- June 13, 2018 |
- Category: DUI Testing
Chemical testing of a suspected DUI driver for the presence of alcohol or drugs plays a major role in Ohio drinking and driving cases. Chemical testing may be conducted on one of the following bodily substances: (a) breath; (b) whole blood; (c) blood serum; (d) plasma; and (e) urine. Under R.C. 4511.19(A)(1)(b) to (i), there are several “per se” offenses based upon specified levels of alcohol in a person’s body. In addition, R.C. 4511.19(A)(j) defines “per se” offenses according to prohibited levels of certain controlled substances and metabolites. The elements of these DUI charges include: (1) operation of a vehicle; (2) while having a prohibited level of alcohol or substance in their body. Whether the driver was impaired or not is irrelevant. The successful prosecution of these cases generally rests on the admissibility of the chemical test results.
The results of chemical tests also have evidentiary value in a simple OVI offense under 4511.19(A)(1)(a), the impairment section of the DUI statute. In these cases, the presence of a certain level of alcohol or drug is not an element of the offense, however, the test results are admitted into evidence and the jury is to consider test results along with all the other evidence in the case.
So how does the prosecution obtain this type of evidence? The most common way is when law enforcement simply asks a suspect for a chemical sample during the DUI investigation. Another way law enforcement may obtain a chemical sample in a DUI case is a forced blood draw for certain repeat offenders. In still other cases, the police may obtain a search warrant for a blood draw or obtain a warrantless chemical sample under exigent circumstances. In extremely rare cases, where the suspect is unconscious or even dead, the law permits law enforcement to obtain a chemical sample without getting the person’s consent.
The admission of test results in a DUI case is regulated by a number of sources. The DUI statute provides three means for the admission of a test.
The first is through R.C. 4511.19(D)(1)(a), which allows the admission of any blood or urine sample withdrawn and analyzed by a health care provider if accompanied by expert testimony. The test is admissible only in the prosecution of a R.C. 4511.19(A)(1)(a) case, or any equivalent vehicle-related offense.
The second is through R.C. 4511.19(D)(1)(b), which provides for the admissibility of a DUI suspect’s blood, breath or urine where submission to the test is obtained under the implied consent provisions of R.C. 4511.191, or a blood or urine sample is obtained by search warrant approved by a judge. In order for these samples to be admissible, the sample must be withdrawn and analyzed in accordance with methods approved by the director of health and performed by a person possessing a valid permit. The test must be admitted under this section in order to prove a BAC offense. For tests obtained under this section to be admitted in a per se DUI case, there are strict time limitations for law enforcement to request a suspect’s consent and for the test to be administered. The test must also comply with provisions of the Ohio Administrative Code which is overseen by the Ohio Director of Health and sets forth the personnel, equipment and procedures for obtaining and testing the chemical sample.
The third is through R.C. 4511.19(D)(2), which provides for the admission of test results below the per se limitations in the prosecution of an impairment case under R.C. 4511.19(A)(1)(a). Finally, each chemical test allowed by law has its own equipment and manufacturer’s protocol that must be followed in order for the sample to be admissible.
DUI suspects can challenge the admissibility of these tests by using a motion to suppress based upon the government’s: (a) failure to to obtain the test or test results in a lawful manner; or (b) failure to comply with the Ohio Administrative Code provisions as set forth by the Department of Health; or (c) failure to comply with the requirements set for the by the legislature in the Ohio DUI statutes. However, in cases where test results are improperly admitted, the failure of the trial court to keep the results out of evidence may be considered to be harmless if other evidence exists to support the conviction.
This entry was written with the assistance of the publication “Ohio Driving Under the Influence Law” written by Judge Jennifer P. Weiler and Kevin P. Weiler Sr.
If you have a DUI case where the government took a chemical sample to measure your blood alcohol concentration, an experienced DUI lawyer can use many of these arguments to try to get the test results dismissed. However, even when BAC test results are admitted into evidence at a DUI trial, a defense lawyer may challenge the documentary and testimonial evidence related to the test. These challenges include constitutional and case law arguments based in due process, hearsay and the right to confrontation. In addition, an experienced DUI lawyer will know to advocate the weight to be given to any test ultimately admitted into evidence. If you have a DUI case where a sample of your bodily substance was tested and is now being used against you, contact a DUI lawyer to discuss your options.
