Posts Tagged ‘urine testing’

Ohio DUI Law: How To Fight A Urine Test

May 16th, 2013

Exquisite sample of urine produced after a lon...

In order to successfully defend a urinalysis 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 urine 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.  While less reliable than a blood or breath test, the urine test is increasingly favored by law e

nforcement officers because it allows them to expand the parameters of their suspicion to include illicit and prescription drugs. Sometimes the urine 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 urine sample.  If the facts support a urine test then your attorney must hold the State to its proof.

The urine test 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urine, or other bodily substance at the time of the alleged violation as shown by chemical analysis of the substance withdrawn within three hours of the time of the alleged violation.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.

Ohio Administrative Code 3701-53 sets forth the manner in which the urine samples are to be collected. 3710-53-05 (D) states that the “collection of a urine specimen must be witnessed to assure that the sample can be authenticated.”  It further requires that the “urine shall be deposited into a clean glass or plastic screw top container which shall be capped.”  This section also contains an escape hatch for prosecutors if the collection is botched.  The test will still be admitted if it was “collected according to the laboratory protocol as written in the laboratory procedure manual.”  3701-53-05(E) requires the “urine containers shall be sealed in a manner such that tampering can be detected and have a label which contains at least the following information:

  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,

(A) A senior operator shall perform an instrument check on approved evidential breath testing instruments listed under paragraphs (A)(1), (A)(2), and (B) of rule 3701-53-02no less frequently than once every seven days in accordance with the appropriate instrument checklist for the instrument being used. The instrument check may be performed anytime up to one hundred and ninety-two hours after the last instrument check.

  1. The instrument shall be checked to detect radio frequency interference (RFI) using a hand-held radio normally used by the law enforcement agency performing the instrument check. The RFI detector check is valid when the evidential breath testing instrument detects RFI or aborts a subject test. If the RFI detector check is not valid, the instrument shall not be used until the instrument is serviced.
  2. An instrument shall be checked using a solution containing ethyl alcohol approved by the director of health. An instrument check result is valid when the result of the instrument check is at or within five one-thousandths ( 0.005 ) grams per two hundred ten liters of the target value for that approved solution. An instrument check result which is outside the range specified in this paragraph shall be confirmed by the senior operator using another bottle of approved solution. If this instrument check result is also out of range, the instrument shall not be used until the instrument is serviced or repaired.

(B) Instruments listed under paragraph (A)(3) of rule 3701-53-02 of the Administrative Code shall automatically perform a dry gas control test before and after every subject test and instrument certification using a dry gas standard traceable to the national institute of standards and technology(NIST). Dry gas control results are valid when the results are at or within five one-thousandths ( 0.005 ) grams per two hundred ten liters of the alcohol concentration on the manufacturer’s certificate of analysis for that dry gas standard. A dry gas control result which is outside the range specified in this paragraph will abort the subject test or instrument certification in progress.

(C) Representatives of the director shall perform an instrument certification on approved evidential breath testing instruments listed under paragraph (A) (3) of rule 3701-53-02 of the Administrative Code using a solution containing ethyl alcohol approved by the director of health according to the instrument display for the instrument being certified. An instrument shall be certified no less frequently than once every calendar year or when the dry gas standard on the instrument is replaced, whichever comes first. Instrument certifications are valid when the certification results are at or within five one-thousandths grams per two hundred ten liters of the target value for that approved solution. Instruments with certification results outside the range specified in this paragraph will require the instrument be removed from service until the instrument is serviced or repaired. Certification results shall be retained in a manner prescribed by the director of health.

(D) An instrument check or certification shall be made in accordance with paragraphs (A) and (C) of this rule when a new evidential breath testing instrument is placed in service or when the instrument is returned after service or repairs, before the instrument is used to test subjects.

(E) A bottle of approved solution shall not be used more than three months after its date of first use, or after the manufacturer’s expiration date on the approved solution certificate, whichever comes first. After first use, a bottle of approved solution shall be kept under refrigeration when not being used. The approved solution bottle shall be retained for reference until that bottle of approved solution is discarded.

(F) Each testing day, the analytical techniques or methods used in rule 3701-53-03 of the Administrative Code shall be checked for proper calibration under the general direction of the designated laboratory director. General direction does not mean that the designated laboratory director must be physically present during the performance of the calibration check.

(G) Results of instrument checks, controls, certifications, calibration checks and records of service and repairs shall be retained in accordance with paragraph (A) of rule 3701-53-01 of the Administrative Code.

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

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

Urine Tests Produce Too Many False Positives

June 21st, 2011
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

February 11th, 2011

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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