Blood & Urine Tests

Alcohol And Your Body: A Primer

September 8th, 2014

alcoholAbout 20% of the alcohol (actually the impairing substance is ethanol) in your beverage is absorbed in the stomach and the remaining 80% is absorbed in the small intestine.  How fast it is absorbed is dependent on various factors.

  • The higher the percentage in the beverage, the faster the absorption;
  • Are you mixing? Carbonated beverages tend to speed up absorption;
  • Hungry? Food in your stomach slows down the absorption;

When it is absorbed it looks for the water in your blood and body.  Fat does not matter as ethanol does not dissolve in fat. The inebriating effects are present when the concentration in the blood reaches an impairing point. That is why we talk about a prohibited blood alcohol concentration (BAC).  It is common for the BAC to rise significantly within 20 minutes of having your first drink.  BAC can continue to rise for a period of time after the last drink is consumed.  The rate at which ethanol in the beverage  is metabolized is the same for virtually everyone regardless of their height, weight, sex, race or other such characteristics.  Alcoholic beverages don’t discriminate.  It is metabolized at the rate of .015 of (BAC) every hour. Carroll, Charles R. Drugs in Modern Society. Boston: McGraw-Hill, 2000 (fifth edition).  To avoid hangovers keep BAC low, no higher than about .05 to .06.  See How Alcohol Afects Us: The Biphasic Curve (http://www2.potsdam.edu/hansondj/HealthIssues/1100827422.html).

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.  Email CharlesRowland@DaytonDUI.com or visit his office at 2190 Gateway Dr., Fairborn, Ohio 45324.  “All I do is DUI defense.”

For more information on alcohol and your body check these city-specific sites at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburg,Huber HeightsOakwoodBeavercreekCenterville

 

DUI Law: What Did SCOTUS Say In Missouri v. McNeely

August 29th, 2014

dui lawIf you have been following developments in DUI law, you have no doubt heard about the United States Supreme Court decision in Missouri v. McNeely, 133 S.Ct. 1552 (2013).  The case deals with when, and under what circumstances the government is required to seek a warrant prior to drawing blood from a suspected DUI offender. Below is a quote from the case which provides a reasonable (and short) analysis of the case.  If you want to read the full opinion please click on the case name above.

In Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), this Court upheld a warrantless blood test of an individual arrested for driving under the influence of alcohol because the officer “might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened the destruction of evidence.” Id., at 770, 86 S.Ct. 1826 (internal quotation marks omitted). The question presented here is whether the natural metabolization of alcohol in the bloodstream presents a per seexigency that justifies an exception to the Fourth Amendment’s warrant requirement for nonconsensual blood testing in all drunk-driving cases. We conclude that it does not, and we hold, consistent with general Fourth Amendment principles, that exigency in this context must be determined case by case based on the totality of the circumstances.

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 and DUI law 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.  Email CharlesRowland@DaytonDUI.com or visit his office at 2190 Gateway Dr., Fairborn, Ohio 45324.  “All I do is DUI defense.”

For more information on DUI law check these city-specific sites at the following links:

FairbornDayton DUI LawSpringfieldKetteringVandaliaXeniaMiamisburg,Huber HeightsOakwoodBeavercreekCenterville

Methods for Obtaining A Test Under Ohio’s Implied Consent Law

July 28th, 2014

 

implied consent law

 

When you drive on Ohio’s roadways you are assumed to have consented to a search of your blood, breath, plasma or urine if you are arrested pursuant to the Ohio Drunk Driving statute, R.C. 4511.19(A) or R.C. 4511.19(B). Ohio Revised Code 4511.191(A)(2) is Ohio’s Implied Consent Law. It states, in pertinent part,

 

“Any person who operates a vehicle, streetcar, or trackless trolley upon a highway or any public or private property used by the public for vehicular travel or parking within this state or who is in physical control of a vehicle, streetcar, or trackless trolley shall be deemed to have given consent to a chemical test or tests of the person’s whole blood, blood serum or plasma, breath, or urine to determine the alcohol, drug of abuse, controlled substance, metabolite of a controlled substance, or combination content of the person’s whole blood, blood serum or plasma, breath, or urine if arrested for a violation of division (A) or (B) of section 4511.19 of the Revised Code, section 4511.194 of the Revised Code or a substantially equivalent municipal ordinance, or a municipal OVI ordinance.”

 

The first of three methods officer’s use to obtain a test is submission by a defendant. This is a typical scenario wherein a person is observed driving and arrested for OVI. At the station the officer reads the warnings on the SR-2255 form and requests that the defendant take a chemical test. The statutory authority for this method of obtaining a test is set forth at R.C. 4511.19(A)(2). It is necessary that a defendant be placed under arrest prior to the officer’s request to submit.

 

Section 4511.191(A)(4) applies the implied consent statute to persons who are dead or unconscious at the time a blood breath or urine sample is requested. It states,

 

“Any person who is dead or unconscious, or who otherwise is in a condition rendering the person incapable of refusal, shall be deemed to have consented as provided in division (A)(2) of this section, and the test or tests may be administered, subject to sections 313.12 to 313.16 of the Revised Code.”

 

Issues over this method of obtaining a test are often invoked in serious accident cases. Questions of fact about whether the person was semi-conscious, fully conscious or able to give consent are common. Due to the unusual circumstances of this type of case, an arrest is not necessary prior to the chemical test.

 

The third method for obtaining a chemical test under the implied consent provisions of Ohio law is the controversial forced blood draw.  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 investigations, 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 circumstancesas 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.

 

 

 

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.”

To learn more about Ohio’s Implied Consent law contact me, or check these city-specific sites at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburg, Huber HeightsOakwoodBeavercreekCenterville

 

 

 

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 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 nonconsensual 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