Posts Tagged ‘department of health’

Blood, Breath & Urine Testing In Ohio: The Three Hour Rule

September 25th, 2011
Self made photo, taken August 05.

Help your attorney defend your case by creating a credible time-line of events.

R.C. 4511.19(D) sets forth a three-hour time limitation for the collection of bodily substances for alcohol and/or drug testing.  This 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.

DUI trial counsel will need to establish a time-line of the incident.  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

Ohio Breath Test Law; the 3-hour Rule

June 7th, 2010

Substantial Compliance Requires Collection Within Three Hours.

R.C. 4511.19(D) sets forth a three-hour time limitation for the collection of bodily substances for alcohol and/or drug testing.  This 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.

DUI trial counsel will need to establish a time-line of the incident.  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

Ohio OVI Law: State v. Lentz (Breath Test Regulations)

March 3rd, 2010

State v. Lentz, 2010-Ohio-762, 09 CAC 07 0065 (OHCA5)

Here, in a case arising out the Delaware Municipal Court, defendant Lentz challenged the three-year record keeping requirement.  The court states as follows,

Because of the very general nature of appellant’s motion to suppress, specific evidence in response is not necessary, and general testimony of compliance is sufficient. See Columbus v. Morrison, Franklin App. No. 08AP-311, 2008-Ohio-5257State v. Cook, Wood App. No. WD-04-029, 2006-Ohio-6062, at ¶ 31-33 (statement that police officer maintains log books for machine as required by rules and regulations of the Ohio Department of Health sufficient to show substantial compliance with record keeping regulations); State v. Hernandez-Rodriguez, Portage App. No. 2006-P-0121, 2007-Ohio-5200, at ¶ 52-53 (trooper’s general testimony of compliance with record keeping requirements sufficient to defeat motion to suppress); Crotty at ¶ 22-28 (finding that State satisfied its burden with officer’s testimony that machine was in good working order based upon records).

The absence of the records at the patrol post on the date of the Department of Health’s inspection in 2008 does not mandate the conclusion that the records were not kept properly. State v. Deutsch, Butler App. No. CA2008-03-035, 2008-Ohio-5658 at ¶ 26. This fact, alone, does not prove that the records were never created, kept irregularly, permanently lost, or something of that nature that would establish a tangible violation of Ohio Adm.Code 3701-53-04(E) and 3701-53-01(A). Id.

Trooper Glascox admitted that the machine used to test Appellant had not been in the custody and control of the Delaware Post for three years, that they had only had it about eighteen months. He believed they got the machine from the Franklin County jail. It was impossible for records to have been maintained by the Ohio State Highway Patrol for a three-year period on a unit that had only been in use by them for approximately eighteen months. There is no requirement that the record books be admitted into evidence at a hearing on a motion to suppress. Upper Sandusky v. Salyer, (June 1, 1987), Wyandot App. No. 16-86-6.

We recognize that record keeping, including maintenance and repair records, is important so that defendants may conduct complete and relevant discovery concerning the instrument that was used to conduct their test. However, rigid compliance with the three-year specification in the ODH record-keeping regulation is not required where the records themselves are not shown to be misleading, inaccurate, or incomplete. State v. Morton (May 10, 1999), CA98-10-131; State v. Gerrard (July 27, 1998), Warren App. No. CA97-10-107.

Therefore, substantial compliance with the regulations was established by the state, thereby triggering the presumption of admissibility. Accordingly, the burden shifted to Appellant to rebut such presumption by a showing of prejudice. State v. Burnside, supra. It is difficult to imagine how appellant could have been prejudiced. In the case at bar, the evidence showed that the BAC Datamaster was functioning properly at the time of appellant’s test. The evidence also showed that the instrument had been tested and found to be working properly within the regulatory time frame before and after appellant’s test. These crucial facts are not affected by a failure to affirmatively establish that records have been kept for three years. In the absence of any indication of misleading or altered records, records for the life of the machine are in substantial compliance with the regulations. See State v. Plummer (1986), 22 Ohio.St.3d 292, 294, 490 N.E.2d 902. See also, State v. Morton, supra; State v. Gerrard,supra; State v. Wetherill, Tuscarawas App. No. 05AP090062, 2006-Ohio-5687 at ¶ 125. (“While it is correct that the specific three year retention was not stated but only that the records are kept as long as they had the device, we find that the retention for three years is unrelated to the compliance with the testing and the specific time omission, at best, a de minims aberration”.)