A DUI can be charged because of alcohol or drugs in a person’s body.  The last post listed Ohio’s DUI statutory prohibitions against certain levels of alcohol in the body.  In this post we see the prohibition against certain levels of drugs in the system.

ORC 4511.19 states teh following:

(j) Except as provided in division (K) of this section, the person has a concentration of any of the following controlled substances or metabolites of a controlled substance in the person’s whole blood, blood serum or plasma, or urine that equals or exceeds any of the following:

(i) The person has a concentration of amphetamine in the person’s urine of at least five hundred nanograms of amphetamine per milliliter of the person’s urine or has a concentration of amphetamine in the person’s whole blood or blood serum or plasma of at least one hundred nanograms of amphetamine per milliliter of the person’s whole blood or blood serum or plasma.

(ii) The person has a concentration of cocaine in the person’s urine of at least one hundred fifty nanograms of cocaine per milliliter of the person’s urine or has a concentration of cocaine in the person’s whole blood or blood serum or plasma of at least fifty nanograms of cocaine per milliliter of the person’s whole blood or blood serum or plasma.

(iii) The person has a concentration of cocaine metabolite in the person’s urine of at least one hundred fifty nanograms of cocaine metabolite per milliliter of the person’s urine or has a concentration of cocaine metabolite in the person’s whole blood or blood serum or plasma of at least fifty nanograms of cocaine metabolite per milliliter of the person’s whole blood or blood serum or plasma.

(iv) The person has a concentration of heroin in the person’s urine of at least two thousand nanograms of heroin per milliliter of the person’s urine or has a concentration of heroin in the person’s whole blood or blood serum or plasma of at least fifty nanograms of heroin per milliliter of the person’s whole blood or blood serum or plasma.

(v) The person has a concentration of heroin metabolite (6-monoacetyl morphine) in the person’s urine of at least ten nanograms of heroin metabolite (6-monoacetyl morphine) per milliliter of the person’s urine or has a concentration of heroin metabolite (6-monoacetyl morphine) in the person’s whole blood or blood serum or plasma of at least ten nanograms of heroin metabolite (6-monoacetyl morphine) per milliliter of the person’s whole blood or blood serum or plasma.

(vi) The person has a concentration of L.S.D. in the person’s urine of at least twenty-five nanograms of L.S.D. per milliliter of the person’s urine or a concentration of L.S.D. in the person’s whole blood or blood serum or plasma of at least ten nanograms of L.S.D. per milliliter of the person’s whole blood or blood serum or plasma.

(vii) The person has a concentration of marihuana in the person’s urine of at least ten nanograms of marihuana per milliliter of the person’s urine or has a concentration of marihuana in the person’s whole blood or blood serum or plasma of at least two nanograms of marihuana per milliliter of the person’s whole blood or blood serum or plasma.

(viii) Either of the following applies:

(I) The person is under the influence of alcohol, a drug of abuse, or a combination of them, and, as measured by gas chromatography mass spectrometry, the person has a concentration of marihuana metabolite in the person’s urine of at least fifteen nanograms of marihuana metabolite per milliliter of the person’s urine or has a concentration of marihuana metabolite in the person’s whole blood or blood serum or plasma of at least five nanograms of marihuana metabolite per milliliter of the person’s whole blood or blood serum or plasma.

(II) As measured by gas chromatography mass spectrometry, the person has a concentration of marihuana metabolite in the person’s urine of at least thirty-five nanograms of marihuana metabolite per milliliter of the person’s urine or has a concentration of marihuana metabolite in the person’s whole blood or blood serum or plasma of at least fifty nanograms of marihuana metabolite per milliliter of the person’s whole blood or blood serum or plasma.

(ix) The person has a concentration of methamphetamine in the person’s urine of at least five hundred nanograms of methamphetamine per milliliter of the person’s urine or has a concentration of methamphetamine in the person’s whole blood or blood serum or plasma of at least one hundred nanograms of methamphetamine per milliliter of the person’s whole blood or blood serum or plasma.

(x) The person has a concentration of phencyclidine in the person’s urine of at least twenty-five nanograms of phencyclidine per milliliter of the person’s urine or has a concentration of phencyclidine in the person’s whole blood or blood serum or plasma of at least ten nanograms of phencyclidine per milliliter of the person’s whole blood or blood serum or plasma.

(xi) The state board of pharmacy has adopted a rule pursuant to section 4729.041 of the Revised Code that specifies the amount of salvia divinorum and the amount of salvinorin A that constitute concentrations of salvia divinorum and salvinorin A in a person’s urine, in a person’s whole blood, or in a person’s blood serum or plasma at or above which the person is impaired for purposes of operating any vehicle, streetcar, or trackless trolley within this state, the rule is in effect, and the person has a concentration of salvia divinorum or salvinorin A of at least that amount so specified by rule in the person’s urine, in the person’s whole blood, or in the person’s blood serum or plasma.

