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State v. Endsley10/19/2005
rvices to Summa Health Systems. In his professional capacity, O'Donnell oversees the toxicology lab that analyzed appellant's blood sample.
{ } O'Donnell testified that he holds director permits for alcohol and drug testing issued by the ODH. (Tr. 36). Additionally, he stated that the lab is accredited by the College of American Pathologists. (Tr. 38). O'Donnell himself did not analyze appellant's blood, but he supervises the technician who did. (Tr. 45). He reviewed appellant's chart and concluded that the lab's "standard operating procedure" was followed. (Tr. 38).
{ } But O'Donnell also testified to the following. Typically, the lab retains toxicology samples for four to six weeks. (Tr. 44). He opined that this standard procedure was followed in this case. (Tr. 44).
{ } Ohio Adm.Code 3701-53-06(A) provides in part: "All positive blood, * * * shall be retained in accordance with rule 3701-53-05 of the Administrative Code for a period of not less than one year, after which time the specimens may be discarded unless otherwise directed in writing from a court."
{ } O'Donnell's testimony indicated that appellant's sample was likely retained for only four to six weeks. In Mayl, the sample was retained for only three to five days after testing. The Court concluded that such a short retention time could not be considered substantial compliance with Ohio Adm.Code 3701-53-06(A). While in this case the lab retained the blood sample for a longer time than in Mayl, retention of four to six weeks cannot be considered substantial compliance with a regulation that calls for retention for one year.
{ } Additionally, O'Donnell testified that the lab technician who performed the test was a medical technologist with a four-year degree. (Tr. 45). However, he stated that the technologist did not have a valid laboratory technician (LT) permit as issued by the ODH. (Tr. 48). O'Donnell stated that while the technician met the requirements to obtain the LT permit, she never applied for or obtained the permit. (Tr. 50-51).
{ } Ohio Adm.Code 3701-53-07(A) provides: "Blood * * * tests for alcohol shall be performed in a laboratory by an individual who has a laboratory director's permit or, under his or her general direction, by an individual who has a laboratory technician's permit."
{ } Like the technician in Mayl, the technician here, although quite likely qualified to test blood for medical purposes, never applied for or obtained the proper permit under Ohio Adm.Code 3701-53-07(A). The Court found that it could not excuse the absence of proper permits as a minor procedural deviation.
{ } Finally, O'Donnell testified that a chain of custody was not maintained for appellant's blood sample. (Tr. 43). He stated that this was considered a standard medical case. (Tr. 43). O'Donnell testified that chain of custody is reserved for forensic cases. (Tr. 43).
{ } Ohio Adm.Code 3701-53-06(A) provides in part: "Chain of custody and the test results for evidential alcohol and drugs of abuse shall be identified and retained for not less than three years, after which time the documents may be discarded unless otherwise directed in writing from a court."
{ } Since O'Donnell plainly stated that the lab did not maintain a chain of custody for appellant's sample, there is no way that the state could show substantial compliance with this requirement.
{ } Given the failure to maintain the blood sample for a period even close to one year, the lab technician's absence of a proper permit, and the nonexistent chain of custody, we cannot conclude that there was substantial compliance with ODH regulations. Consequently
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