Sometimes rules are not made to be broken. When it comes to cases of alleged driving under the influence, there are rules for drivers, and there are rules for the government. When a driver breaks the rules, there are consequences. There are also consequences when the government breaks the rules. When the broken rules relate to blood tests, the blood tests cannot be used as evidence.
The rules for DUI/OVI blood testing are found in the Ohio Revised Code and the Ohio Administrative Code. Section 4511.19 of the Ohio Revised Code states blood tests must be analyzed in accordance with methods approved by the Department of Health. The methods approved by the Department of Health, the ‘rules’, are regulations in chapter 3701-53 of the Ohio Administrative Code. For a blood test to be admissible, law enforcement must substantially comply with the Department of Health regulations. Two recent appellate cases illustrate law enforcement’s failure to comply with the regulations.
The first case is State v. McCall. The regulation at issue in McCall requires blood specimens to be collected in a container which contains a solid anticoagulant. The arresting officer checked a box on a checklist indicating the container had a solid anticoagulant. When questioned, however, the officer admitted he did not know if there was anything in the container. In addition, the phlebotomist who performed the blood draw testified she did not observe anything in the container and just assumed there was an anticoagulant in it. The trial court suppressed the blood test, and the court’s decision was upheld by the Court of Appeals because the prosecution failed to prove substantial compliance with the regulation requiring a solid anticoagulant.
In the second case, State v. Dukes, there were two regulations at issue. The first regulation requires blood specimens to be sealed in a manner such that tampering can be detected. The nurse labeled the blood specimens but did not place the label over the top of the tube so tampering could be detected. The second regulation requires blood specimens to be refrigerated when not in transit, and there was simply no proof the blood specimen was refrigerated. Although the crime lab technician testified it was the laboratory’s policy to refrigerate blood specimens, there was no testimony the particular blood specimen from Dukes was actually refrigerated. The trial court overruled Dukes’ motion to suppress the blood test, but the Court of Appeals held the blood test is inadmissible due to the lack of compliance with the regulations regarding sealing and refrigerating the blood specimen.
It is often assumed that, if a DUI/OVI case involves a blood test over the prohibited level, the defendant will certainly be found guilty. These cases demonstrate that isn’t necessarily true. A good DUI/OVI lawyer should investigate all the evidence surrounding the blood test to determine whether the Department of Health regulations have been followed. If the lawyer discovers the government broke the rules, the result may be a more favorable outcome for the client.