven to be your ratio; show how minor error gets multiplied 2100 times; 0.12 = 17/10,000,000th of an ounce.

Show you have abnormally low blood/breath conversion ratio through testing and expert.

 Inherent sampling variability or margin of error (e.g., 0.081 reading – state acknowledges +/- 0.03% precision problem).

You have blowing pattern irregularity.  

You have been on strict high protein diet and then introduce carbohydrates, thereby triggering auto-generated alcohol production when ketones are converted to isopropyl alcohol (or the “auto-brewery” syndrome).

 You have diabetes, are borderline diabetic or are hypoglycemic and consume alcohol in any amount, causing conversion of high acetone levels into isopropyl alcohol.

 Officer gives ALS warnings, but then goes too far by threatening dire consequences for which there is no factual basis or misstates consequences regarding possible license suspension.

 State fails to prove that results were obtained within the three hour statutorily imposed time (three hours after driving ended).

 You can prove sufficient alcohol was consumed during driving, after driving ended, or before police arrived.  

Officer gets fired, injured, indicted, retires, goes on military leave, cannot be produced in court, or moves away.

Need Professional Help With Your DUI arrest in or near Cincinnati?

 Then Contact Suhre & Associates for your FREE Consultation using the contact form to the left or call our 24 hour Emergency Number at 513 333 0014Your attorney must be familiar with the procedures utilized in administering the breath test as well as the procedures used to maintain and calibrate the testing equipment. At Suhre & Associates, our attorneys are familiar with the law and procedures used to calibrate the breath testing machines as well as the procedure used in administering the test to a suspect.

Here are some more common defenses to a charge of DUI:

High test result from a urine screen, yet you never urinate for three to four hours or more – physiological impossibility.  Unintentional alcohol (e.g. from Nyquil, Vicks Formula 44, lip balms, toothache drops).

Something in mouth containing alcohol (e.g. Breath Drops with SD alcohol).  Something in mouth, that contains interfering or contaminating substance (e.g. Skoal snuff – wintergreen, Altoids).

Officer fails to inform you of your right to have a second independent test.  Officer not trained or marginally trained in accordance with the standards of the Ohio Administrative Code.

Officer fails to follow manual or training protocol.  Failure to properly calibrate or maintain the machine.

Police report supports sobriety, or lack of investigation of alternative causes.  Rising blood alcohol level showing time of driving BAC would have been lower than time of testing.

Elevated breath temperature (e.g. caused by fever, hot tub, sauna, detention in hot sun or back of patrol car in summer, dancing, menstrual cycle, etc.)

Need Professional Help With Your DUI arrest in or near Cincinnati?

Then Contact Suhre & Associates for your FREE Consultation using the contact form to the left or call our 24 hour Emergency Number at 513 333 0014.  Your attorney must be familiar with the procedures utilized in administering the breath test as well as the procedures used to maintain and calibrate the testing equipment.

At Suhre & Associates, our attorneys are familiar with the law and procedures used to calibrate the breath testing machines as well as the procedure used in administering the test to a suspect.

Vomiting, belching within 20 minutes of test – no rinsing of mouth, or inadequate waiting period before retest will invalidate a breath test result.  Also certain medical conditions/health issues make the breath test inherently unreliable. They include:

a. gastric reflux, hiatal hernia or intestinal problem (e.g. Gastro Esophageal Reflux Disease, Irritated Bowel Syndrome, or Acid Reflux Syndrome) diagnosed and treated before date of arrest;

b.dental condition (e.g. gum disease/gingivitis/pockets around roots, dentures or bridgework which may trap mouth alcohol and contaminate a breath machine sample);

c.or respiratory problem (e.g. asthma, bronchitis, emphysema or chronic obstructive pulmonary disease).

 A common sense defense can also work.  For example, your behavior or actions on the video do not match test results.

 The breath test room or circuitry has a problem – Radio Frequency Interference from a cell phone, officer’s radio, copy machine or other equipment with surge capabilities. These situations may cause the machine to give artificially high reading.

Other conditions that can affect the result are smoking near the machine, shared power supply with heater or other appliance – the machines must be on a dedicated “clean” electrical circuit. Recently painted walls or trim can also interfere with the test.

You have had recent environmental exposure to volatile fumes (lacquer, gasoline, paint, dry cleaning fluids or even 409) which have cumulative tendencies, causing chemical interference/falsely elevated result.

Air bag defenses – “the Tyndall effect” – diffusion of light; propellant exposure; cut lips; lung and airway irritation and fluid build-up from caustic gas propellant.

If you need help with your DUI, Contact Suhre & Associates for your FREE Consultation using our 24 hour Emergency Number at 513 333 0014.  Your attorney must be familiar with the procedures utilized in administering the breath test as well as the procedures used to maintain and calibrate the testing equipment. At Suhre & Associates, our attorneys are familiar with the law and procedures used to calibrate the breath testing machines as well as the procedure used in administering the test to a suspect.

