Articles Posted in DUI/OVI blood/breath/urine tests

The last post in this blog described how crime lab reports are used in Ohio DUI / OVI cases. In a nutshell: a lab technician issues a report identifying the quantity of alcohol or drugs in a person’s blood or urine, and that report is given to the prosecutor. Ohio legislation requires the prosecutor to provide the report to the defense attorney. Ohio legislation, however, is not the only law impacting the use of these reports. The Constitutions of Ohio and the United States also provide limitations on the use of crime lab reports in Ohio DUI / OVI cases.

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Defendants’ Confrontation Rights
In a criminal prosecution, defendants have the right to confront the witnesses against them. This right is guaranteed by the Sixth Amendment to the United States Constitution and Article I, Section 10 of the Ohio Constitution. Confrontation rights clearly apply to statements a witness makes during a trial:  the defendant cross-examines that witness at the trial. But what about statements made by a witness before the trial?

The United States Supreme Court addressed this question in Crawford v. Washington (2004). In this case, the Court held confrontation rights apply to out-of-court statements which are “testimonial” in nature. A statement is “testimonial” if an objective person would reasonably believe the statement would be available for use at a later trial. For example, if a person makes a report to the police, that person’s statements to the police would be considered “testimonial”. According to Crawford, testimonial statements cannot be used in a criminal trial unless the accused has the opportunity to cross-examine the person who made the testimonial statement.

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Although Ohio courtrooms may not seem as dramatic and intriguing as those on C.S.I., crime laboratory tests are regularly a part of Ohio criminal cases. In Ohio DUI / OVI cases, and in drug-related cases, crime lab technicians use scientific tests to identify drugs. The lab techs write reports about the analyses and sometimes testify at trial about the tests. A recent case in an Ohio appellate court discusses the detailed procedure for using crime lab reports in Ohio DUI / OVI and criminal trials.

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The case is Kettering v. Maston. Maston was pulled over for a questionable marked lanes violation after leaving a known drug house. As one officer was writing a traffic ticket, another officer ran a drug dog around Maston’s vehicle. The drug dog alerted, and the officers searched Maston’s passenger compartment. The officers seized a container of pills which they suspected were controlled substances and charged Maston with Possessing Controlled Substances.

The officers sent the pills to the crime laboratory at the Ohio Bureau of Criminal Investigations (BCI). A laboratory technician analyzed the pills and wrote a report. The report identified the pills as Alprazolam (Xanax). The report was delivered to the prosecuting attorney.

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Most police officers probably do not go to work hoping to witness a suspect provide a urine sample. It’s likely not one of those things they go home and share with their family and friends. But it’s one of those things Ohio law requires in OVI cases. If a suspect is arrested and asked to provide a urine sample, an Ohio Department of Health regulation states, “The collection of the urine specimen must be witnessed”. The precise meaning of “witnessed” was the subject of a recent case in an Ohio court of appeals.

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The case is State v. Woltz. The defendant, Woltz, was arrested for OVI and taken to a police station. At the station, Woltz was asked to submit to a urine test, and she consented. The defendant was a female, and the arresting officer was a male. Accordingly, the officer asked a female dispatcher to witness the collection of the urine specimen. The urine specimen was given to the officer and sent to a crime lab. The crime lab analyzed the urine specimen and determined it contained marijuana, cocaine, and MDMA. Woltz was charged with OVI.

The defendant filed a motion to suppress the urine test. At the motion hearing, the female dispatcher did not testify. The officer testified that Woltz and the female dispatcher went into the women’s restroom with an empty vial and came out with a vial containing what appeared to be urine. The judge granted the motion to suppress because, without the testimony of the female dispatcher, the prosecution did not prove the urine sample was witnessed and authenticated. The prosecution appealed the judge’s ruling to the court of appeals.

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Clean hands is an obsession for some people.  In addition to frequent hand-washing, many people also use alcohol-based hand sanitizers. Aside from the potential issues with dry skin and weakened immune system (not to mention OCD!), use of hand sanitizers can also affect the results of a breath alcohol test.

