Ohio Revised Code (ORC) 4511.19(D) provides a three-hour time limitation for the collection of bodily substances for alcohol and/or drug testing. Specifically, it states the following:
“In any criminal prosecution . . . the court may admit evidence on the concentration of alcohol drugs of abuse, controlled substances . . . in the defendant’s whole blood, blood serum or plasma, breath, urine, or other bodily substance at the time of the alleged violation as shown by chemical analysis of the substance withdrawn within three hours of the time of the alleged violation.”
This time requirement was adopted by the Ohio Supreme Court in Cincinnati v. Sand and City of Newark v. Lucas, where the court held that tests in cases where there is a violation of the prohibited alcohol level would only be admissible when drawn within the three-hour time limitation. However, what happens when there is a refusal to submit to a breathalyzer, but the refusal occurs after the three-hour limitation?
After the confusion caused by Lucas, the court held in State v. Mayl that the state must show “substantial compliance” with ORC 4511.19(D) and the Department of Health regulations before the test results are admissible. However, the court left open a door for the use of tests conducted outside the three-hour limitation. In Columbus v. Taylor, the court gave trial court’s broad discretion to allow in “retrograde extrapolation” evidence if such evidence is supported by an expert witness.
DUI / OVI counsel will need to establish an exact timeline of your stop. A common example in which the three-hour limitation may be raised is where the police do not witness operation of the vehicle, such as in an accident.
Columbus and Delaware, Ohio DUI / OVI Attorney
If you have been charged with DUI / OVI in Columbus or Delaware, Ohio, contact Johnson Legal, LLC and speak with an experienced DUI / OVI attorney. Attorney David Johnson of Johnson Legal, LLC will discuss your case and assist you in fighting the charges. Call (614) 987-0192 or send an email to schedule a consultation regarding your DUI / OVI case.
Johnson Legal, LLC serves the following cities in the central Ohio area for DUI / OVI Defense:
Westerville, Worthington, Columbus, Polaris, Reynoldsburg, Grandview Heights, Shawnee Hills, Bexley, Pickerington, Gahanna, Sunbury, Powell, Upper Arlington, New Albany, Dublin, Hilliard, Lewis Center, Galena, Clintonville, Huber Ridge, Blacklick, Grove City, Delaware, Marysville, Groveport, Newark, Canal Winchester, Obetz, Marion, Mt. Gilead, Pataskala, Granville, Whitehall, Franklin County, Morrow County, Licking County, Union County and Delaware County