State v. MaylState v. Mayl
Lead Opinion
{¶ 1} In this case, we address the admissibility of a hospital blood-alcohol test in an aggravated-vehicular-homicide prosecution. John Mayl was charged with causing the death of another as a result of driving under the influence of alcohol. He filed a motion to suppress the results of the blood-alcohol test taken while he was being treated at the hospital after the accident. The trial court denied the motion because it found that the state need not show substantial compliance with Ohio Department of Health (“ODH”) regulations, since Mayl was not charged with a DUI offense. But the court of appeals reversed and held that the testing
{¶ 2} This cause is now before this court as a discretionary appeal.
{¶ 3} We conclude that in a criminal prosecution for aggravated vehicular homicide that depends upon proof of an
Facts and Procedure
{¶ 4} On November 19, 2000, near midnight, construction worker Lorna Dingess was killed by John Mayl when he hit her with his vehicle. Mayl was also injured and was taken by ambulance to Miami Valley Hospital, where he was treated in the emergency room. The treating physician ordered a blood test, which was drawn at approximately 12:15 a.m. by a registered nurse. About 20 minutes later, Mayl refused a police officer’s request to submit to a blood test to check his alcohol intake, and the officer seized Mayl’s driver’s license. Mayl’s sample was analyzed by a lab technician, and the test results showed that Mayl had an alcohol concentration of 0.207 percent by weight in his blood. It is undisputed that Mayl’s blood test was taken as part of the usual procedure for trauma care at the hospital and that it was not requested by law enforcement.
{¶ 5} Later that day, during its investigation of the traffic fatality, the Dayton Police Department requested and received Mayl’s blood-alcohol test results under the provisions of
{¶ 6} Mayl filed a motion to suppress his hospital blood-alcohol test,
{¶ 7} Mayl ultimately entered a no-contest plea to the indictment and was found guilty by the trial court. He was sentenced to four years of incarceration (two being mandatory) and his driver’s license was permanently revoked. He filed a timely appeal.
{¶ 8} The Court of Appeals for Montgomery County reversed the judgment. State v. Mayl,
{¶ 9} “No person, while operating * * * a motor vehicle, * * * shall cause the death of another * * * in any of the following ways:
{¶ 10} “(1) As the proximate result of committing a violation of division (A) of
{¶ 11} In reversing the judgment of the trial court, the appellate court determined that blood-alcohol regulations governing the drawing, handling, and testing of blood samples in DUI cases would also apply to aggravated-vehicular-homicide charges when an element of the offense is a violation of
{¶ 12} Now on appeal before us, the state of Ohio proposes that we hold that when a blood-alcohol test is taken for medical purposes by qualified medical personnel in an accredited medical laboratory within two hours of a suspected violation of
{¶ 13} Mayl objects to this argument — that the admissibility of the test results should depend on the source of the request for testing — because the argument was not raised below. At oral argument the state responded that the issue was always whether the regulations apply and that it has simply refined this issue.
DUI Law and Test Results
{¶ 15} Before addressing the specific facts, we must put the issues in context. Mayl’s aggravated-vehicular-homicide charge alleged a violation of
{¶ 16} “No person shall operate any vehicle * * * if * * *:
{¶ 17} “The person is under the influence of alcohol, a drug of abuse, or a combination of them.”
{¶ 18} At the time of Mayl’s offense, subsections (A)(2) through (7) prohibited operation of a motor vehicle with certain concentrations of alcohol and drugs of abuse in a person’s blood, breath, or urine. See 148 Ohio Laws, Part IV, 8405. These latter sections, defining what are called “per se” offenses, were renumbered as
{¶ 19} Yet no matter under which portion of
{¶ 20}
{¶ 21} “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
{¶22} “When a person submits to a blood test at the request of a law enforcement officer under section 4511.191 of the Revised Code, only a physician, a registered nurse, or a qualified technician, chemist, or phlebotomist shall withdraw blood for the purpose of determining the alcohol, drug, or alcohol and drug content * * *. This limitation does not apply to the taking of breath or urine specimens. * * *
{¶ 23} “The bodily substance withdrawn shall be analyzed in accordance with methods approved by the director of health by an individual possessing a valid permit issued by the director pursuant to section 3701.143 of the Revised Code.”
