When a person is arrested for DUI/OVI in Ohio, the arresting officer typically asks the person to submit to a breath, blood or urine test. For a test result to be admissible in court, the test must be administered in compliance with regulations issued by the Ohio Department of Health. One regulation requires refrigeration of blood and urine samples, and that regulation was the subject of a recent case decided by the Ohio Supreme Court.
The case is State v. Baker. In Baker, the defendant was driving a vehicle and was involved in an accident with a pedestrian. A police officer administered field sobriety tests and obtained a sample of the defendant’s blood. The blood sample was placed in the officer’s cruiser for four hours and ten minutes and then mailed to a crime lab. At the crime lab, the blood sample was tested, and the result was .095 grams of alcohol per one hundred milliliters of blood.
The defendant filed a motion to suppress the blood test result because the blood sample was not refrigerated in accordance with the Ohio Department of Health regulations. The trial court granted the defendant’s motion, and the court of appeals affirmed the trial court’s decision. The prosecution appealed to the Ohio Supreme Court.
The Ohio Supreme Court interpreted the regulation regarding refrigeration of blood and urine samples. That regulation, Ohio Administrative Code section 3701-53-05(F), states, “While not in transit or under examination, all blood and urine specimens shall be refrigerated”. The question addressed by the Court was whether the failure to refrigerate a blood or urine sample not in transit or under examination for a period of four hours and ten minutes constitutes substantial compliance with the regulation.
The Supreme Court noted that blood and urine tests do not need to strictly comply with the regulations: there need only be “substantial compliance” for the tests to be admissible. This principle was developed in previous cases, including State v. Plummer, another case involving the requirement of refrigerating blood and urine samples. The “substantial compliance” test was further refined in State v. Burnside, when the Court limited the substantial compliance standard to excusing errors which are “clearly de minimis”. The Court concluded the failure to refrigerate Baker’s blood sample for four hours and ten minutes constitutes substantial compliance with the regulation.
The Court’s opinion in Baker did not explain why the lack of refrigeration for four hours is “clearly de mimimis”. Instead, the Court simply relied on previous decisions which found substantial compliance with the refrigeration regulation when the lack of refrigeration was as long as five hours.
The Court’s opinion in Baker is troubling because the Court reaches a conclusion regarding a scientific question with no scientific evidence to support the Court’s conclusion. The Court is not a panel of expert scientists and is not qualified to opine on what affects the accuracy of scientific test results. In the Baker opinion, however, the Court does just that. The Court creates a dichotomy: whether the lack of refrigeration “is a de minimis error or whether it affects the reliability of a gas chromatography test on that sample such that it becomes an inaccurate measurement of alcohol in the blood”.
By concluding the lack of refrigeration for four hours and ten minutes is a de minimis error, the Court also concludes that lack of refrigeration does not affect the accuracy of the measurement of alcohol in the blood. The Court had no evidence on which to base this conclusion. There was no testimony from either the prosecution or the defense regarding the impact of lack of refrigeration.
Thankfully, this decision is limited to the narrow issue of refrigerating blood and urine samples when not in transit. Hopefully, this flawed analysis will not be applied to all regulations for chemical testing in Ohio DUI/OVI cases.