SAMPLES OBTAINED BY POLICE (BREATH, BLOOD AND URINE)
Statutory Exclusionary Rule – R.C. 4511.19(D)(1)(b). Applicable in any criminal prosecution for OVI-Impaired, OVUAC, or OVI Per se. See also State v. Mayl, 106 Ohio St.3d 207, 2005-Ohio-4629, which clarifies it extends to all offenses which have OVI as an element.
Court may admit evidence of the concentration of alcohol in bodily substance at time of alleged violation, as shown by chemical analysis of the substance withdrawn within three hours of alleged violation if…
- Person submits to bodily substance test at the request of officer under Implied Consent (R.C. 4511.191), through actual consent, or if sample obtained pursuant to search warrant and…
- Substance is analyzed in accordance with methods approved by ODH by person possessing a valid permit issued by ODH.
- Analyzed in accordance with methods approved by ODH means the methods contained in OAC 3701-53-01 to 11. Last amended 1-23-2023.
- If Defendant challenges result under Statutory Exclusionary Rule, done through a MTS. State v. French, 72 Ohio St.3d 446 (1995).
- If Defendant makes specific challenge, state must show substantial compliance with the provision at issue. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372. Substantial compliance requires showing that any errors were minor procedural (de minimis).
- If court decides to admit test result, defendant may challenge at trial under Rules of Evidence. Evidentiary objections challenging the competency, admissibility, relevancy, authenticity, and credibility of the result may still be raised. French.
WHEN EXPERT TESTIMONY IS RQUIRED EVEN THOUGH SUBSTANTIAL COMPLIANCE IS SHOWN.
- If a person is charged with OVI-Per Se (at or over the limit for 21 and older) and substantial compliance is shown, the trier of fact is not required to find that the defendant operated while impaired, but only that defendant operated with a test result at the proscribed level. In a per se case, the critical issue is the accuracy of the test, not the behavior of the accused. Thus, there is no need for expert testimony to relate the numerical figure (test result) with the common understanding of being under the influence of alcohol. Newark v. Lucas, 40 Ohio St.3d 100 (1988).
- If bodily substance not withdrawn within three hours of alleged violation the result cannot be admitted to prove a per se violation. Lucas.
- If bodily substance not withdrawn within three hours of alleged violation but substantial compliance shown, test result admissible if accompanied by expert testimony to relate the test result to the defendant and to the time of the alleged violation, as well as to relate the result to the common understanding of what it is to be under the influence.
- Expert testimony required in non-per se cases as the primary issue is defendant’s ability to perceive, make judgments, coordinate movements and safely operate vehicle. The test result, if probative, is merely considered in addition to all other evidence of impaired driving in an OVI-Impaired prosecution. Lucas.
- If OVI-Impaired charge but no OVI-Per Se charge, test result cannot be admitted without showing of substantial compliance (if challenged) and expert testimony as required by Lucas. See also, State v. Blair, 5th Dist. Morgan County No. 22 AP 0005, 2023-Ohio-291.
SAMPLES OBTAINED BY HEALTH CARE PROVIDERS FOR DIAGNOSTIC PURPOSES.
Statute Governing – R.C. 4511.19(D)(1)(a). In a criminal prosecution for a violation of R.C. 4511.19(A)(1)(a) the result of any test of blood withdrawn and analyzed by health care providers may be admitted with expert testimony to be considered with any other relevant and competent evidence in determining the guilt or innocence of defendant.
• By its express language only applies to OVI-Impaired.
• Blood must be withdrawn and analyzed by health care provider.
• Showing of substantial compliance is not a condition of admissibility.
• Must be accompanied by expert testimony.
• Result may be admitted, Judge’s discretion. File a Motion in Limine challenging reliability if there is an issue with the withdrawal, handling or analysis of sample.
• If result and expert testimony admitted, weight of evidence can be attacked.
PROPER WAY OF OBTAINING MEDICAL RECORDS CONTAINING RESULTS OF DIAGNOSTIC BLOOD TEST.
• In the past, law enforcement relied on R.C. 2317.02(B)(2)(a) to get the records. It states in essence that law enforcement can submit a written statement to a health care provider stating that a criminal proceeding has been commenced and requesting copies of any records that pertain to any test or results of any test of the suspect to determine the presence or concentration of alcohol or a drug of abuse in the person’s blood.
• The above method of obtaining records of test result has come under attack for several reasons, as follows:
• R.C. 2317.02 contains the physician-patient privilege. That is a trial privilege that states a physician shall not testify in certain respects concerning a communication made to a physician.
• The statutory provision permitting law enforcement to obtain medical records of test result precludes a health care provider from supplying those records “…to the extent specifically prohibited by any law of this state or of the United States…”
• A person has a protected expectation of privacy in his medical records. Ferguson v. City of Charleston, 532 US 67 (2001). When the police request those records the Fourth Amendment provision against unreasonable seizures applies.
• The physician-patient privilege applies to the admissibility of properly obtained evidence at trial. The Fourth Amendment protection against the government’s unauthorized invasion into a person’s medical records applies to the government’s ability to obtain the evidence. State v. Little, 3rd Dist. Auglaize County No. 2-13-28, 2014-Ohio-4871.
• The following cases held that a search warrant, not R.C. 2317.02(B)(2)(a), is the only way to obtain medical records of blood (alcohol and/or drug of abuse) test results: Little; State v. Rogers, 10th Dist. Franklin County No. 21 AP-546, 2023-Ohio-2749; State v. Saunders, 5th Dist. Morrow County No. 17 CA 0001, 2017-Ohio-7348; and, State v. Clark, 3rd Dist. Hancock County No. 5-13-34, 2014-Ohio-4873.