{¶ 24} The section concerning the director’s authority,
{¶ 25} The regulation that describes how a bodily substance sample shall be collected is
{¶ 26} “(A) All samples shall be collected in accordance with division (D) of
{¶ 27} “(B) When collecting a blood sample, an aqueous solution of a nonvolatile antiseptic shall be used on the skin. No alcohols shall be used as a skin antiseptic.
{¶ 28} “(C) Blood shall be drawn with a sterile dry needle into a vacuum container with a solid anticoagulant, or according to the laboratory protocol as written in the laboratory procedure manual based on the type of specimen being tested.
{¶ 29} “(D) Urine shall be deposited into a clean glass or plastic screw top container which shall be capped. The collection of a urine specimen must be witnessed to assure that the sample can be authenticated. The urine specimen must be collected according to the requirements of specimen collection as set forth in the procedure manual of the laboratory that will be performing the
{¶ 30} “(E) Blood and urine containers shall be sealed in a manner such that tampering can be detected and have a label which contains at least the following information:
{¶ 31} “(1) Name of suspect;
{¶ 32} “(2) Date and time of collection;
{¶ 33} “(3) Name or initials of person collecting and/or sealing sample.
{¶ 34} “(F) While not in transit or under examination, all urine and blood specimens shall be refrigerated.”
{¶ 35} The regulation that describes testing methods is
{¶ 36} “Alcohol in blood, urine and other bodily substances shall be analyzed based on approved techniques or methods. The technique or method must have documented sensitivity, specificity, accuracy, precision and linearity. The technique or method can be based on procedures which have been published in a peer reviewed or juried scientific journal or thoroughly documented by the laboratory. Approved techniques or methods include:
{¶ 37} “(1) Gas chromatography; and
{¶ 38} “(2) Enzyme assays.”
{¶ 39} The regulation that describes the required qualifications of laboratory personnel is
{¶ 40} These regulations have been designed to ensure the accuracy of bodily substance test results. See State v. Dickerson (1986),
The Suppression Hearing
{¶ 41} Turning now to the motion to suppress filed by Mayl, we first note that the trial court is best able to decide facts and evaluate the credibility of witnesses. Its findings of fact are to be accepted if they are supported by competent, credible evidence, and we are to independently determine whether they satisfy
• {¶ 42} A defendant who does not file a motion to suppress test results on the basis that the state did not comply with the above procedures may not object to the admissibility of the test results at trial on those grounds. State v. French (1995),
{¶ 43} At the suppression hearing, the state called medical personnel to testify about the procedures used. The RN who drew Mayl’s blood explained that the tests were taken solely for medical reasons. “[I]t was important to us from a medical standpoint to know if, in fact, he had alcohol on board. It often interacts with the treatments that we can do, pain medication, length of stay, those types of things.” His testing included a complete blood count, a coagulation profile, a metabolic, a metabolic comprehensive, an amylase/lipase, a urinalysis, and a urine drug screen, in addition to his blood-alcohol test. In drawing the blood, the RN used a nonalcohol substance to swab the skin, then used a sterile syringe and drew the blood into a vacuum-sealed glass bottle. She personally delivered it to CompuNet Clinical Laboratories, the hospital’s in-house lab.
{¶44} Victoria Studebaker, the vice president of operations of CompuNet, testified that the lab was certified by the College of American Pathologists, was federally registered for high-complexity testing, and complied with pertinent regulations governing clinical laboratories.
