Tag: urine testing

Urine Testing: No Privacy For You!

00Blood & Urine TestsTags: , , , , , , , , , , , , , , , , , , , ,

urine testingThe rules for urine testing in Ohio are set forth at Ohio Administrative Code 3701-53-05 & 3701-53-06.  At O.A.C. 3701-53-05, it is clearly stated that a urine test must be witnessed.  It states at subsection (D),

(D) The collection of a urine specimen must be witnessed to assure that the sample can be authenticated. Urine shall be deposited into a clean glass or plastic screw top container which shall be capped, or collected according to the laboratory protocol as written in the laboratory procedure manual.

In urine testing cases, the state has the burden to prove substantial compliance with the regulations upon a defendant’s motion to suppress results of urine-alcohol tests.  State v. Mayl, 106 Ohio St.3d 207, 2005-Ohio-4629, 833 N.E.2d 1216, paragraph one of the syllabus.  “The defendant must first challenge the validity of the alcohol test by way of a pretrial motion to suppress;  failure to file such a motion ‘waives the requirement on the state to lay a foundation for the admissibility of the test results.’  State v. French (1995), 72 Ohio St.3d 446, 451, 650 N.E.2d 887.   After a defendant challenges the validity of test results in a pretrial motion, the state has the burden to show that the test was administered in substantial compliance with the regulations prescribed by the Director of Health.   Once the state has satisfied this burden and created a presumption of admissibility, the burden then shifts to the defendant to rebut that presumption by demonstrating that he was prejudiced by anything less than strict compliance.  * * * Hence, evidence of prejudice is relevant only after the state demonstrates substantial compliance with the applicable regulation.”  (Emphasis added.)  Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 24.

While Crim.R. 47 requires a defendant to state his grounds for a motion to suppress “with particularity,” the state waives this issue if it is not raised in opposition to a defendant’s motion to suppress.  State v. Mayl, 154 Ohio App.3d 717, 2003-Ohio-5097, 798 N.E.2d 1101, ¶ 22.

So the moral of the story is one that has been repeated on this page many times.  Communicate, communicate, communicate! Spend time telling your attorney about all aspects of a urine testing case, because what may seem like an insignificant or embarrassing detail, may help you win your case.  It is also important that you trust your case with an attorney who has the experience necessary to help you win your case.

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 urine testing cases check these city-specific sites at the following links:

FairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburg,Huber HeightsOakwoodBeavercreekCenterville

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

00Blood & Urine Tests, Breath Testing, DUI Court ProcessTags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,
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

Urine Tests Produce Too Many False Positives

00Blood & Urine TestsTags: , , , , , , , , , , , , , , , , , , , , , ,
IMG_2407 - Urine

The EtG test is a biomarker test that detects the presence of ethyl glucuronide in urine samples. Usually, it is used to monitor alcohol consumption in individuals who are legally prohibited from drinking alcohol by the justice system or restricted from drinking by their employers. (Source)  The EtG urine alcohol test has come under criticism because it is so sensitive that “it can give positive results for merely coming in contact with common household products that contain alcohol, such as aftershave and mouthwash.” The Role of Biomarkers in the Treatment of Alcohol Use Disorders (PDF), September 2006, Substance Abuse and Mental Health Services Administration

The Substance Abuse and Mental Health Services Administration issued an advisory in 2006 that the EtG test should not be used as the sole basis for taking any legal action against someone who has a positive result, cautioning that the test is “scientifically unsupportable as the sole basis for legal or disciplinary action” because the highly-sensitive tests “are not able to distinguish between alcohol absorbed into the body from exposure to many common commercial and household products containing alcohol or from the actual consumption of alcohol.”  Center for Substance Abuse Treatment. The Role of Biomarkers in the Treatment of Alcohol Use Disorders. Substance Abuse Treatment Advisory. Volume 5, Issue 4, 2006

Worse yet is the duration of sensitivity.  The biomarker test detects ethyl glucuronide in urine samples and can detect alcohol several days after the last drink.   The EtG test came under scrutiny when a significant number of people, who insisted they had abstained from drinking alcohol, failed the test. SAMHSA used many of those protested cases to research the accuracy of the EtG test and determine the cause of the false positives.  The manufacturer of the test, Redwoood Toxicology Laboratory, is facing at least one lawsuit claiming its test is “inherently faulty.” The lawsuit claims that Redwood does not inform its customers — law enforcement, probation offices, and employers — that the test will return positive results for coming in contact with household products that contain alcohol.

