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State v. Endsley10/19/2005
e state also presented evidence of proper chain of custody and there was no evidence of tampering.
{ } The Court concluded that the burden was on the state to show substantial compliance with R.C. 4511.19(D)(1) and Ohio Adm.Code Chapter 3701-53 before the test results were admissible. Id. at . In discussing substantial compliance, the Court, quoting from State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71 stated:
{ } "' igid compliance with the Department of Health regulations is not necessary for test results to be admissible. * * * To avoid usurping a function that the General Assembly has assigned to the Director of Health, however, we must limit the substantial compliance standard set forth in [State v.] Plummer [(1986), 22 Ohio St.3d 292, 490 N.E.2d 902]to excusing only errors that are clearly de minimis. Consistent with this limitation, we have characterized those errors that are excusable under the substantial-compliance standard as "minor procedural deviations."'" Id. at , quoting Burnside, at .
{ } The Court concluded that in several instances where Mayl alleged deviations from the ODH regulations, there was substantial compliance. These deviations included the failure to refrigerate the sample for one hour and 45 minutes prior to testing and the use of a gel anticoagulant as a solid. Id. at , fn. 2.
{ } But the Court also concluded that two of the alleged deviations did not meet the substantial compliance standard. Mayl also challenged the lack of permits from the Director of Health and the lab's failure to maintain the blood sample for one year. The Court found that while the lab, the vice president of operations for the hospital lab, and the lab technician who tested Mayl's blood may have qualified for permits under Ohio Adm.Code 3701-53-07(A), they did not apply for or have them. Additionally, the Court found that disposing of the blood sample within three to five days after testing was not substantial compliance with Ohio Adm.Code 3701-53-06(A), which requires the lab to save the sample for a year. The Court concluded, " e cannot excuse the absence of the proper permits and the disposal of the sample within a matter of days as minor procedural deviations. Consequently, the state has not shown substantial compliance with ODH regulations." Id. at .
{ } The Court then went on to address the state's argument that it was not required to show that the blood test complied with ODH regulations because Mayl submitted to the test as part of his medical treatment, not at the request of law enforcement. Thus, the state contended that tests performed as part of medical treatment were not covered by R.C. 4511.19(D)(1). The Court rejected this argument reasoning that R.C. 2317.02(B)(2), which waives the patient-physician privilege when law enforcement seeks to obtain certain test results, does not exempt a hospital from complying with the R.C. 4511.19(D)(1) testing standards. Id. at .
{ } Finally, the Court noted that R.C. 4511.19(D)(1) applies to all prosecutions requiring proof of a violation of R.C. 4511.19(A) or (B). The Court stated that it does not matter whether the prosecution is pursued as a "per se" violation or an "under the influence" violation. Id. at .
{ } Thus, in this case the state was required to show substantial compliance with R.C. 4511.19(D)(1) and the applicable ODH regulations in order for the blood test results to be admissible. The state failed to do so.
{ } Nicholas O'Donnell testified for the state at appellant's suppression hearing. He is the chief of pathology and the director of chemistry and toxicology at Summit Pathology and Associates, which contracts its se
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