{¶ 45} The medical technologist who ran Mayl’s tests was certified by the Association of Clinical Pathologists. She received the container labeled with Mayl’s name, the date and time it was drawn, and the initials “RN,” indicating that a registered nurse had drawn it. The sample was not refrigerated for nearly one hour and 45 minutes before it was tested, but was refrigerated after the test was completed. The enzymatic assay used for the analysis in this case is commonly used in medical laboratories, and the gel VAC, a solid anticoagulant, was used according to laboratory protocol.
{¶ 46} Studebaker testified that the Hitachi chemistry analyzer used to test Mayl’s sample automatically calibrates the assay when a new bottle of reagent is placed in the analyzer. Bottles of reagent are changed weekly, and the machine’s calibration is checked at least once daily. Records showed proper calibration on November 18, 2000, November 19, 2000, and November 20, 2000. Since the machine registered no error code, Studebaker concluded that the machine was properly calibrated and that the results were accurate.
{¶ 48} The trial court at the suppression hearing determined that the state did not need to show compliance with the procedures in the Ohio Administrative Code and the Ohio Revised Code. The court of appeals, however, recognized that the change in the aggravated-vehicular-homicide statute now requires the state to demonstrate compliance. We agree with the appellate court that the ODH regulations requirements relate to Mayl’s situation, and we hold that when results of blood-alcohol tests are challenged in an aggravated-vehicular-homicide prosecution that depends upon proof of an
{¶ 49} We used the term “substantial compliance” with respect to these statutes and corresponding administrative regulations in State v. Burnside,
{¶ 50} In several instances, although Mayl alleged deviations from the ODH regulations, we conclude that there was substantial compliance.
{¶ 51} It is undisputed that the hospital had no permits issued by the Director of Health. Although the lab at the Miami Valley Hospital, the vice president of operations for the hospital lab, and the lab technician who tested Mayl’s blood may have qualified for permits under
{¶ 52} We cannot excuse the absence of the proper permits and the disposal of the sample within a matter of days as minor procedural deviations.* *
The State’s Argument for Nonapplicability of ODH Regulations
{¶ 53} The state argues, nonetheless, that it was not required to show that Mayl’s blood test complied with ODH regulations because he submitted to the testing not at the request of a law-enforcement officer under
{¶ 55} Although we may agree that this is good public policy, it is not what the statute says.
Hospitals Are Not Statutorily Exempt from ODH Compliance
{¶ 56} No portion of
{¶ 57} The case on which the state relies, State v. Brand,
{¶ 58} The accuracy and reliability of bodily substance tests do not depend on who requests them. In State v. Burnside,
{¶ 59} We will not retreat from our stance in Burnside and create an exception for testing done as part of medical treatment. The Director of Health may fashion specific regulations for bodily substance tests performed by hospitals or similar facilities for purposes of medical treatment or diagnosis. These might include different retention rules and certification rules for hospital, as compared to forensic, labs. We, however, decline to invent an exemption the legislature has not created and to add regulations the director has not promulgated.
{¶ 60} The state did not show substantial compliance with ODH regulations at the suppression hearing. Proper certification of the lab and hospital personnel and retention of the sample were needed for results of Mayl’s blood-alcohol test to be admissible in an aggravated-vehicular-homicide case. It does not matter that the sample was taken during medical treatment.
{¶ 61} Until the legislature creates a specific exemption, hospital tests of bodily substances — to be admissible in prosecutions that have as an element of proof a violation of
{¶ 62} Our review of the statutes and administrative regulations involved leads us to conclude that the appellate court correctly reversed the denial of Mayl’s motion to suppress blood-alcohol test results and the resulting judgment of conviction. The judgment of the Court of Appeals for Montgomery County is affirmed.
Judgment affirmed.
Notes
. Mayl also challenged the admission of any statements he made and any other evidence seized illegally.
. Failure to refrigerate a sample for as much as five hours has been determined to substantially comply with
. This is in no way a criticism of the laboratory in this ease. We have every reason to believe that the lab was properly qualified to test blood for medical purposes and that the test was performed competently. We are merely stating that the ODH regulations provide the standard that must be met for the admissibility of bodily substance test results in a prosecution involving a violation of
.