Dayton DUI attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver.  He has the credentials and the experience to win your case and has made himself Dayton’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, www.facebook.com/daytondui.  You can also email Charles Rowland at: CharlesRowland@CharlesRowland.com or write to us at 2190 Gateway Dr., Fairborn, Ohio 45324.

Alcohol Tests Under Heightened Scrutiny

00Blood & Urine Tests, Breath TestingTags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,

blood, human, splatter, dropsThe following article, by Andy Coghlan appeared today’s version of New Scientist. [HERE]  It represents possible scientific defenses to blood and urine alcohol tests.  Dayton DUI attorney Charles M. Rowland II is committed to learning as much as possible about scientific advances in DUI defense.  He is currently the only attorney in the State of Ohio to be certified in Forensic Sobriety Assessment.

Fail an alcohol test and you could lose your job. But confidence is draining from the blood and urine tests that are supposed to show conclusively whether someone has been drinking – and the US government has decided it’s time to take another look at them.

Typically, the body destroys alcohol within 6 hours, so the tests are designed to pick up tiny amounts of substances such as ethyl glucuronide (EtG) and ethyl sulphate (EtS) that are formed exclusively from the breakdown of alcohol. These remain detectable in urine for almost a week.

But the tests can return a positive result in people who haven’t drunk any alcohol but have been exposed to minute quantities of it in alcohol-based hand-wipes and mouthwashes, alcohol-free wine, and even foods such as bananas and sauerkraut.

In the US, several legal cases are under way in which doctors, nurses and other professionals who were being monitored for abstinence but tested positive are protesting their innocence.

Inappropriate action

The US health department’s Substance Abuse and Mental Health Services Administration (SAMHSA) is already aware of the problem. In 2006 it issued advice which declared as “inappropriate” and “scientifically unsupportable” any legal or disciplinary action based solely on an EtG or EtS test. But at a meeting convened by SAMHSA last month to review the latest scientific and legal evidence, lawyers asked for clearer, quantitative advice to distinguish accidental from deliberate consumption.

“The courts need guidance from SAMHSA,” says William Meyer, a senior fellow of the National Association of Drug Court Professionals. “Can SAMHSA set a cut-off level which will reliably predict knowing alcohol consumption, and exclude accidental exposure?” he asked.

The sauerkraut factor

At present, there are no official cut-off figures for lawyers to refer to. A widely used unofficial figure for both EtG and EtS is 0.1 milligrams per litre of urine – but recent research in Norway has shown that drinkers of non-alcoholic wine exceed this level for EtS (Journal of Analytical Toxicology, vol 34, p 84). Likewise, research in Germany has shown that eating bananas or sauerkraut can push EtG beyond the cut-off (International Journal of Legal Medicine, DOI: 10.1007/s00414-010-0511-z).

Greg Skipper, medical director of the Alabama Physician Health Program, runs a website advising people who think they have been unfairly incriminated by the tests. He doubts whether a definitive cut-off can be found, because the overlap between innocent and deliberate exposure is too large to give legal certainty.

He says that there is hope, however, from more recent research on blood tests for another alcohol breakdown product called phosphatidyl ethanol, or PEth. It’s formed when alcohol combines with fatty lipids on red blood cell membranes, and stays there for the whole month-long life of the cell.

Skipper says that levels of PEth above 20 nanograms per millilitre of blood are pretty conclusive proof that someone has drunk at least seven standard drinks over a week, a level impossible from accidental exposure. “PEth needs more research, but it looks like it will be an excellent direct marker that will indicate significant drinking,” he says.

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