In order to successfully defend a blood test case, a DUI defense lawyer must be familiar with Ohio’s DUI 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 DUI/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.
The blood specimen must be collected by an authorized person within three hours of the alleged violation according to Ohio Revised Code 4511.19(D). It reads in pertinent part,
4511.19(D)(1)(b). In any criminal prosecution or juvenile court proceeding for a violation of division (A) or (B) of this section or for an equivalent offense that is vehicle-related, the court may admit evidence on the concentration of alcohol, drugs of abuse, controlled substances, metabolites of a controlled substance, or a combination of them in the defendant’s whole blood, blood serum or plasma, breath, urine, or other bodily substance at the time of the alleged violation as shown by chemical analysis of the substance withdrawn within three hours of the time of the alleged violation. The three-hour time limit specified in this division regarding the admission of evidence does not extend or affect the two-hour time limit specified in division (A) of section 4511.192 of the Revised Code as the maximum period of time during which a person may consent to a chemical test or tests as described in that section. The court may admit evidence on the concentration of alcohol, drugs of abuse, or a combination of them as described in this division when a person submits to a blood, breath, urine, or other bodily substance test at the request of a law enforcement officer under section 4511.191 of the Revised Code or a blood or urine sample is obtained pursuant to a search warrant. Only a physician, a registered nurse, an emergency medical technician-intermediate, an emergency medical technician-paramedic, or a qualified technician, chemist, or phlebotomist shall withdraw a blood sample for the purpose of determining the alcohol, drug, controlled substance, metabolite of a controlled substance, or combination content of the whole blood, blood serum, or blood plasma. This limitation does not apply to the taking of breath or urine specimens. A person authorized to withdraw blood under this division may refuse to withdraw blood under this division, if in that person’s opinion, the physical welfare of the person would be endangered by the withdrawing of blood.
The three hour rule is a change from Ohio‘s previous law which gave the State only two hours in which to obtain a sample. The time requirement has been adopted by the Ohio Supreme Court in Cincinnati v. Sand, 43 Ohio St.2d 79, 330 N.E.2d 908 (1975) and more definitively at Newark v. Lucas, 40 Ohio St.3d 100, 532 N.E.2d 130 (1988), where the court held that tests in test cases (cases involving a violation of the prohibited alcohol level) the would only be admissible when drawn within the time limitations of the statutes. What about in refusal cases? After some confusion following the Lucas decision, the Ohio Supreme Court ruled in State v. Mayl, 106 Ohio St.3d 207, 833 N.E.2d 1216 (2005) that the state must show substantial compliance with R.C. 4511.19(D) and the Department of Health regulations before the test results are admissible. A door for use outside of the three-hour limitation exists, however. In Columbus v. Taylor, 39 Ohio St. 3d 162, 529 N.E.2d 1382, the Court gave trial court’s broad discretion to allow in retrograde extrapolation evidence if properly supported by an expert. In State v. Hassler, 115 Ohio St.3d 322, 875 N.E.2d 46 (2007), the Supreme Court back-tracked on its Mayl decision in an aggravated vehicular homicide case, allowing in expert-supported testimony of a blood test drawn more than seven (7) hours after an accident. This may be a return to the Lucas rule or it may be a case that is limited only to aggravated vehicular homicide cases. A common scenario in which the three-hour limitation is raised is in situations where the police did not witness operation of the vehicle, like in an accident. Another possible issue that trial counsel can raise is a challenge to the “beyond the three hour test” is an Evidence Rule 403 argument that the probative value of the evidence is outweighed by the unfair prejudice of its admission. Sources for this article include Intoxication Test Evidence, Fitzgerald & Hume and Ohio Driving Under the Influence Law, 2009-2010 ed., Weiler & Weiler
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. Pursuant to that rule, Ohio allows for testing including gas chromatography and enzyme assays. Gas Chromatography 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.
The method used to analyze the defendant’s blood must have documented sensitivity, accuracy, precision and linearity. O.A.C. 3701-53-03(A). The method must also be based on procedures which have been published in peer reviewed or juried scientific journals or thoroughly documented by the laboratory. O.A.C. 3701-53-03(A). To challenge a blood test, it is important to know if the State has tested the blood as whole blood or as serum/plasma. Operation with a concentration of alcohol is prohibited if the concentration in whole blood is equal to or exceeds .08%, R.C. 4511.19(A)(1)(b). However, the prohibited concentration for whole blood is a concentration equal to or exceeding .096%, R.C.4511.19(A)(1)(c). The high teir (super-OVI) standard for whole blood is greater than .17% and the prohibited level for blood serum or plasma is greater than.204%. If your attorney does not understand the difference between a whole blood and a serum/plasma test, he or she may give incorrect advise based on an incorrect assumption. Secondly, studies suggest that plasma and serum tests can be 16 to 21 percent higher than whole blood tests (Taylor, 2000; Fitzgerald, 1999). If the report that you receive from the Crime Lab does not specify whether whole blood or serum was tested, consider making a request for independent testing of the sample. O.A.C. 3701-53-01(B) requires at least on copy of the written procedure manual required by paragraph (D) of O.A.C. 3701-53-06 shall be on file in the analytical test area.