.
. The following cases are also incorrect on this point. State v. Lloyd (Mar. 26, 2003), Knox App. No. 02-CA-33; State v. Slageter (Mar. 31, 2000), Hamilton App. No. C-990584,
Dissenting Opinion
dissenting.
{¶ 63} I believe that the majority misinterprets the reach of
{¶ 64} Initially, I agree with the majority that the state has not waived the opportunity to present its argument that the last sentence of
{¶ 65} The majority discusses the three unnumbered paragraphs of
{¶ 66} The first paragraph of
{¶ 67} The second paragraph provides, “When a person submits to a blood test at the request of a law enforcement officer under
{¶ 68} The third paragraph provides, “The bodily substance withdrawn shall be analyzed in accordance with methods approved by the director of health by an individual possessing a valid permit issued by the director pursuant to
{¶ 69} The majority states, “
{¶ 70} In my view, not only does the last paragraph of
{¶ 71} Furthermore, as relevant to this case,
{¶72} I essentially agree with the view of
{¶ 73} “At the hospital, Officer Beebe asked Brand to give a blood sample, and she refused. Hospital personnel later took a sample of Brand’s blood, presumably for medical purposes. Though it is not clear from the record, we assume that the state then obtained the blood-alcohol level of Brand’s blood through
{¶ 74} “Therefore, because Brand did not submit to a blood test at the request of a law enforcement officer, the results of her blood test were not subject to the regulations of
{¶ 75} “* * *
{¶ 76} “Therefore, we hold that because Brand’s blood sample was not taken at the request of a law enforcement officer, the state did not have the burden to prove substantial compliance with the testing procedures of
{¶ 77} The majority rejects Brand and the cases cited therein, as well as State v. Slageter (Mar. 31, 2000), Hamilton App. No. C-990584,
{¶ 78} I believe that a close reading of Brand, particularly the paragraphs quoted above, supports a view that that court was not simply conducting a narrow textual consideration of the terms of
{¶ 79}
{¶ 80} Applying the same reasoning that was applied in Brand, I would conclude that, because Mayl’s blood sample was not taken at the request of a law-enforcement officer, the test result should be admissible, with any objections to the tests going to the weight of the evidence. I view the majority’s application of State v. Burnside,
{¶ 81} Not long after the Second Appellate District issued its decision reversing the judgment of the trial court in the instant case, that court decided State v. Wells, Greene App. No. 2003-CA-68,
{¶ 82} “
{¶ 83} The Wells court went on to suggest that the General Assembly should revisit this area of the law:
{¶ 84} “Clearly, this issue is in need of legislative clarification. The unfortunate result of this apparent legislative oversight is that law enforcement may be unable to use the results of blood tests performed by certified clinical laboratories in many of those DUI cases where the defendant has done the greatest harm, i.e., aggravated vehicular homicide cases. Surely, this was not the goal of the legislature. As recognized in Quinones [supra, Lorain App. No. 95CA006084], by amending
{¶ 85} I disagree with Wells to the extent that it rejects the conclusion of Brand, Quinones, and other appellate cases mentioned above that
{¶ 86} In conclusion, I would reverse the judgment of the court of appeals. I would find that the trial court reached the correct result in denying Mayl’s motion to suppress, even though the trial court’s reasoning was faulty, and so specifically disagree with the court of appeals regarding the admissibility of the blood-test results. However, because the court of appeals found two of Mayl’s assignments of error moot and declined to address them, and those assignments are unrelated to the admissibility of the test results, I would remand the cause to the court of appeals for further consideration. Because the majority decides this case differently, I dissent.
. See 1994 Am.Sub.H.B. No. 335,145 Ohio Laws, Part III, 5460, effective December 9,1994.
. The provisions now found in