Blood & Urine Tests

Forced Blood Draw In Ohio (What Happens After Missouri v. McNeeley?)

February 6th, 2014

forced blood draw

What is the status of Ohio’s forced blood draw law [R.C. 4511.191] following the decision in Missouri v. McNeeley, 2013 U.S. LEXIS 3160 (2013).

In Missouri v, McNeely, the United States Supreme Court ruled that a nonconsensual warrantless forced blood draw violates a person’s right to be free from unreasonable searches and seizures under the 4th Amendment to the Constitution. The McNeely decision raises some questions for search warrants in OVI cases. Some of the questions include (1) Did this decision invalidate the implied consent laws? and (2) Are search warrants required for every DUI arrest before a forced blood draw can be taken from a person suspected of drunk driving? First, let’s review the facts giving rise to the decision.

Facts of the Case. On October 3, 2010, at 2:08 a.m., a Missouri State Trooper stopped Tyler McNeely’s truck after observing it exceed the posted speed limit and cross the centerline three times. Upon making contact with the McNeely, the trooper observed McNeely to have bloodshot eyes, slurred speech, and a strong odor of alcohol on his breath. McNeely admitted to consuming “a couple of beers” at a bar.  Based upon these observations, the trooper asked McNeely to step out of the vehicle and immediately noticed McNeely to be unsteady on his feet. McNeely performed poorly on the field sobriety tests and declined to submit to a preliminary breath test. Based upon the trooper’s observations, the trooper placed McNeely under arrest for driving under the influence of alcohol.  While en route to the jail, the Trooper asked McNeely if he would agree to voluntarily provide a breath sample when they arrived at the jail. McNeely stated he would refuse to provide a breath sample. Based upon this statement, instead of taking McNeely to the jail, the trooper took McNeely to a nearby hospital to obtain a blood sample to secure evidence of intoxication. McNeely refused to voluntarily provide a blood sample. Consequently, the trooper directed a hospital lab technician to draw a blood sample. Although the trooper had obtained search warrants in previous drunk-driving cases, in this instance, the trooper did not seek a search warrant based upon a training session he attended where it was stated that a search warrant was no longer necessary due to a recent change to the “refusal” provision of the Missouri implied consent law.  Blood was taken from McNeely without a warrant. The trial court granted McNeely’s motion to suppress the blood evidence, holding that the warrantless blood draw violated his Fourth Amendment right. The trial court held that the natural dissipation of alcohol in the bloodstream does not constitute a sufficient exigency to justify a warrantless blood draw in a routine DUI case.

Issues for Consideration. The U.S. Supreme Court was tasked with determining whether the trial court, holding that the dissipation of alcohol in a routine DUI case does not create a per se exigency was consistent with its prior decision in Schmerber v. California384 U.S. 757 (1966).  In Schmerber, the Supreme Court affirmed the drawing of blood without a warrant or consent.  Since 1966, the enforcement of drunk driving laws has increased and many states adopted “no refusal” laws giving police the right to force blood from a defendant. See Ohio Revised Code 4511.191.

Decision and RulingThe court notes that because the invasion beneath the skin in a forced blood draw is of greater significance than searching a person’s pockets, the search incident rationale does not carry the whole day – a warrant is required. The Court pointed out that the diminishing of BAC upon the cessation of drinking is only one factor that must be considered in determining whether a warrant is required. The Court further stated that other factors, such as the procedures in place for obtaining a warrant or the availability of a magistrate judge, may affect whether the police can establish whether an exigency exists. The Court did not address the factors to be taken into account in determining the reasonableness of acting without a warrant. These factors will be developed by subsequent decisions on this issue.  The Court made a point to highlight that all 50 states have adopted implied consent laws.  While the Court concluded that a reasonable expectation of privacy against involuntary blood draws exists, granting individual’s nonconsensual (forced) blood draws protection under the Fourth Amendment, it did not invalidate the existing implied consent laws. Consequently, the ruling  requires that if a person revokes their “implied” consent, a warrant must be obtained.

