Posts Tagged ‘ohio criminal defense’

1. Name of suspect;
2. Date and time of collection;
3. Name or initials of person collecting the sample; and
4. Name or initials of person sealing the sample.

Much case law has been decided regarding the refrigeration requirement of 3701-53-05(F), which requires that, “While not in transit or under examination, all blood and urine specimens shall be refrigerated.”  In State v. Koehler (2000), 107 Ohio Misc. 2d 28, a Pataskala urine specimen spent eighteen days in the mail, unrefrigerated, on its way to lab in Columbus. The Court found the undue delay in transit leads to conclusion there was not substantial compliance with refrigeration requirement.  In State v. Cook (1992), 82 Ohio App. 3d 619, the court found the O.A.C. regulations were substantially complied with where urine sample was not refrigerated for fifteen to twenty minutes between collection and being mailed to lab in Columbus, or during the three days it was in the mail.  If you suspect that your sample was not properly refrigerated you should hire an expert witness.  In State v. Casaday (1987), 40 Ohio App. 3d 52, a diabetic defendant challenged a urine sample.  The court held that “[d]espite substantial compliance with Ohio Adm. Code 3701-53-05(F) in the analysis of a urine sample, test results may be inadmissible based on expert testimony that the results were inaccurate due to fermentation caused by lack of refrigeration and the high glucose content of the urine sample.”

Ohio Administrative Code 3701-53-03(A)(1) and (A)(2)  sets forth the two approved methods for testing alcohol in urine: Gas chromatography and Enzyme assays.  O.A.C. 3701-53-03(B)(1) through (B)(6) sets forth the approved method for testing drugs of abuse in a urine sample: (1) Immunoassay; (2) Thin-layer chromatography; (3) Gas chromatography; (4) Mass spectroscopy; (5) High performance liquid chromatography; or (6) Spectroscopy.  Urine evidence can be excluded if the method used to analyze the urine for alcohol, if not a specifically approved method, does not have documented sensitivity, accuracy, precision, and linearity, or the method is not based on procedures which have been published in a peer reviewed or juried scientific journal or thoroughly documented by the laboratory pursuant to OAC 3701-53-03(A).  OAC 3701-53-03(B) requires the positive results of presumptive tests for drugs of abuse be confirmed by one or more dissimilar analytical techniques or methods as a part of a testing procedure.

Another area of challenge is the calibration of the machines used to test the samples. O.A.C. 3701-53-04 sets forth the requirements for instrument checks, controls and certifications.  It reads, in pertinent part,

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:

1. Any changes in a procedure be approved, signed, and dated by the designated laboratory director;
2. The date the procedure was first used and the date the procedure was revised or discontinued is recorded;
3. 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;
4. 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;
5. The procedure manual includes the criteria the laboratory shall use in developing standards, controls, and calibrations for the technique or method involved; and
6. 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 urine complete the proficiency exam, administered by a national program for proficiency testing for the approved technique or method of analysis used to test the urine, 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 urine 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 urine 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 urine 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 urine, 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.

Assuming that each and every regulation was followed to the letter, your attorney can still mount a defense based on the weakness of urinalysis in general.  Illicit drugs remain in the urine much after their impairing influence has dissipated. Marijuana can show up in a urine test three days after the drug has been used.  Heavy users of marijuana can have metabolites in their urine for up to three months.  Significant issues exist for alcohol urine tests due to alcohol’s affinity for water.  Alcohol is normally present in water at a much higher rate than in the blood. Because of this higher occurrence a urine test will usually result in a person being convicted of DUI even though their actual BAC is within legal limits.  The National Institute of Drug Abuse conducted a study of urine tests and found that 1 in 5 testing labs incorrectly reported the presence of illegal drugs in urine samples – A 20% ERROR RATE!  Imagine going to your bank and asking for $10,000.00.  The teller returns with $8,000.00 and apologetically tells you that the bank is within 20%.  You would never accept such a shoddy result.  You should hire an attorney who will challenge the entire process of collecting, documenting, transferring, and testing urine.  This will require an attorney who has dedicated themselves to obtaining the highest level of skill in the complex field of DUI defense.

DUI attorney Charles M. Rowland II dedicates his 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 Charles Rowland 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 to 40404. DaytonDUI is also available on Facebook and on the DaytonDUI channel on YouTube.  You can also email Charles Rowland at: CharlesRowland@DaytonDUI.com or write to us at 2190 Gateway Dr., Fairborn, Ohio 45324. “All I do is DUI”