WHAT IS THE IRONY OF URINE TESTING IN OHIO DUI/OVI CASES?

Most states acknowledge urine testing is not an accurate way to measure blood alcohol concentration, and Ohio is one of the few states which still uses urine alcohol testing for DUI/OVI cases. Ohio law makes urine tests admissible in court so long as law enforcement agencies follow state regulations. Some of those regulations address scientific reliability, and some of those regulations address administrative issues. As a result, urine tests are often inadmissible, not because they are scientifically unreliable, but because the government did not follow its own rules.

Ohio law makes urine tests admissible in DUI/OVI cases. Ohio Revised Code section 4511.19(D) states urine tests may be admitted as evidence if the urine sample is analyzed in accordance with regulations approved by the Ohio Director Of Health. The regulations approved by the Director Of Health (DOH) are found in chapter 3701-53 of the Ohio Administrative Code.

Some Ohio regulations for urine testing promote reliable test results. For example, the regulations establish what testing methods are acceptable (e.g., gas chromatography and immunoassay) and require confirmatory testing by an additional method. The regulations also require that testing methods have documented sensitivity, specificity, accuracy, precision and linearity.

Some Ohio regulations for urine testing are more administrative in nature. For example, the regulations require that urine specimens are collected in a certain type of container with a certain type of lid. The regulations further require that the container have a label which contains certain information. The regulations also contain requirements for record keeping, laboratory accreditation, and laboratory personnel permits.

For a urine test to be admissible as evidence in a DUI/OVI trial, law enforcement must comply with the DOH regulations. If a defendant files a motion to suppress the urine test based on the regulations, the prosecution has the burden of proving substantial compliance with the regulations. A recent case of mine is a good illustration of how this plays out in court.

My client was arrested for OVI, submitted a urine sample, and the result was reported as .123. We filed a motion to suppress the urine test, and the laboratory technician who performed the urine test was subpoenaed to court for our motion hearing. The prosecutor and I met with the lab tech before the hearing started. The lab tech opened the bag containing the urine sample…[insert dramatic music here]…the label on the jar did not contain the name of the suspect or the date and time the specimen was collected. The prosecutor agreed the urine test would be suppressed, and the OVI charge was reduced to a lesser offense.

This case demonstrates the irony inherent in Ohio’s urine testing system. The truth is my client’s urine test shouldn’t be used against him because it has doubtful accuracy, and we don’t want to convict people based on inaccurate tests. The lack of accuracy, however, is not what made the urine test inadmissible. Instead, the urine test was going to be inadmissible because the officer overlooked writing some basic information on a label. I think most people would say my client ‘got off on a technicality’: the reality is this was the right result, but probably for the wrong reason.

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The Basics of Blood Alcohol Testing by Gas Chromatography - Part I

September 19th, 2014 Allen Trapp Posted in Blood Test, Chemical Test |

The first stage of sample testing is the injection of the sample into the injector port. The sample is introduced into the injector port with a syringe or an exterior sampling device known as a pipette. The injector port is a hollow, glass-lined cylinder that is heated to 150-250°C which causes the sample to vaporize.

Most blood alcohol analyses are performed via headspace gas analysis as opposed to direct injection. A small amount (approximately 0.10 milliliters) of blood is diluted with water to about 1.0 milliliter in volume. The sample is placed in a sample vial and the cap is crimped and placed in an auto sampler with an incubating chamber set at a constant temperature. When the sample has reached equilibrium (when the rate of ethanol evaporation equals the rate of condensation in the sample vial), a sample of the gas above the liquid is withdrawn and injected into the gas chromatograph.

At this stage of the analysis Henry’s Law is in effect. Henry’s Law is a chemical principle that describes therelationship of volatile compounds in dilute aqueous solution at equilibrium.  Next, the vapors of the sample are carried into the column by a carrier gas.  The transportation of the vapors by the carrier gas, usually hydrogen, helium, or nitrogen is frequently referred to as the mobile phase. The carrier gas flows into the injector port, through the column, which is maintained by a temperature controlled oven, and then into the detector. The solutes travel through the column at a rate primarily determined by their physical properties, and the temperature and composition of the column. The column is packed or coated. This is commonly referred to as the stationary phase.