How Does The Ruling Affect Ohio?  Ohio adopted a “no refusal” forced blood draw statue at R.C. 4511.191, which states, “if the person refuses to take a chemical test the officer may employ whatever reasonable means are necessary to ensure that the person submits to a chemical test of the person’s whole blood or blood serum or plasma.” [emphasis added]. Obviously, the McNeeley decision places this law in jeopardy.  When a person refuses to voluntarily submit to a chemical test for BAC, if time permits, a warrant should be obtained.  In State v. Hollis, 2013-Ohio-2586, the Fifth Appellate District was faced with an appeal of a decision from the Richland County Common Pleas Court. The case was the first forced blood draw decision following the United States Supreme Court ruling in Missouri v. McNeeley, which held “that in drunk-driving inves- tigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.  The decision of the court used the previous rules for exigent circumstances as set forth in Schmerber v. California and does not address or rely upon the McNeeley ruling.  Instead, the court (relying on Schmerber) finds that exigent circumstances existed justifying the blood draw. Defendant was constructively arrested at the hospital after wrecking his car and likely being under the influence. The blood draw at the hospital was reasonable and with exigent circumstances. The court credits that it would have taken “hours” to get a warrant.

OVI Attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in the Miami Valley and throughout Ohio and protecting you.  He has the credentials and the experience to win your case and has made himself Dayton’s choice for drunk driving defense. Contact Charles Rowland by phone at (937) 318-1384 or toll-free at 1-888-ROWLAND (888-769-5263). If you need assistance after hours, call the 24/7 DUI Hotline at (937) 776-2671.  You can have DaytonDUI at your fingertips by downloading the DaytonDUI Android App or have DaytonDUI sent directly to your mobile device by texting DaytonDUI (one word) to 50500.  Follow DaytonDUI on Facebook, @DaytonDUI on Twitter, YouTube, Tumblr, Pheed and Pintrest or get RSS of the Ohio DUI blog.  You can emailCharlesRowland@DaytonDUI.com or visit his office at 2190 Gateway Dr., Fairborn, Ohio 45324.  “All I do is DUI defense.”

Ohio forced blood draw information and other city-specific info at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburgSpringboro,Huber HeightsOakwoodBeavercreekCenterville

Case Law Update: OVI Urine Sample

November 25th, 2013

OVI urine sample

Under Ohio law, an OVI urine sample must be refrigerated while not in transit or under examination.  In State v. Schneider, 2013-Ohio-4789, the First District Court of Appeals was asked to define what “in transit” means.

At the suppression hearing, defense counsel argued that the state had failed to establish that the OVI urine sample had been refrigerated while it was not under examination or in transit as required by Ohio Adm.Code 3701-53-05(F). Defense counsel pointed to the evidence that the trooper had not refrigerated the specimen between its collection at 3:15 a.m., and its mailing at 10:00 p.m., a period of 18 hours and 45 minutes. Following a hearing, the trial court granted the motion to suppress the results of the alcohol analysis on Schneider’s urine specimen. The prosecutor appealed arguing that the trial court erred by suppressing the urine-test results.

Ohio Adm.Code 3701-53-05(F), provides: “While not in transit or under examination, all blood and urine specimens shall be refrigerated.” The regulation does not define “in transit” or set forth any time limitation for an OVI urine sample to be in transit, or to be unrefrigerated, for that matter. In general, Ohio courts agree that an OVI urine sample or blood specimen is “in transit” for purposes of Ohio Adm.Code 3701-53-05(F) for at least the time that it is placed in the mail until the time that it is received by the testing facility, even if the mailing process itself takes several days. For example, in State v. Hurst, 4th Dist. Washington No. 08CA43, 2009- Ohio-3127, the Fourth Appellate District rejected the appellant’s argument that the police should not have mailed an OVI urine sample on a Friday, thereby causing the OVI urine sample to go unrefrigerated until the crime lab received it the following Monday. See State v. Cook, 82 Ohio App.3d 619, 612 N.E.2d 1272 (12th Dist.1992) (OVI urine sample was “in transit” for the three-day period from the time it was mailed until the lab received it); State v. Cook, 5th Dist. Stark No. CA-8708, 1992 Ohio App. LEXIS 4022 (Aug. 3, 1992) (blood specimen was “in transit” for the three days it was in the mail). In one instance, a court held that the state had substantially complied with the regulation where an OVI urine sample was unrefrigerated for the seven and one-half days that it was in the mail. See State v. Partin, 12th Dist. Warren No. CA2010-04-040, 2011-Ohio-794. In another case, State v. Mullins, 4th Dist. Ross No. 12CA3350, 2013-Ohio-2688, the state limited itself to a narrow definition of the term when it stipulated that the defendant’s urine sample “was not placed in the mail (transit)” until 12 hours had passed from the time that the sample had been taken.

In State v. Plummer, 22 Ohio St.3d 292, 294, 490 N.E.2d 902 (1986), the Ohio Supreme Court recognized that strict compliance with DOH regulations “is not always realistically or humanly possible.” The court said that “there is leeway for substantial, though not literal, compliance with such regulations.” Id. The court later limited the Plummer substantial-compliance standard to excusing errors that are “clearly de minimis,” or that are “minor procedural deviations.” See Burnside at ¶ 34.  In this case, the trial court determined that Schneider’s OVI urine sample “was not in transit as long as the officer is holding it.”

