Is a blood sample – obtained as the result of a DUI investigation – rendered inadmissible if the sample is not kept refrigerated in strict compliance with Ohio Administrative Code regulations? That’s the issue that came before us – the Ohio Supreme Court – in a case that involved a man named Michael Baker.
At around midnight on March 6, 2011, Trooper Charles Emery of the Ohio State Highway Patrol responded to a call of a pedestrian walking eastbound in a westbound lane of U.S. Route 6 in Ashtabula County. While en route, Emery learned that the pedestrian had been struck and killed by a vehicle.
Michael Baker was the driver that struck the pedestrian. While Baker sat in Emery’s cruiser completing a crash statement, Emery investigated the scene. When Emery returned, he detected a strong odor of alcohol. He asked Baker if he’d been drinking, and Baker said he’d had six or seven beers and was coming from a party when the accident occurred.
Emery administered a sobriety test and read Baker his Miranda rights, but did not arrest him. Baker agreed to provide a blood sample at a hospital, without a search warrant.
At the emergency room Baker consented to having his blood drawn. At 1:50 a.m., a hospital paramedic drew Baker’s blood, placed it in two tubes from a kit that Emery supplied and handed the tubes to Emery, who put them in a sealed box.
Emery drove Baker home without issuing a citation, returned to the highway patrol post to finish paperwork, and kept the box with the blood sample in his cruiser. At 6 a.m., when his shift ended, he mailed the box to the Ohio State Highway Patrol Crime Laboratory in Columbus.
After the test showed he was over the legal limit, Baker was indicted by a grand jury that charged him with violating Ohio’s DUI law. Baker pleaded not guilty, and filed a motion to suppress the evidence obtained from him, including the laboratory and chemical tests of his alcohol level.
Baker’s motion to suppress was based on a requirement in the Ohio Administrative Code that regulates the procedure when the state decides to obtain a blood or urine sample from someone. The regulation states, “While not in transit or under examination, all blood and urine specimens shall be refrigerated.”
The trial court granted Baker’s motion to suppress the test result, stating: “As to the failure to refrigerate the sample,…the court finds that this is not a de minimis shortcoming.”
“De minimis” is a Latin term meaning “trifling” or “minimal.” So when the court said the failure to refrigerate the blood sample was not a de minimis shortcoming, it meant that it was a big enough mistake to render the blood sample inadmissible as evidence.
When the court of appeals later reviewed the case, it affirmed the suppression of the blood-alcohol evidence. Two judges on the panel agreed that the state had failed to establish substantial compliance with the Code requirement on refrigeration. The third judge dissented and would have held that the state substantially complied with the Code.
After that decision, the case came before us to consider whether the state substantially complied with the Code when it allowed a blood sample to remain unrefrigerated for four hours and ten minutes before mailing it, and whether the test results should be admissible.
The state asserted that according to our court’s precedent, it substantially complied with the Code, noting that in 1986, we determined that a urine sample – which was not refrigerated for one hour and 25 minutes before mailing and for an additional three to four hours after arrival at the laboratory – substantially complied with the refrigeration requirements. The state thus argued that the trial court erred in granting Baker’s motion to suppress.
Baker, on the other hand, claimed that the state did not comply with the Code and that Emery could have refrigerated the blood sample while he was at the highway patrol post but failed to do so because it was not the highway patrol’s usual procedure.
The larger question was whether the failure to refrigerate a blood sample not in transit or under examination for a period of four hours and ten minutes is a de minimus error or whether it affects the reliability of the test such that it becomes an inaccurate measurement of alcohol in the blood and justifies suppression of that evidence.
Several cases involving this issue were instructive. In a 2003 case, we noted that our court first addressed the application of the regulations governing alcohol testing in a 1977 case. In that case we “established that rigid compliance with alcohol-testing procedures” in the Code “is not a prerequisite to the admissibility of alcohol-test results.”
In another case, we concluded that a three-to-four-hour interval without refrigeration did not render the test results inadmissible. And in another case, we established the standard that was limited to excusing errors that “are clearly de minimis.”
In Baker’s case, Emery’s failure to refrigerate the blood sample for four hours and ten minutes is within the timeframe that we have determined is considered substantial compliance with the Code.
While strict compliance with the regulation would be preferable, we recognized inherent logistical issues that may make strict compliance unrealistic. We therefore concluded that failing to refrigerate a blood sample for a period of four hours and ten minutes before placing it in transit for analysis is a de minimus error and does not render the test result inadmissible for failure to substantially comply with the Code.
Ultimately – by a six-to-one vote – we concluded that the state demonstrated substantial compliance with the Code. But Baker has not yet been given the opportunity to rebut the presumption of admissibility. Accordingly, we sent the case back to the trial court to provide Baker with an opportunity to demonstrate prejudice and to conduct further proceedings consistent with our opinion.
Paul Pfeifer is an associate justice of the Supreme Court of Ohio.