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The impact of hand sanitizers on breath testing was the subject of a recent article in the Journal Of Forensic Sciences. A previous study concluded the absorption of alcohol from hand sanitizers has virtually no effect on blood alcohol concentration. The current study answered a different question: what if the hand sanitizer is on the hands of the breath test operator?

To answer the question, the researchers had breath test operators apply hand sanitizer, rub their hands until dry, and then administer breath tests to subjects who had consumed no alcohol. Part of administering the breath test is removing the disposable mouthpiece from its package and inserting it in the breath tube for the test.

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When a machine is given the power to convict a person of a crime, we should be absolutely certain the machine is working properly. In Ohio, machines are used to measure the concentration of alcohol in the breath of drivers. A driver who operates a vehicle with a breath alcohol concentration of .080 or more is guilty of OVI, even if that person’s ability to drive was not impaired by the alcohol. As breath-testing machines have that much power, the accuracy and precision of the machines is critical, so they are subjected to a weekly instrument check. A recent case by an Ohio appellate court downplays the importance of those weekly instrument checks.

The case is State v. Hicks. In that case, Hicks was arrested for OVI and taken to a police station for a breath test. The result of the breath test was over .080, so Hicks was charged with OVI ‘per se’. The defense lawyer filed a motion to suppress the breath test, and the judge held a hearing on that motion.

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Breath Testing Machines Must ‘Pass The Test’ Each Week
For a breath test result to be admissible as evidence, the prosecution must prove, among other things, at least two critical facts: (1) the machine was working properly at the time of the defendant’s test; and (2) the machine was maintained in substantial compliance with the regulations in the Ohio Administrative Code (OAC).

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Joe was arrested for DUI / OVI, and the officer had Joe take a breath test and a urine test.  The breath test showed an alcohol level under Ohio’s limit, and the urine test showed an alcohol level over Ohio’s limit.  Based on the urine test result, Joe was prosecuted for operating a vehicle with a prohibited concentration of alcohol in his system.  Should Joe be found guilty of OVI?

Test-results-300x220This scenario is not hypothetical:  “Joe” was my client.

Joe came to the attention of the officer because one of Joe’s headlights was out.  The officer turned around to follow Joe and reportedly observed Joe’s tire go over the lane line one time.  The ‘marked lanes’ violation was not recorded on video, although the remainder of the incident was.

The officer stopped Joe and noticed the odor of alcohol.  When asked, Joe explained he went to a wings restaurant and had a few beers with dinner.  The officer administered field sobriety tests, and Joe’s performance on the tests was good but not great.  The officer arrested Joe and took him to the police station.

A Tale Of Two Tests
At the police station, the officer asked Joe to submit to a breath alcohol test.  Joe gave a sample of his breath, and the breath-testing-machine produced a result of .069 (grams per 210 liters of breath);  under Ohio’s limit of .080.  The officer had Joe provide a urine sample because the officer had a hunch Joe smoked marijuana.

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A smartphone app for breath-alcohol-testing was so promising that all five investors on Shark Tank collaborated on a deal for the first time.  In 2013, Charles Yim went on the show and pitched his app to the Sharks.  The Sharks collectively invested $1 million in Yim’s company Breathometer, Inc. for 30% of the company’s equity.  Three years later, the company was the subject of an FTC complaint, and the complaint was recently settled.

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The History-Making Shark Tank Pitch
The pitch to the Sharks sounded great.  People regularly drink alcohol and then drive, and nobody knows when they are over .08.  By downloading the app and plugging in a small piece of hardware to a smartphone audio jack, consumers could blow into the hardware and know their blood alcohol concentration in seconds.  In addition, the app would tell them how much time it would take to sober up, and it could even call a cab with one push of a button.

The Sharks were intrigued.  Yim was asking for one Shark to invest $250,000 for ten percent of the company’s equity.  Mark Cuban quickly offered to invest $500,000 for 20% equity.  Yim then invited the other Sharks to join, and they did:  all five of them.  Ultimately, Cuban put up $500,000 for 15%, and the other four Sharks together put up $500,000 for another 15%.