The First District reversed holding that Ohio Adm.Code 3701-53-05(F) contains no such limiting language. Nor does the regulation limit the term “in transit” to mean “in the mail.” They stated, in pertinent part,

We do not believe that the term “in transit” as used in Ohio Adm.Code 3701- 53-05(F) is so narrow as to include only the time that a blood or urine specimen is in the mail. Certainly the regulation contemplates other modes of transportation, as well as reasonable periods of time that a specimen is unrefrigerated. To read the term “in transit” to mean “in the mail” would not have allowed for the trooper to transport the unrefrigerated specimen from the Cincinnati district to his patrol post, or even from his post to the post office. Moreover, it is undisputed that a specimen is generally not refrigerated while in the mail; thus, the delay in mailing Schneider’s specimen was inconsequential, and a minor deviation from the requirements of the regulation.  Therefore, we hold that the trial court erred by finding that the state did not demonstrate substantial compliance with Ohio Adm.Code 3701-53-05(F). Moreover, because the trial court determined that Schneider had suffered no prejudice as a result of the lack of strict compliance, we hold that the trial court erred by suppressing the results of the urine-alcohol testing.

It would appear that, without a showing of prejudice, the police will be given no restrictions under the Ohio Administrative Code.  Like in other OVI cases, the language of the statute is not strictly construed against the state, but read in an expansive way to allow more convictions under the law.

Attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in the Miami Valley and throughout Ohio.  He has the credentials and the experience to win your case and has made himself Dayton’s choice for drunk driving defense. Contact Charles Rowland by phone at (937) 318-1384 or toll-free at 1-888-ROWLAND (888-769-5263). If you need assistance after hours, call the 24/7 DUI Hotline at (937) 776-2671.  You can have DaytonDUI at your fingertips by downloading the DaytonDUI Android App or have DaytonDUI sent directly to your mobile device by texting DaytonDUI (one word) to 50500.  Follow DaytonDUI on Facebook, @DaytonDUI on Twitter, YouTube, Tumblr, Pheed and Pintrest or get RSS of the Ohio DUI blog.  You can email CharlesRowland@DaytonDUI.com or visit his office at 2190 Gateway Dr., Fairborn, Ohio 45324.  “All I do is DUI defense.”

 Find information on OVI urine sample and scientific evidence on this blog, or check these city-specific sites at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburgSpringboro,Huber HeightsOakwoodBeavercreekCenterville

DUI Science: Gas Chromatography

October 14th, 2013

gas chromatography

Gas chromatography mass spectrometry (hereinafter GCMS) is the most reliable method for alcohol testing in blood and urine and has become the accepted gold standard in forensic toxicology.  Gas chromatography specificity for ethanol (drinking alcohol) is very good and this method can also identify and quantify other organic or interfering substances such as methanol and isopropanol. The two commonly used techniques for analyzing the gases are “direct injection” and “headspace analysis.”  The devise works by utilizing a flow-through tube known as the column.  The different chemicals in the sample pass via a gas stream at different rates depending on their interaction with the column’s filling.  As the chemicals exit the end of the column they are detected and electronically identified.In Ohio, the Director of Health adopts Administrative rules which govern analytical testing for evidential use.  The Ohio rules for collection of blood specimens are set forth at Ohio Administrative Code.  Ohio Administrative Code 3701-53-03(A) sets forth the techniques and methods for determining the concentration of alcohol in blood, urine and other bodily substances.

Gas chromatography mass spectrometry is a method that combines the features of gas-liquid chromatography and mass spectrometry to identify different substances within a test sample.  GC-MS has been widely heralded as a “gold standard” for forensic substance identification because it is used to perform a specific test.  The GCMS instrument is made up of two parts. The gas chromatography (GC) portion separates the chemical mixture into pulses of pure chemicals and the mass spectrometer (MS) identifies and quantifies the chemicals.  The GC separates chemicals based on their volatility, or ease with which they evaporate into a gas. It is similar to a running race where a group of people begin at the starting line, but as the race proceeds, the runners separate based on their speed. The chemicals in the mixture separate based on their volatility. In general, small molecules travel more quickly than larger molecules.  The MS is used to identify chemicals based on their structure.

