Substantial Compliance Strikes Again: Ohio Supreme Court Creates A Blanket Rule For Blood Test Admissibility In OVI Cases

Legendary rock n’ roller Frank Zappa once said “The United States is a nation of laws: badly written and randomly enforced.”  After reading State v. Baker, 2016-Ohio-451, I could not agree more with Frank’s sound advice.  After all, Frank is full of good advice.  Don’t forget his warnings about not eatting the yellow snow.

In Baker, a pedestrian was struck and killed by the vehicle Baker was driving.  Ohio State Trooper Emery was dispatched to the scene to investigate.  Upon arrival to the scene, Trooper Emery made contact with Baker and instructed him to fill out crash statement form in his cruiser while he began his investigation.  Some point during his investigation, Trooper Emery walked backed to his cruiser to check on Baker.  It was at this time that Trooper Emery detected a strong odor of alcohol on Baker.  When asked about the alcohol, Baker told Emery that he had six or seven beers and was coming from a party.

After hearing Baker’s admission and given the death of a pedestrian, Trooper Emery transported Baker to the local hospital to administer Field Sobriety Tests and to conduct blood test for alcohol.  The hospital drew Baker’s blood and gave the OVI blood kit back to Trooper Emery.  The OVI blood kit contained two tubes of Baker’s blood.

With OVI Kit in hand, Trooper Emery headed back to his post to finish paperwork.  The OVI blood kit, however, remained in Trooper Emery’s cruiser for four hours and ten minutes prior to sending the OVI Kit to the Ohio Highway Patrol Crime Laboratory in Columbus.  At no time was the specimen refrigerated prior to its shipping.  Baker’s blood test result was .095 grams by weight of alcohol per one hundred milliliters (grams percent).

Based on Trooper Emery leaving the OVI Kit in his cruiser for a significant amount of time without refrigerating it, Baker moved to have the blood-alcohol test suppressed pursuant the Ohio Department of Health’s regulations on blood samples.  At the suppression hearing, Trooper Emery testified that he could have refrigerated the blood sample, but did not do so because it is not the highway patrol’s usual procedure.

The trial court agreed with Baker and suppressed the blood-alcohol result due to Trooper Emery’s failure to refrigerate the blood sample.  Not happy with this result, the state took it up with the appellate court.  The appellate court upheld the trial court, but it was split on the consequence of violating the Ohio Department of Health’s regulation.  Being 0-2 on getting this blood-alcohol test into evidence, the state filed with the Ohio Supremes to get their opinion on the matter.

With that, the Ohio Supremes were asked once again to figure out the admissibility of a blood test sample that was not refrigerated prior to transportation.

So this Ohio Department of Health regulation is codified under Ohio Administrative Code 3701-53-05(F).  This regulation states in an unambiguous manner, “While NOT in transit or under examination, all blood and urine specimens SHALL be refrigerated.” (emphasis added).  Pretty simple right??  Well leave it up to the courts to screw this up and make a blanket rule that states failure to refrigerate a blood or urine sample is not a de minimis error as long as the non-refrigeration time does not exceed a five hour time period.

The Ohio Supremes came up with this court-made rule based on State v. Plummer, 22 Ohio St.3d 292, and State v. Mayl, 106 Ohio St.3d 207.  In Plummer, the blood specimen was unrefrigerated for approximately one and half hours.  Interesting to note though is that the blood specimen was packaged, labeled, and delivered to the mail drop.  I am guessing that would be considered “in transit.”  In any event, the Plummer court held that three-to-four hour interval without refrigeration did not render the test results inadmissible.  Mayl had nothing to do with pre-transit refrigeration, but just cited to Plummer in its decision.  May, in a footnote, stated “failure to refrigerate a sample for as much as five hours has been determined to substantially comply with Ohio Admin Cod 3701-53-05(F).

So there you have it folks!  Non-refrigeration of a blood specimen that is pre-transit is good to go as long as it is under five hours.  If a police officer succeeds in accomplishing that task, he or she is in substantial compliance with the Ohio Department of Health’s regulation.

Now some might be thinking, what is the point of refrigeration of a blood or urine specimen if during actual transit to a laboratory there is no refrigeration requirement?  Chief Justice O’Connor addressed that very issue in her concurring opinion.

First and foremost, Chief Justice O’Connor cautioned against a blanket-rule approach and expressed her concern of the short comings of Ohio Admin Code 3701-53-05(F).  Moving past this, Chief Justice O’Connor questioned if while the specimen is in transit, does the ambient temperature relevant?  If the answer is yes, then Chief Justice O’Connor opined that substantial-compliance determination should take into account whether the unrefrigerated sample was stored in a hot car or in a climate-controlled building.  With those thoughts, Chief Justice O’Connor stated that courts need more guidance from the Ohio Department of Health to determine these questions.

I agree with Chief Justice O’Connor that the Ohio Department of Health needs to come out with better guidance with regards to refrigerated versus non-refrigerated blood specimens.  Hell, I get more guidance from my local liquor store on what happens to beer when it goes from a refrigerated environment to a non-refrigerated environment then back to a refrigerated environment.  And the owner even posts this information on the door of their walk-in beer cooler!  What can I say…my local liquor store is legit.

Looking at Baker, I believe it to be utterly absurd that it is okay for police to be laissez faire when deciding whether or not to follow a codified regulation from the Ohio Department of Health.  As Justice O’Neill stated in his dissent, “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 lightly.”

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