Ohio Administrative Code 3701-53-05 sets forth the manner in which the blood samples are to be collected. The Defendant’s blood sample must be collected using an aqueous solution of a non-volatile antiseptic on the skin pursuant to O.A.C. 3701-53-05 (B) and cannot be collected using alcohol as a skin antiseptic which is prohibited by O.A.c. 3701-53-05(B). O.A.C. 3701-53-05(E) requires the “blood containers shall be sealed in a manner such that tampering can be detected and have a label which contains at least the following information:
- Name of suspect;
- Date and time of collection;
- Name or initials of person collecting the sample; and
- Name or initials of person sealing the sample.
If a blood sample is not properly preserved it can decompose. One of the results of decomposition is the creation of alcohol. According to Lawrence Taylor in his seminal Drunk Driving Defense, 6th Ed., pp. 561, “Ethyl alcohol is generated by fermentation of carbohydrates and proteins in the blood sample. This occurs through the actions of various microorganisms. The simplest and one of the most common processes is the breakdown of enzymes by one of various species of the yeast Candida, such as Candida albicans.” The results of the fermentation in the blood vial is dramatic. For example, a blood sample which contains no alcohol can decompose and cause a reading of .25 percent or even higher, depending on the stage of decay. (See Taylor, Id. at 561). Proper handling of the blood sample requires the refrigeration of the blood sample. O.A.C. 3701-53-05(F). The problem is that refrigeration can only slow down the decomposition process not end it completely. Another protective measure is the addition of a preservative, such as sodium fluoride. Scientific studies (as cited in Taylor, Id. at 563) suggest that sodium fluoride can be ineffective in preventing alcohol production by Candida albicans. Counsel should also be aware of common human errors which can occur following collection of the blood sample. It is not at all uncommon for the blood to be collected and the vial not inverted to allow the mixing of the preservative and the sample. Make sure that your DUI defense attorney is aware of these problems which may prevent the introduction of your blood test, or provide you with a viable defense in your case.
As blood testing becomes a more favored form of evidential testing in Ohio, attorneys must become familiar with flaws in the testing protocol which may create detriments to their clients. One such area for consideration is the way in which the blood specimen is handled from collection site to the property room to the Court. Most blood specimens are collected in Vacutainer tubes which contain pre-measured amounts of preservatives and anticoagulants. Mixing the specimen and the contents of the tube must be done in a prescribed manner involving the gentle inversion of the tube eight to ten times. The blood must be mixed properly with the preservative to stop the process of glycosis which could generate alcohol fermentation. Obviously if your blood sample is producing its own alcohol, the test is flawed to the detriment of the subject. The anticoagulant stops the blood from clotting so that the specimen can be centrifuged and tested pursuant to headspace gas chromatography. If the tubes are inverted too vigorously, the red blood cells can be broken down. Hemolysis is the proper name for this breakage of the red blood cells. Hemolysis can be detected because it leaves a colored tinge to the serum or plasma fluid. This is of vital importance to the integrity of the test because the method reading is color density dependent.
Your attorney should also file a detailed discovery request requiring the lab to document the chain of custody and a request that the sample be made available for private testing by your privately retained expert. Ohio Administrative Code 3701-53-06
(A), requires that the, “[c]hain of custody and the test results for evidential alcohol and drugs of abuse shall be identified and retained for not less than three years, after which time the documents may be discarded unless otherwise directed in writing from a court. All positive blood, urine and other bodily substances shall be retained in accordance with rule 3701-53-05
of the Administrative Code for a period of not less than one year, after which time the specimens may be discarded unless otherwise directed in writing from a court.”
Your attorney should also demand proof that the laboratory has complied with each of the additional requirements set forth in O.A.C. 3701-53-06 which include:
(B) The laboratory shall successfully complete a national proficiency testing program using the applicable technique or method for which the laboratory personnel seek a permit under rule 3701-53-09 of the Administrative Code.
(C) The laboratory shall have a written procedure manual of all analytical techniques or methods used for testing of alcohol or drugs of abuse in bodily substances. Textbooks and package inserts or operator manuals from the manufacturer may be used to supplement, but may not be used in lieu of the laboratory’s own procedure manual for testing specimens.