While may other drugs can subject you to a DUI, there are relatively few with statutory prohibitions.  Remember, you will always be at risk of a DUI when drive with any drugs or any alcohol in your system.

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!

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!

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 additional defenses to blood tests in DUI cases.  This is by no means a complete list of all defenses, but intended to give people an idea that a test over is not hopeless to defend against. 

The designated laboratory director did not monitor the work performance and verify the skills of the laboratory technicians involved in the testing of the Defendant’s blood sample pursuant to O.A.C. 3701-53-06 (D) (4).

The designated laboratory director did not ensure that the procedures manual referred to the criteria the laboratory used in developing standards, controls, and calibrations for the technique or method involved in analyzing the Defendant’s sample pursuant to O.A.C. 3701-53-06 (D) (5).

The designated laboratory did not ensure that a complete and timely written procedure manual was available and followed by the laboratory technicians during the analysis of the Defendant’s blood sample pursuant to O.A.C. 3701-53-06 (D) (6).

If the designated laboratory director was replaced, another permitted laboratory director was not designated pursuant to O.A.C. 3701-53-06 (E).

The person analyzing the Defendant’s blood sample did not have a laboratory technician’s permit and was not under the general direction of a laboratory director pursuant to O.A.C. 3701-53-07 (A) (1).

The laboratory technician who analyzed the defendant’s blood did not conduct a technique or method of analysis that is listed on the laboratory director’s permit pursuant to O.A.C. 3701-53-07 (A).

The laboratory technician who analyzed the Defendant’s blood did not complete the proficiency exam, administered by a national program for proficiency testing for the approved technique or method of analysis used to test the Defendant’s blood, in a satisfactory manner, pursuant to O.A.C. 3701-53-07 (A) (2).

The designated laboratory director has not certified the laboratory technician who analyzed the Defendant’s blood as competent to perform all procedures contained in the laboratory’s written procedure manual for testing specimens, pursuant to O.A.C. 3701-53-07 (A) (2).

The laboratory technician who analyzed the Defendant’s blood did not meet the requirements as set forth in O.A.C. 3701-53-07 (A) (2) (a-d).

The Defendant’s blood sample was not analyzed in the laboratory by a person who has a laboratory director’s permit or, by a person who has a laboratory technician’s permit under the general direction of the laboratory director, pursuant to O.A.C. 3701-53-07 (E).

The person analyzing Defendant’s blood, if he/she is a laboratory technician, did not conduct a technique or method of analysis that was listed on the laboratory director’s permit, pursuant to O.A.C. 3701-53-07 (E).

The director of the laboratory where Defendant’s blood was analyzed does not meet the qualification for said laboratory director’s permit pursuant to O.A.C. 3701-53-07 (E (1).

The laboratory technician who analyzed the Defendant’s blood did not meet the qualifications for a laboratory technician’s permit as set forth in O.A.C. 3701-53-07 (E) (2).

The person analyzing the Defendant’s blood was not subject to surveys and proficiency examinations as required by O.A.C. 3701-53-08.

The person who analyzed the Defendant’s blood did not have a permit as required by O.A.C. 3701-53-09.

The enzymatic and gas chromatographic methods, used to determine the amount of alcohol in a specimen were not checked each testing day for proper calibration with solutions containing ethyl alcohol under the general direction of the designated laboratory director, pursuant to O.A.C. 3701-53-04 (D).

Need Professional Help With Your DUI arrest in Southwest Ohio 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 chemical 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 chemical tests 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.

Man Says Police Forcibly Collected Urine Sample – This was reported here in Cincinnati by WLWT.

Lawrenceburg, IN.  Sept. 3 — An Indiana man has filed a lawsuit claiming that police forcibly withdrew urine from his body during a drunken driving arrest.

According to the suit, police arrested Jamie Lockard, 53, on suspicion of drunk driving in March.

A Breathalyzer test showed he was under the legal limit, but Officer Brian Miller doubted the findings.

Lockard and his attorney claimed in the suit that police took him to Dearborn County Hospital and forced him to submit to a urine test.

Police said they obtained a warrant, but Lockard’s attorney said his client was shackled to a gurney and had a catheter inserted against his will.

“It has to be executed reasonably,” said attorney Doug Garner. “No one would say this is reasonable behavior. It’s reprehensible that anyone could think that this is appropriate.”

The test showed that Lockard’s blood-alcohol level did not exceed Indiana’s legal limit, police said.

