The Ohio Supreme Court held that, despite the administrative code requiring refrigeration of urine and blood samples, the State substantially complies if the samples are unrefrigerated for as long as five hours, while providing clarification for the burden shifting tests for substantial compliance with OVI testing.
February 10, 2016
Baker was arrested for an OVI and had a blood specimen drawn. Although the Ohio Administrative Code requires blood and and urine specimens to be refrigerated when not in transit or under examination, Baker's blood sample was not refrigerated for four hours and ten minutes before being placed in transit. The sample ultimately showed a level of 0.095 grams by weight of alcohol per one hundred milliliters (grams percent) of whole blood. The trial court granted Baker's motion to suppress the results, finding that the failure to refrigerate for four hours was not di minimis. On appeal, the Eleventh District affirmed the suppression.
On this appeal, the Ohio Supreme Court observed that it had in a prior case held that failure to refrigerate for as much as five hours was substantial compliance. The court then clarified the burden shifting test used with regard to alcohol testing:
A defendant must first challenge the validity of the alcohol test by way of a pretrial motion to suppress evidence; failure to file such a motion "waives the requirement on the state to lay a foundation for the admissibility of the test results." State v. French, 72 Ohio St.3d 446, 451, 650 N.E.2d 887 (1995). The state then has the burden to show that it substantially complied with regulations prescribed by the director of health in the Ohio Administrative Code. If the state meets its burden of going forward with the evidence in this regard, a presumption of admissibility arises, and the burden then shifts back to the defendant to rebut the presumption by demonstrating prejudice from the state's failure to strictly comply with the applicable regulations in the Ohio Administrative Code.
The Court also clarified that, "if the state demonstrates substantial compliance with the regulations for collecting, handling, and testing specimens, the court should afford the defendant an opportunity to go forward with evidence to rebut the presumption of admissibility by demonstrating that the failure to strictly comply may have caused an unreliable test result that does not properly measure alcohol content in the specimen."
Thus, although the Court held that there was substantial compliance in this case, it remanded the case to allow Baker the opportunity to rebut the presumption of admissibility.