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Over 20,000 DWI cases in New Jersey are being called into question due to problems with the recalibration of breath-testing machines.  According to New Jersey 101.5, Sgt. Marc Dennis skipped a critical step each time he recalibrated the machines.  Plaintiffs in a class-action lawsuit now seek to vacate thousands of convictions in which evidence was produced by those breath-testing machines.  Although this debacle occurred in New Jersey, it illustrates the importance of properly maintaining breath-testing machines in Ohio DUI/OVI cases.

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In Ohio DUI/OVI cases, there is a distinction between a calibration and a calibration check.  When breath-testing machines are built, the machines must be ‘taught’ to identify and quantify alcohol (ethanol).  That ‘teaching’ process is a calibration.  As a machine is being used by a law enforcement agency, the agency periodically runs a test to confirm the machine produces accurate results.  The test is done using a simulator like the one pictured here.  That periodic test is a calibration check.

Calibration checks, also referred to as ‘instrument checks’, are done at least once per week in Ohio.  The weekly instrument checks are conducted by the law enforcement agency which owns and/or operates the breath-testing machine.  Some agencies assign the responsibility to one officer, and, in other agencies, multiple officer share the responsibility of conducting weekly instrument checks.

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Today’s report regarding the conduct of a forensic scientist employed by the state of Ohio demonstrates the danger of the government enforcing laws without effective checks and balances.  Forensic scientist G. Michele Yezzo worked for over 30 years as a laboratory technician for the Ohio Bureau of Criminal Investigation (BCI).  During that time, she analyzed evidence in criminal cases and testified in court regarding those analyses.  The feature story in The Columbus Dispatch says she now, “stands accused of slanting evidence to help cops and prosecutors build their cases.”

http://www.dreamstime.com/royalty-free-stock-photo-blood-test-hand-latex-glove-holding-sample-vial-front-form-image37079485According to the newspaper report, the BCI employee stretched the truth in her analyses to satisfy law enforcement.  She even reportedly went so far as asking police officers “What do you need the evidence to say?”  Her work as a government scientist led to hundreds of criminal convictions, including serious cases involving murder and rape.  This forensic scientist’s lack of credibility calls many of those convictions into question.  It also brings attention to the issue of forensic testing in Ohio DUI/OVI cases.

In Ohio OVI cases, forensic testing at crime labs is used to detect and measure alcohol and drugs in blood and urine samples.  If a driver is arrested and the officer suspects the driver is under the influence of alcohol and/or drugs of abuse, the officer asks the driver to submit a sample of breath, blood or urine.  Breath samples are analyzed on-the-spot by a breath-testing machine.  Blood and urine samples are sent to a crime lab for analysis.

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Last week, the United States Supreme Court released a decision in a trio of cases involving DUI refusal laws.  A previous article in this blog gives a preview of the cases.  To decide the outcomes of those cases, the court analyzes whether search warrants are required before law enforcement officers can administer breath tests and blood tests.  Based on that analysis, the Court decides whether states can make it illegal to refuse chemical tests in DUI cases.  The Court’s decision will impact Ohio DUI/OVI cases.

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After considering 13 cases involving criminal refusal laws, the Court chose these three cases:  Beylund v. Levi, Bernard v. Minnesota, and Birchfield v. North Dakota.  These three cases were apparently chosen because they have three varying scenarios.  Beylund claimed his consent to a blood test was coerced because he was told he would be punished for refusing the test.  Bernard challenged his conviction for refusing a breath test.  Birchfield argued his conviction for refusing a blood test was unconstitutional.  The Court issued one opinion for all three cases under the caption of Birchfield v. North Dakota.

The Birchfield opinion analyzes the Fourth Amendment issues.  The Court confirms that both breath tests and blood tests are ‘searches’ within the meaning of the Fourth Amendment.  Fourth Amendment law presumes a warrantless search is unreasonable.  Accordingly, for a law enforcement officer to administer a blood test or a breath test, there must be a search warrant or a recognized exception to the search warrant requirement.

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