In order to successfully defend a blood test case, an OVI defense lawyer must be familiar with gas chromatography and mass spectrometry and Ohio’s OVI law (O.R.C. 4511.19) and the Ohio Administrative Code sections which apply to the collection, storing, transporting and testing of the whole blood, blood plasma and/or blood serum specimen.  Amphetamine, cocaine, heroine, Marijuana, Methamphetamine, Phencyclidine and L.S.D. are specifically mentioned in Ohio’s OVI statute as illegal controlled substances. The law states how much of each substance must be detected in a chemical test of urine, whole blood, blood plasma, and/or blood serum in order to sustain a charge.  A blood test is seen as the most accurate and reliable method of testing but is the most invasive.  The blood test is increasingly favored by law enforcement officers because it allows them to expand the parameters of their suspicion to include illicit and prescription drugs. Sometimes the blood test will be requested after a breath test produces a result under the .08% BAC limit.  If this is the case, your attorney should employ more traditional factual defenses such as a lack of probable cause to suspect drug use before leaping to a more scientific challenge to the collection, storage, transporting or testing of the blood sample.  If the facts support a blood test then your attorney must hold the State to its proof.

Charles M. Rowland II, DaytonDUI, is a member of the National College for DUI Defense and has attended the National Mastering Scientific Evidence seminar on multiple occasions.  He is the only attorney in Ohio to hold a certificate in Forensic Sobriety Assessment.  His commitment to understanding and winning through the use of science has made him the Miami Valley’s choice for DUI Defense. For the last seven years, Charles has focused exclusively on the complex field of DUI defense. Charles has spoken and written about DUI and is the only attorney in Ohio to hold a Forensic Sobriety Assessment certification.  Don’t you want an attorney who will defend you with the same “by any means necessary” mentality that Ohio has adopted with which to secure your conviction?

Attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in the Miami Valley and throughout Ohio.  He has the credentials and the experience to win your case and has made himself Dayton’s choice for drunk driving defense. Contact Charles Rowland by phone at (937) 318-1384 or toll-free at 1-888-ROWLAND (888-769-5263). If you need assistance after hours, call the 24/7 DUI Hotline at (937) 776-2671.  You can have DaytonDUI at your fingertips by downloading the DaytonDUI Android App or have DaytonDUI sent directly to your mobile device by texting DaytonDUI (one word) to 50500.  Follow DaytonDUI on Facebook, @DaytonDUI on Twitter, YouTube, Tumblr, Pheed and Pintrest or get RSS of the Ohio DUI blog.  You can email CharlesRowland@DaytonDUI.com or visit his office at 2190 Gateway Dr., Fairborn, Ohio 45324.  “All I do is DUI defense.”

 Find information on gas chromatography and mass spectrometry and other city-specific info at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburgSpringboro,Huber HeightsOakwoodBeavercreekCenterville

 

Defending Your DUI: The Gastric Bypass Defense

September 18th, 2013

gastric bypassGastric bypass surgery (also called bariatric surgery) is a procedure that drastically reduces the size of the stomach which has a dramatic effect when consuming alcohol.  Gastric bypass surgery results in alcohol moving much more quickly from the stomach into the small intestine.  80% of alcohol is absorbed in the small intestine, this surgery results in a much higher peak BAC than with the equivalent amount of alcohol consumed before the surgery.  Due to these anatomical and physiological changes, drinking after gastric bypass surgery is similar to drinking on an empty stomach, but creates an even higher peak BAC because there is almost no opportunity for the alcohol to begin to break down before entering the bloodstream.  Some experts say that a better comparison would be to equate gastric bypass alcohol consumption with direct intravenous introduction.

Another factor involves how the alcohol is metabolized.  When alcohol is consumed approximately 20% of the initial metabolization occurs in the stomach.  The stomach produced gastric alcohol dehydrogenase which acts to “break down” the alcohol before it moves on to the small intestines.  “According to one study, alcohol metabolism was significantly different between the bypass patients and the control group who had no stomach surgery.  The bypass patients had a greater peak alcohol level, and it also took them longer to reach zero or no alcohol.  The difference in peak BAC is significant.  The bypass patients were at .08 or unlawful when the control group only had a BAC of just .05.2  This is a nearly 40% difference!” See Barone, Alcohol Metabolism Changes Considerably After Gastric Bypass Surgery.