 O.R.C. 4511.19(D) also requires that the breath test be conducted on an approved breath-testing devise. Currently, there are three approved breath-testing devices in Ohio, BAC Datamaster, the Intoxilyzer 5000, and the Intoxilyzer 8000.

 For the test result to be admissible at trial, the machine must have been properly maintained and calibrated. The Ohio Administrative Code requires the police agency to maintain three years of records.

 A senior operator must perform the calibration of the device. In addition, the person suspected of driving under the influence must be observed for 20 minutes prior to taking the test.

This observation period is to make sure that there is not any “oral intake” by the suspect. Some very effective defenses related to the observation period may be present.

 Regarding the calibration of the machine, it must be performed no less frequently than once every seven days. If the state fails to demonstrate that the equipment was properly tested then there are clear grounds to have the test suppressed.

Another example of the calibration requirement relates to the ethyl alcohol solution used to verify the machine is within +/- .005.  

The solution used must not be older than three months from its first date of use and must be kept under refrigeration when not being used.  In the investigation of the client’s case, the attorney should ask for the batch and bottle certificate to verify compliance with the Administrative Code.

 Similar rules are set out in the Administrative Code for blood and urine testing. The attorneys at Suhre & Associates regularly request copies of all the pertinent calibration records and review them for compliance with the Administrative Code.

 Some Common Breath Test Defenses:

Insufficient or broken observation period – no continuous observation for entire 20 minutes before first breath sample.

During those 20 minutes before the test, you burp, belch or have slight regurgitation of gas that is relatively quiet.

If you need help with your DUI, Contact Suhre & Associates for your FREE Consultation using our 24 hour Emergency Number at 513 333 0014.  Your attorney must be familiar with the procedures utilized in administering the breath test as well as the procedures used to maintain and calibrate the testing equipment. At Suhre & Associates, our attorneys are familiar with the law and procedures used to calibrate the breath testing machines as well as the procedure used in administering the test to a suspect.

After a police officer arrests a suspect for DUI, they will most likely transport them back to the police station and ask them to submit to a blood, breath or urine test. In Ohio, a suspect cannot choose which test to submit to, the police have the choice.

The most common testing method is the breath test. Law enforcement prefers this test because it is convenient, the simplest to administer, and the results are available immediately.

We regularly update our case law database and receive weekly updates regarding recent court decisions that affect Cincinnati DUI defense. The Ohio Department of Health is responsible for devising the testing method for the admissibility of blood, breath, and urine tests.

 These rules are found in the Ohio Administrative Code at OAC Chapter 3701-53.  O.R.C. 4511.19(D) sets out a three-hour limitation on the collection of your blood, breath or urine.

This three-hour period begins at the time of the violation, not at the time of arrest. If the test is not conducted within the three-hour period it may be inadmissible to support a prosecution under O.R.C. 4511.19(A)(1)(b)-(i).   An important part of the attorney’s investigation will be determining the time of the alleged violation (most commonly determined by the time of the traffic stop) and comparing that to the time of the breath test.

 This defense becomes especially important in single car auto accidents where neither the police nor any witnesses saw the accident occur. It is also relevant in a multiple car auto accident because the prosecutors often fail to subpoena the necessary witnesses to prove when the accident occurred.

 Need Professional Help With Your DUI arrest in or near Cincinnati?

 Then Contact Suhre & Associates for your FREE Consultation using the contact form to the left or call our 24 hour Emergency Number at 513 333 0014Your attorney must be familiar with the procedures utilized in administering the breath test as well as the procedures used to maintain and calibrate the testing equipment. At Suhre & Associates, our attorneys are familiar with the law and procedures used to calibrate the breath testing machines as well as the procedure used in administering the test to a suspect.

If you are arrested for a Cincinnati DUI / OVI and submit to a breath test – the prosecutor now has some strong evidence against you.  In Ohio, it is illegal to operate a motor vehicle with a breath test that is .08 or greater at the time of operation. 

The law provides that as long as the breath sample is taken within three hours of operation, the prosecutor can admit that test result and it can be used without an expert witness to establish the breath test result at the time of operation.

One of the defense available is commonly referred to as reverse extrapolation.  This occurs when a breath test taken at the police station, after the operation and the defense argues that the breath test result at the time of operation was below a .08.  Or at least there is a reasonable doubt as to whether or not it was a .08 or greater.

This defense is valid and useful, but certain facts must be brought out during the trial before the argument can be made in closing.  It may be possible to use the state’s witnesses as experts or it may be necessary to call an expert witness to testify during the defense’s case.

If you or a family member have been arrested for DUI or OVI in the Greater Cincinnati area and need assistance with an upcoming court appearance in Butler, Clermont, Hamilton or Warren Counties, give us a call at our 24 Hour Emergency Number at 513.333.0014 for affordable and professional help.