The United States Supreme Court recently heard oral arguments in the case of Mitchell v. Wisconsin. As this blog discussed previously, this the third case in a series of cases dealing with whether the police can take a DUI/OVI suspect’s blood without a search warrant. The questions and statements from the bench during the oral argument may telegraph how each justice views the issue. However, in our experience, it is difficult to predict the outcome of a case based on the oral arguments.
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.