Third District holds that an individual receiving treatment after an auto accident can refuse a blood alcohol test by the police, but the health care provider's own blood test used for treatment will still be admissible even if it does not substantially comply with ODH regulations like the police test would have to.

State v. Persinger, 2016 Ohio 858 (3d Dist.).

http://www.supremecourt.ohio.gov/rod/docs/pdf/3/2016/2016-Ohio-858.pdf

March 7, 2016

Persinger was involved in an automobile accident, transported to a hospital, and refused a blood test when requested by an officer. The hospital, however, performed a blood test as part of his treatment. After he was charged with aggravated vehicular homicide charges, aggravated vehicular assault, and operating a vehicle under the influence, he filed a motion to suppress. The Trial Court, however, allowed the introduction of his blood test results, "with appropriate expert testimony and subject to 'demonstrating the reliability of the results.'"

The State acknowledged that the blood tests were not given in substantial compliance with ODH regulations; however, it argued substantial compliance was not required because the tests were performed by the hospital rather than law enforcement.

The Third District reviewed that the Ohio Supreme Court had addressed this issue in 2005, holding that the State must show that tests, even if performed by a hospital, must be in substantial compliance. State v. Mayl, 106 Ohio St.3d 207, 2005-Ohio-4629, 833 N.E.2d 1216 (2005). However, R.C. 4511.19 was revised in 2007 to say that tests performed by a health care provider "may be admitted with expert testimony to be considered with any other relevant and competent evidence in determining the guilt or innocence of the defendant." Courts, therefore, have allowed tests without substantial compliance by health care providers for general OVI citations, though not for per se citations (i.e., those that depend on a specific level of blood alcohol content). The Third District adopted the holdings of these cases, eliminating the need to show substantial compliance with ODH regulations when the tests are administered by health care providers.

If you are interested in criminal defense services, or have been charged with an OVI, consider reviewing our DUI Defense Services at http://SivinskiLegal.com