According to the results of a new study in the February issue of the Journal of the American College of Surgeons, the dramatic changes that occur as a result of gastric bypass surgery can cause some people to overindulge when using alcohol thereby increasing their risk for a DUI. In effect, they exchange the vice of over-eating with the vice of over-indulging in alcohol.  As cited at by Science Daily (linked HERE):

Studies have shown that gastric bypass patients often find it difficult adjusting to physical and psychological changes after the procedure. An increased risk of depression, alcoholism, and other substance abuse issues for this patient population led researchers to take a more in-depth look at how these patients metabolize alcohol after the procedure.  The results of this unique demonstration of alcohol metabolism changes in gastric bypass patients showed that patients who underwent a Roux-en-Y gastric bypass (RYGB) operation had considerably higher breath alcohol content (BAC) and took significantly more time to return to a sober state after drinking, compared with BAC levels tested prior to having their procedure.

The studies demonstrated that peak BAC after drinking five ounces of alcohol were greatly increased after the operation. “BAC was 0.024 percent at pre-operation and 0.059 percent (p = 0.0003) at three months. Tested again at six months post-operation, the patients’ BAC was 0.088 percent (p = 0.0008) which is more than the legal driving limit of .08 percent.” Id. Obviously, if a person who has had gastric bypass (also called bariatric surgery) decides to drink they should take their body changes into account prior to finding themselves in a position where they drive an automobile.  In 2011, the American College of Surgeons issued a press release reporting that patients who underwent a Roux-en-Y gastric bypass (RYGB) operation had a considerably higher breath alcohol content based on the same amount of alcohol consumed prior to the operation.  Moreover, these patients took significantly more time to return to a sober state after the operation compared with alcohol levels tested prior to having the procedure.

At DaytonDUI we work tirelessly to stay on top of any scientific trends which can help us defend our clients.  OVI Attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in the Miami Valley and throughout Ohio.  He has the credentials and the experience to win your case and has made himself Dayton’s choice for drunk driving defense. Contact Charles Rowland by phone at (937) 318-1384 or toll-free at 1-888-ROWLAND (888-769-5263). If you need assistance after hours, call the 24/7 DUI Hotline at (937) 776-2671.  You can have DaytonDUI at your fingertips by downloading the DaytonDUI Android App or have DaytonDUI sent directly to your mobile device by texting DaytonDUI (one word) to 50500.  Follow DaytonDUI on Facebook, @DaytonDUI on Twitter, YouTube, Tumblr, Pheed and Pintrest or get RSS of the Ohio DUI blog.  You can emailCharlesRowland@DaytonDUI.com or visit his office at 2190 Gateway Dr., Fairborn, Ohio 45324.  “All I do is DUI defense.”

 Find gastric bypass information and other city-specific info at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburgSpringboro,Huber HeightsOakwoodBeavercreekCenterville

 

DUI Science: Pharmacokinetics and Pharmacodynamics

August 26th, 2013

pharmacodynamics and pharmacokineticsPharmacokinetics and Pharmacodynamics

Defending a DUI (now called OVI in Ohio) requires an attorney to understand how the body reacts to the impairing substance (pharmacokinetics) and how the brain is affected by the substance (pharmacodynamics).  Pharmacokinetics explains the absorption, distribution and elimination of the drug.  Pharmacodynamics includes the action of the drug on the brain, pharmacologic effects and toxicity. [Holford, N., Chapter 3: Pharmacokinetics and Pharmacodynamics: Rational Dosing and the Time Course of Drug Action, in B. Katzung, Editor, McGraw Hill, Eighth Edition, 2001, p. 36].  Pharmacokinetics and pharmacodynamics are explained in this short introductory video.

Charles M. Rowland II has attended the National College for DUI Defense intensive “Mastering Science” class in New Orleans and is Ohio’s only Forensic Sobriety Assessment certified attorney.  He uses science to help win your DUI case.  DUI Attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in the Miami Valley and throughout Ohio.  He has the credentials and the experience to win your case and has made himself Dayton’s choice for drunk driving defense. Contact Charles Rowland by phone at (937) 318-1384 or toll-free at 1-888-ROWLAND (888-769-5263). If you need assistance after hours, call the 24/7 DUI Hotline at (937) 776-2671.  You can have DaytonDUI at your fingertips by downloading the DaytonDUI Android App or have DaytonDUI sent directly to your mobile device by texting DaytonDUI (one word) to 50500.  Follow DaytonDUI on Facebook, @DaytonDUI on Twitter, YouTube, Tumblr, Pheed and Pintrest or get RSS of the Ohio DUI blog.  You can emailCharlesRowland@DaytonDUI.com or visit his office at 2190 Gateway Dr., Fairborn, Ohio 45324.  “All I do is DUI defense.”

 Find city-specific Ohio DUI information about teachers and OVI in specific cities, please follow these links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburgSpringboro,Huber HeightsOakwoodBeavercreekCenterville