Garner said the police officer did not apologize, but instead charged Lockard with obstruction of justice

Let’s look at the FACTS:

1) Breath Test Shows Suspect Innocent

2) Police Don’t Like Breath Test Result

3) Suspect Taken for Forced Urine Collection

4) Police Don’t Like Urine Test Result

5) Police Charge Suspect with Obstruction of Justice

Where is the Justice here?

If you need help with a DUI arrest in Cincinnati or an upcoming court appearance in Hamilton, Butler, Warren or Clermont Counties on a DUI charge, call our office at our 24 Hour Emergency Number at 513.333.0014 to get professional help.

In Ohio, if you have been arrested for a third DUI offense within a 6 year period, the police may use whatever force is necessary to collect a blood sample from you – even if you refuse.

What if the nurse, paramedic, or doctor doesn’t want to take blood from a suspect who tells them not to?  What happens if the police don’t like that response?  Here is an example from Chicago, and something like this happening in Cincinnati is not out of the question.

ER Nurse Sues Cop for Handcuffing Her During Dispute Over Drawing Suspect’s Blood, as reported by the Chicago Sun-Times

 
Chicago, IL.  Sept. 21 –A head emergency room nurse at Advocate Illinois Masonic Hospital has sued the city and a Chicago Police officer for handcuffing her and putting her in the back of a squad car during a dispute over drawing blood from a suspected drunken driver.

Lisa Hofstra said she was the “charge nurse” in the emergency room on Aug. 1 when the officer approached her at about 4 a.m. The officer requested she perform a blood work-up on a DUI suspect, the lawsuit said.

Hofstra told the officer the suspect needed to be admitted to the hospital before she could draw the person’s blood. Hofstra said she told a police lieutenant that it was the hospital’s protocol to wait until a suspect was admitted, and the lieutenant agreed, she said.

The lieutenant left the emergency room.

Then Hofstra called her supervisors, but before they could respond, the officer put her in handcuffs in front of her co-workers and escorted her to a squad car, according to the lawsuit…

She was in the car for about 45 minutes before the situation was resolved, Hofstra said. The cuffs were too tight, requiring treatment in the hospital after she was released from custody, she said.

A security video of the incident shows the officer smiling outside the squad car as Hofstra sat inside.

Hofstra said it was a major problem for her to be removed from the emergency room at a time when there were numerous patients suffering from “bad trauma.”

She was responsible for triage — the process of deciding which patients need the most urgent attention.

“If this officer is treating me the way he treated me, what is he going to do to people on the street?” Hofstra said, adding that she filed her lawsuit to “stand up for nurses.”

If you need help with a DUI arrest in Cincinnati or an upcoming court appearance in Hamilton, Butler, Warren or Clermont Counties on a DUI charge, call our office at our 24 Hour Emergency Number at 513.333.0014 to get professional help.

The Ohio Administrative Code regulates the procedure that has to be followed when blood is drawn in  DUI/OVI prosecution.  There is no separate Cincinnati DUI law that controls, only state law.  There are several steps to the process, the main ones will be covered here.

First, the blood may only be drawn by a person with the proper qualifications.  Authorized personnel include phlebotomists, nurses, and doctors.

Second, the blood must be drawn using a dry sterile needle.  Typically the blood kits used by law enforcement include a needle in them.  However, there is no requirement where the needle must come from, only that it be a dry, sterile needle.

Third, the injection site must be cleaned with a non-alcohol based, non-volatile antiseptic.  Is is very common for hospitals to use isopropyl alcohol or ChloraPrep to clean an injection site.  Neither of these are acceptable.  Obviously, isoprpyl alcohol contains alcohol, but so does the CholraPrep – in fact it contains 70% alcohol.  ChloraPrep is a common antiseptic used in hospitals.  It contains a long lasting anti-microbial (Chlorhexidine Gluconate) to prevent the injection site from becoming infected.  Neither it, nor rubbing alcohol, are acceptable antiseptics for a forensic blood draw.

Preferably, the person drawing the blood should use a Provodone iodine solution to clean the injection sit.  However, some people have iodine allergies.  If that were the case, that solution could not be used.  There is no requirement that a specific antiseptic is used.  The requirement is that the antiseptic cannot contain alcohol and cannot be volitile.

Finally, the blood must be drawn into a vaccum container containing a solid-anticoagulant.  The container must then be properly labeled, secured, and  refrigerated.

There are additional regulations for storing, testing, and transporting the blood.

If you need help with a DUI arrest in Cincinnati or an upcoming court appearance in Hamilton, Butler, Warren or Clermont Counties on a DUI charge, call our office at our 24 Hour Emergency Number at 513.333.0014 to get professional help.