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Court News Ohio
Court Clarifies
Standards for Admitting Blood Test Evidence in OVI Cases
By Dan Trevas
February 10, 2016
The state must substantially comply with Ohio Department of Health
regulations requiring refrigeration of blood in a prosecution for
operating a motor vehicle while under the influence of alcohol (OVI),
the Ohio Supreme Court ruled today. The Supreme Court remanded the
matter to allow the accused an opportunity to demonstrate that the
failure to refrigerate the blood sample for more than four hours caused
the test results to be unreliable.
In a majority opinion authored by Justice Terrence O’Donnell, the Court
reversed trial and appellate court decisions that ruled that because
the state did not strictly comply with the refrigeration requirement,
the sample could not be used against Michael D. Baker in connection
with a 2011 OVI charge that arose from accident that killed a
pedestrian. Citing two prior Supreme Court rulings, the Court explained
that a blood sample left unrefrigerated for up to five hours
substantially complies with a Department of Health rule requiring a
blood sample to be refrigerated when it is not in transit to a lab or
under examination. In a separate concurring opinion, Chief Justice
Maureen O’Connor urged the Department of Health to revise the
regulation and provide more guidance regarding the purpose of
refrigeration and the effects non-refrigeration has on the reliability
of bodily fluid specimens.
Trooper Kept Sample In Cruiser
On March 6, 2011, Ohio State Highway Patrol Trooper Charles Emery
responded to an accident involving a pedestrian who had been walking
along U.S. Route 6 in Ashtabula County and was struck by a vehicle and
died. Emery arrived at the scene around 12:30 a.m. and identified Baker
as the driver of the vehicle. Baker admitted he had consumed six or
seven beers that evening and consented to a blood test. A sample was
taken at a hospital at 1:50 a.m. and given to Emery, who drove Baker
home and then went to the highway patrol post to finish paperwork.
Instead of refrigerating the sample, he kept it in his cruiser until
his shift ended at 6 a.m., when he mailed it to the crime laboratory in
Columbus for testing.
The results of the test indicated that Baker’s blood alcohol level was
.095. Baker pled not guilty in county court to a first-degree
misdemeanor charge of violating R.C. 4511.19(A)(1)(b) and moved to
suppress the evidence from the test of his alcohol level. He argued
that the four hours and 10 minutes of non-refrigeration failed to
comply with Ohio Admin. Code 3701-53-05(F). The trial court agreed and
suppressed the results of the blood test.
On appeal in a split decision, the Eleventh District Court of Appeals
upheld the suppression of the evidence. However, the two judges in the
majority disagreed on the consequence of violating the regulation; one
judge opined that the failure to substantially comply with the rule
rendered the blood alcohol test inadmissible, while the other concluded
that the violation put the burden on the state to prove the
blood-test’s reliability at a hearing before it could be admitted at
trial. The third jurist dissented and would have held the state did not
violate the regulation. The state appealed, and the Supreme Court
agreed to hear the case.
Refrigeration Requirement
Justice O’Donnell noted that the Ohio legislature directed that in
criminal prosecutions for OVI, bodily substances shall be analyzed in
accordance with methods approved by the director of health, who
promulgated Ohio Adm.Code 3701-53-05(F): “While not in transit or under
examination, all blood and urine specimens shall be
refrigerated.” Justice O’Donnell explained that this regulation
“is patently clear about what is required when the state decides to
obtain a blood or urine sample from persons in this state.”
While noting that strict compliance with the refrigeration rule is
preferable, the Court recognized logistical issues of gathering and
submitting samples may make strict compliance unrealistic. Justice
O’Donnell citedState v. Plummer, where the Court in 1986 held that the
failure to refrigerate a urine sample for four hours did not render the
test results inadmissible. And in State v. Mayl, a 2005 decision that
cited Plummer, the Court determined that the failure to refrigerate a
blood sample for as many as five hours substantially complied with the
refrigeration requirement, permitting the sample to be used as evidence.
Based on that precedent Justice O’Donnell stated the failure to
refrigerate Baker’s specimen for four hours and 10 minutes
substantially complied with the rule and did not make the test results
inadmissible per se.
Procedure for Determining Admissibility of Specimen Samples
Justice O’Donnell clarified the procedure for admitting blood-alcohol
test results into evidence as established in the Court’s 2003 State v.
Burnside decision. To challenge a test result, he explained, the
accused must first challenge its validity by seeking to suppress the
evidence before trial begins. At that point, it becomes the
responsibility of the state to demonstrate it substantially complied
with the administrative rule. And, if the state proves substantial
compliance, the burden then shifts back to the accused to show the
failure to strictly comply made the test unreliable and prejudicial.
“Here the state demonstrated substantial compliance, but Baker has not
been given the opportunity to rebut the presumption of admissibility,”
Justice O’Donnell wrote.
The Court therefore remanded the case to the trial court for further
proceedings.
Justices Paul E. Pfeifer, Sharon L. Kennedy, and Judith L. French
concurred in the opinion.
More Clarity from Health Department Needed, Chief Justice States
In a separate concurring opinion, Chief Justice O’Connor cautioned
against adopting a “court-made” rule that failing to refrigerate a
specimen for four or five hours is substantial compliance. She called
the decision “an opportunity to focus on the shortcomings” of the
current administrative rule.
She noted that one Ohio appeals court has ruled that not refrigerating
a sample for up to 19 hours was a minor error while another has ruled
that a 12-hour lack of refrigeration was a significant error.
“The variance among these decisions illustrates the difficulty for
courts in applying a vague substantial-compliance standard,” she wrote.
Because the General Assembly directed the Department of Health to
develop the regulations for ensuring the reliability of
blood-alcohol-test results, the Chief Justice states that guidance from
the department about the purpose of refrigeration and the effect on the
reliability of the test will provide clarity. Right now it is “unclear
what conditions the regulation is intended to ensure by requiring
refrigeration,” she wrote.
A former version of the rule required the sample be kept below 42
degrees, but that is no longer included, and there is no requirement
for the sample to be refrigerated when it is in transit even if it
takes days or weeks, she noted.
“The key to obtaining clarity regarding substantial compliance resides
with the director of health and his or her scientific expertise rather
than with the courts,” she wrote.
Justice Judith Ann Lanzinger concurred in the Chief Justice’s opinion.
Rule Cannot Be Ignored
In a dissenting opinion, Justice William M. O’Neill acknowledge that
strict compliance is not always realistic or humanly possible, but
wrote the majority decision makes the substantial compliance standard
too low for such serious cases. He stated the decision allows for the
rule to be ignored.
“One man lies dead and another man faces a lengthy prison term if
convicted of drunk driving. This is no time to be treating the rules
regarding admissibility of evidence lightly,” he wrote.
Justice O’Neill wrote it is “outrageous that the General Assembly
assigned to experts the task of setting rules to ensure that accurate
test results are admitted in drunk-driving cases only to have the rules
ignored” by an Ohio State Highway Patrol trooper who stated that was
not patrol procedure.
“The courts could use some guidance in determining which procedures are
important for obtaining accurate results and which are not. But under
no circumstances is it the role of the Ohio State Highway Patrol to
decide which of these rules must be complied with,” he wrote.
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