 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Endsley10/19/2005
a criminal prosecution for a violation of R.C. 4511.19(A)(2), (3) or (4) , the results of a properly administered bodily substances test are admissible only if the bodily substance is withdrawn within two hours of the time of the alleged violation. However, it further held that in a criminal prosecution for violation of R.C. 4511.19(A)(1), the results presented with expert testimony may be admissible despite the fact that the bodily substance was withdrawn more than two hours from the time of the alleged violation. Id. at paragraph two of the syllabus.
{ } The Court explained the reasoning for this distinction by noting:
{ } "In prosecutions for violations of such sections [as R.C. 4511.19(A)(1)], the amount of alcohol found as a result of the chemical testing of bodily substances is only of secondary interest. See Taylor, Drunk Driving Defense (2 Ed.1986) 394, Section 6.0.1. The defendant's ability to perceive, make judgments, coordinate movements, and safely operate a vehicle is at issue in the prosecution of a defendant under such section. It is the behavior of the defendant which is the crucial issue. The accuracy of the test is not the critical issue as it is in prosecutions for per se violations." Id. at 104.
{ } In the present case, the crash occurred at 4:43 a.m. (Tr. 16). The exact time appellant's blood sample was taken was not known. However, it was sometime between 6:20 a.m. and 7:04 a.m. (Tr. 39-40). Since appellee could not demonstrate that the blood was drawn within the two-hour limit, it seems that the test results were not admissible to show a violation of R.C. 4511.19(A)(1)(b), (c), or (d).
However, as the trial court found, the results may have been admissible, with expert testimony, as evidence in establishing a violation of R.C. 4511.19(A)(1)(a).
{ } But appellant argues that while results of a properly administered blood test may be admissible with expert testimony despite a violation of the two-hour rule, this is only the case when the two-hour limit is the only violation of the Ohio Department of Health (ODH) regulations or other statutory requirements. Appellant argues that he presented evidence that the blood sample was not taken in accordance with ODH and statutory requirements. He also points to a footnote in Lucas, where the Court noted that the prosecution must also establish that the test was properly administered and analyzed in accordance with the remainder of R.C. 4511.19(B) . Id. at fn. 7.
{ } Appellant alleges numerous violations of the ODH regulations including: the lack of a tamper proof seal, no chain of custody, the lack of a valid LT permit for the laboratory technician who analyzed the sample, failure to preserve the sample for one year, and the failure to inform him or his family that they had the right to have the blood sample preserved for independent testing. Appellant basically takes issue with the fact that appellee may not have shown substantial compliance with R.C. 4511.19(D)(1). This section provides:
{ } "In any criminal prosecution or juvenile court proceeding for a violation of division (A) or (B) of this section or for an equivalent offense, the court may admit evidence on the concentration of alcohol, drugs of abuse, or a combination of them in the defendant's * * * blood * * * or other bodily substance at the time of the alleged violation as shown by chemical analysis of the substance withdrawn within two hours of the time of the alleged violation.
{ } "When a person submits to a blood test at the request of a law enforcement officer * * *, only a physician, a registered nurse, or a qualified technician, chemist, or phlebotomist shall withdraw blood for th
Page 1 2 3 4 5 6 7 8 9 10 11 Ohio DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|