The state must substantially comply with Ohio Department of Health regulations requiring refrigeration of blood in a prosecution for operating a motor vehicle while under the influence of alcohol (OVI), the Ohio Supreme Court ruled today. The Supreme Court remanded the matter to allow the accused an opportunity to demonstrate that the failure to refrigerate the blood sample for more than four hours caused the test results to be unreliable.
In a majority opinion authored by Justice Terrence O’Donnell, the Court reversed trial and appellate court decisions that ruled that because the state did not strictly comply with the refrigeration requirement, the sample could not be used against Michael D. Baker in connection with a 2011 OVI charge that arose from accident that killed a pedestrian. Citing two prior Supreme Court rulings, the Court explained that a blood sample left unrefrigerated for up to five hours substantially complies with a Department of Health rule requiring a blood sample to be refrigerated when it is not in transit to a lab or under examination. In a separate concurring opinion, Chief Justice Maureen O’Connor urged the Department of Health to revise the regulation and provide more guidance regarding the purpose of refrigeration and the effects non-refrigeration has on the reliability of bodily fluid specimens.
Trooper Kept Sample In Cruiser
On March 6, 2011, Ohio State Highway Patrol Trooper Charles Emery responded to an accident involving a pedestrian who had been walking along U.S. Route 6 in Ashtabula County and was struck by a vehicle and died. Emery arrived at the scene around 12:30 a.m. and identified Baker as the driver of the vehicle. Baker admitted he had consumed six or seven beers that evening and consented to a blood test. A sample was taken at a hospital at 1:50 a.m. and given to Emery, who drove Baker home and then went to the highway patrol post to finish paperwork. Instead of refrigerating the sample, he kept it in his cruiser until his shift ended at 6 a.m., when he mailed it to the crime laboratory in Columbus for testing.
The results of the test indicated that Baker’s blood alcohol level was .095. Baker pled not guilty in county court to a first-degree misdemeanor charge of violating R.C. 4511.19(A)(1)(b) and moved to suppress the evidence from the test of his alcohol level. He argued that the four hours and 10 minutes of non-refrigeration failed to comply with Ohio Admin. Code 3701-53-05(F). The trial court agreed and suppressed the results of the blood test.
On appeal in a split decision, the Eleventh District Court of Appeals upheld the suppression of the evidence. However, the two judges in the majority disagreed on the consequence of violating the regulation; one judge opined that the failure to substantially comply with the rule rendered the blood alcohol test inadmissible, while the other concluded that the violation put the burden on the state to prove the blood-test’s reliability at a hearing before it could be admitted at trial. The third jurist dissented and would have held the state did not violate the regulation. The state appealed, and the Supreme Court agreed to hear the case.
Justice O’Donnell noted that the Ohio legislature directed that in criminal prosecutions for OVI, bodily substances shall be analyzed in accordance with methods approved by the director of health, who promulgated Ohio Adm.Code 3701-53-05(F): “While not in transit or under examination, all blood and urine specimens shall be refrigerated.” Justice O’Donnell explained that this regulation “is patently clear about what is required when the state decides to obtain a blood or urine sample from persons in this state.”
While noting that strict compliance with the refrigeration rule is preferable, the Court recognized logistical issues of gathering and submitting samples may make strict compliance unrealistic. Justice O’Donnell citedState v. Plummer, where the Court in 1986 held that the failure to refrigerate a urine sample for four hours did not render the test results inadmissible. And in State v. Mayl, a 2005 decision that cited Plummer, the Court determined that the failure to refrigerate a blood sample for as many as five hours substantially complied with the refrigeration requirement, permitting the sample to be used as evidence.
Based on that precedent Justice O’Donnell stated the failure to refrigerate Baker’s specimen for four hours and 10 minutes substantially complied with the rule and did not make the test results inadmissible per se.
Procedure for Determining Admissibility of Specimen Samples
Justice O’Donnell clarified the procedure for admitting blood-alcohol test results into evidence as established in the Court’s 2003 State v. Burnside decision. To challenge a test result, he explained, the accused must first challenge its validity by seeking to suppress the evidence before trial begins. At that point, it becomes the responsibility of the state to demonstrate it substantially complied with the administrative rule. And, if the state proves substantial compliance, the burden then shifts back to the accused to show the failure to strictly comply made the test unreliable and prejudicial.
“Here the state demonstrated substantial compliance, but Baker has not been given the opportunity to rebut the presumption of admissibility,” Justice O’Donnell wrote.
The Court therefore remanded the case to the trial court for further proceedings.
Justices Paul E. Pfeifer, Sharon L. Kennedy, and Judith L. French concurred in the opinion.
More Clarity from Health Department Needed, Chief Justice States
In a separate concurring opinion, Chief Justice O’Connor cautioned against adopting a “court-made” rule that failing to refrigerate a specimen for four or five hours is substantial compliance. She called the decision “an opportunity to focus on the shortcomings” of the current administrative rule.
She noted that one Ohio appeals court has ruled that not refrigerating a sample for up to 19 hours was a minor error while another has ruled that a 12-hour lack of refrigeration was a significant error.
“The variance among these decisions illustrates the difficulty for courts in applying a vague substantial-compliance standard,” she wrote.
Because the General Assembly directed the Department of Health to develop the regulations for ensuring the reliability of blood-alcohol-test results, the Chief Justice states that guidance from the department about the purpose of refrigeration and the effect on the reliability of the test will provide clarity. Right now it is “unclear what conditions the regulation is intended to ensure by requiring refrigeration,” she wrote.
A former version of the rule required the sample be kept below 42 degrees, but that is no longer included, and there is no requirement for the sample to be refrigerated when it is in transit even if it takes days or weeks, she noted.
“The key to obtaining clarity regarding substantial compliance resides with the director of health and his or her scientific expertise rather than with the courts,” she wrote.
Justice Judith Ann Lanzinger concurred in the Chief Justice’s opinion.
Rule Cannot Be Ignored
In a dissenting opinion, Justice William M. O’Neill acknowledge that strict compliance is not always realistic or humanly possible, but wrote the majority decision makes the substantial compliance standard too low for such serious cases. He stated the decision allows for the rule to be ignored.
“One man lies dead and another man faces a lengthy prison term if convicted of drunk driving. This is no time to be treating the rules regarding admissibility of evidence lightly,” he wrote.
Justice O’Neill wrote it is “outrageous that the General Assembly assigned to experts the task of setting rules to ensure that accurate test results are admitted in drunk-driving cases only to have the rules ignored” by an Ohio State Highway Patrol trooper who stated that was not patrol procedure.
“The courts could use some guidance in determining which procedures are important for obtaining accurate results and which are not. But under no circumstances is it the role of the Ohio State Highway Patrol to decide which of these rules must be complied with,” he wrote.
2014-1295. State v. Baker, Slip Opinion No. 2016-Ohio-451.
View oral argument video of this case.
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