Written by Allen Trapp who is board certified by the National College for DUI Defense and the author of Georgia DUI Survival Guide Visit Website

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The Basics of Blood Alcohol Testing by Gas Chromatography - Part II

September 19th, 2014 Allen Trapp Posted in Blood Test, Chemical Test |

The various solutes travel through the column at different rates. The fastest moving solute exits (elutes) the column first then is followed by the remaining solutes in corresponding order. After the compounds have been eluted from the end of the column, they must be detected, one at a time. As each solute elutes from the column, it enters the heated detector. An electronic signal is generated upon interaction of the solute with the detector. The size of the signal is recorded by a data system and is plotted against elapsed time to produce a chromatogram.

The plot created by this process is called a chromatogram. The size of the signal is proportional to the amount of a compound in the sample. In conjunction with the data recorder, an integrator is frequently used to provide measurements of the height of the compound’s signal and the time that it took for the compound to elute through the column and reach the detector.  While many types of detectors exist, the most common detector used for the blood alcohol analysis is the flame ionization detector. The flame ionization detector simply burns each organic compound as it elutes from the column. As the compound burns, it produces an electrical signal. The electrical signal is displayed as a “peak” with a known retention time. The period of time between injection and reaching the detector is referred to as the retention time.

The retention time of a compound alone is insufficient to identity of compound. The retention time of a known compound must be compared to the retention time of the unknown compound to determine if the known compound also exists in the testing sample. By comparing the retention time of the compound to a known standard, the compound can be identified. Identifying the compound is the qualitative portion of the analysis.

The concentration of alcohol in a sample is measured by comparing the size of the peak produced by the testing sample to the size of the peak produced by different known concentrations of alcohol.   Measurement of the amount of the compound in the sample is the quantitative portion of the analysis.  Each compound has a different retention time with a particular mobile phase, stationary phase, and temperature. If testing conditions change, identifying the compound is not possible. Therefore, the instrument must be periodically tested with a known specimen to ensure the testing conditions have not changed and the calibration of instrument remains intact.

Written by Allen Trapp who is board certified by the National College for DUI Defense and the author of Georgia DUI Survival Guide Visit Website

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Fort Lauderdale DUI Attorney on Alcohol Testing Accuracy

The accuracy of breathalyzer machines has been hotly disputed since states began to use them in the 1930s, according to Fort Lauderdale DUI lawyer William Moore. Numerous factors can cause false positives or otherwise affect results, such as:

* diabetes
* acid reflux disease
* cigarette smoking
* eating bread
* mouth alcohol
* breathing pattern or hyperventilation
* other reasons

Breath testing is not the most reliable method of evaluating the amount of alcohol in someone’s body at a given time. It also does not measure for any other factor or substance that could cause impairment, such as Xanax or other prescriptions, or illegal drugs, says Broward DUI lawyer Moore. States have coped with the issue of reliability in different ways. In some states, law enforcement officers routinely carry handheld breath alcohol screening devices, which may give the police probable cause to arrest a DUI suspect if the driver has a positive test result. In most cases, these results are not admissible in court because they are not sufficiently reliable. Florida is not one of the states that uses handheld breathalyzers.

Urine testing is often used by law enforcement when they believe that the suspect may be driving under the influence of substances other than alcohol. Urinalysis can screen for common prescription and illegal drugs. For instance, a the police might determine that a person appears to have been drinking, but after he blows a 0.03, they conclude that his apparent level of intoxication is higher than would be expected from such a relatively low breath test. They may therefore request urinalsysis, which shows that he also has prescription pain medication in his system. Since urinalysis does not quantify the amount of a substance in a person’s system, its usefulness is limited: the state may not be able to prove that the person’s prescription medication was at a high enough level to cause impairment.

South Dakota uses blood testing only due to its higher level of accuracy and reliability. Blood testing often results in delays, as the police must transport the subject to a location where blood can be drawn. Nonetheless, it provides a more accurate picture of the amount of alcohol in the person’s systems, as well as other substances, because a blood test will quantify other drugs. Therefore, a blood test will show whether prescription drugs were taken at a therapeutic level or a higher dosage.

Drivers in the state of Florida do not have their choice of which test to submit to. Although the first refusal to submit to a test is not a crime, it can result in administrative penalties. Operating a motor vehicle in the state of Florida means that a person has consented (via implied consent) to submission to testing.

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