(D) The designated laboratory director shall review, sign, and date the procedure manual as certifying that the manual is in compliance with this rule. The designated laboratory director shall ensure that:
- Any changes in a procedure be approved, signed, and dated by the designated laboratory director;
- The date the procedure was first used and the date the procedure was revised or discontinued is recorded;
- A procedure shall be retained for not less than three years after the procedure was revised or discontinued, or in accordance with a written order issued by any court to the laboratory to save a specimen that was analyzed under that procedure;
- Laboratory personnel are adequately trained and experienced to perform testing of blood, urine and other bodily substances for alcohol and drugs of abuse and shall ensure, maintain and document the competency of laboratory personnel. The designated laboratory director shall also monitor the work performance and verify the skills of laboratory personnel;
- The procedure manual includes the criteria the laboratory shall use in developing standards, controls, and calibrations for the technique or method involved; and
- A complete and timely procedure manual is available and followed by laboratory personnel.
Your Ohio DUI attorney should also file a detailed discovery request for information on the personnel conducting the testing to see if the person meets the required qualifications as set forth in Ohio Administrative Code 3701-53-07. Did the laboratory technician who analyzed the blood complete the proficiency exam, administered by a national program for proficiency testing for the approved technique or method of analysis used to test the blood, in a satisfactory manner, pursuant to OAC 3701-53-07(A)(2) for alcohol and OAC 3701-53-07(B)(2) for drugs of abuse? Was the laboratory technician who analyzed the blood certified by the designated laboratory director that he or she is competent to perform all procedures contained in the laboratory’s written procedure manual for testing specimens, pursuant to OAC 3701-53-07(A)(2) for alcohol and 3701-53-07(B)(2) for drugs of abuse? Did the laboratory technician who analyzed the blood meet the requirements set forth in OAC 3701-53-07 (A)(2)(a-d) for alcohol testing and OAC 3701-53-07(B)(2)(a-d) for drug testing? Did the person analyzing the blood sample have a laboratory director’s permit or a laboratory technician’s permit issued by the director of health under OAC 3701-53-09(A)(1) for alcohol testing and (A)(2) for drug testing; and if not , was the designated laboratory director who performed the tests, the testing technician under the general direction of a laboratory director pursuant to OAC 3701-53-07(A) for alcohol testing and (B) for drug testing? Did the person analyzing the blood, if they were a laboratory technician, conduct a technique or method of analysis that was listed on the laboratory director’s permit, pursuant to OAC 3701-53-07(A) for alcohol testing and 3701-53-07(B) for drug testing? And finally, did the designated director of the laboratory where the urine was analyzed meet the qualifications for said laboratory director’s permit, pursuant to OAC 3701-53-07(A)(1) for alcohol testing and OAC 3701-53-07(B)(1) for drug testing? Ohio Administrative Code 3701-53-08 sets forth the requirements that lab personnel pass surveys and proficiency tests. Make sure your attorney’s discovery requests demands to see the results of these tests.
Ohio Revised Code Section 4511.191(A)(5) allows forced blood draws. Officers may use “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.” This section applies to persons who have two prior convictions but opens the door to zealous police who can obtain a warrant. It also invites the adoption of “no-refusal” zones or efforts which have been adopted in some Ohio jurisdictions. O.R.C. 1547.111(B) applies the “whatever means necessary” test to watercraft. Ohio Revised Code 4511.191(A)(4) authorizes the State to withdraw blood from a corpse or from a person who is unconscious or from a person who is incapable of withholding consent. Ohio Revised Code 4511.19(D)(1)(b) provides that courts may admit blood evidence upon consent of the tested “or a blood or urine sample…obtained pursuant to warrant.”
For the last seven years, I have focused exclusively on the complex field of DUI defense. I have attended the National College for DUI Defense specialization seminar at Harvard University and the Mastering Scientific Evidence in a DUI case. I have spoken and written about DUI and I am 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? I have experience winning blood test cases. I dedicate my practice to defending the accused drunk driver in Fairborn, Dayton, Springfield, Kettering, Vandalia, Xenia, Miamisburg, Springboro,Huber Heights, Oakwood, Beavercreek, Centerville and throughout Ohio. He has the credentials and the experience to win your case and has made himself the Miami Valley’s choice for DUI defense. Contact me by phone at 937-318-1DUI (937-318-1384), 937-879-9542, or toll-free at 1-888-ROWLAND (888-769-5263). For after-hours help contact our 24/7 DUI HOTLINE at 937-776-2671. For information about Dayton DUI sent directly to your mobile device, text DaytonDUI (one word) to 50500. Follow DaytonDUI on Twitter @DaytonDUI or Get Twitter updates via SMS by texting DaytonDUI to40404. DaytonDUI is also available on Facebook and on the DaytonDUI channel on YouTube. You can also email me at: CharlesRowland@DaytonDUI.com or write to us at 2190 Gateway Dr., Fairborn, Ohio 45324. “All I do is DUI”