State v. Purdon, CA84-08-007

• Decision Date: 17 June 1985
• Docket Number: No. CA84-08-007,CA84-08-007
• Citation: 24 OBR 395,494 N.E.2d 1154,24 Ohio App.3d 217
• Parties: , 24 O.B.R. 395 STATE of Ohio, Appellant, v. PURDON, Appellee.
• Court: Ohio Court of Appeals

Page 217

24 Ohio App.3d 217

494 N.E.2d 1154, 24 O.B.R. 395

STATE of Ohio, Appellant, v. PURDON, Appellee.

No. CA84-08-007.

Court of Appeals of Ohio, Twelfth District, Brown County.

June 17, 1985.

Syllabus by the Court

The Due Process Clause of the Fourteenth Amendment does not require that the prosecution preserve urine samples or that the defendant have an independent analyst present at the testing in order for the state to introduce the results of the urine sample test at trial unless (1) the samples possess an exculpatory value that is apparent before the sample is destroyed or consumed in the testing and (2) the defendant is unable to obtain comparable evidence by other reasonably available means.

Joseph M. Worley, Assistant Pros. Atty., for appellant.

Michael E. Cassity, Mount Orab, for appellee.

PER CURIAM.

This cause came on to be heard upon the appeal from the County Court of Brown County, Ohio.

On February 19, 1984, defendant-appellee, George B. Purdon III, was arrested and charged with driving left of center in violation of R.C. 4511.25 and operating a motor vehicle while under the influence of alcohol and/or drugs of abuse in violation of R.C. 4511.19(A)(1). An intoxilyzer test was administered to Purdon and the result thereof was .05 percent, which is below the statutory presumption set forth in R.C. 4511.19(A)(3). ¹ Purdon consented to providing a urine sample. The urine specimen was analyzed and found to contain controlled substances. ² The entire urine specimen was consumed in the testing and analysis process.

Purdon filed a plea of not guilty to both charges and requested a trial by jury. Subsequent to his plea, Purdon filed a motion to suppress the results of the urine sample analysis on the basis that he was not given an opportunity to have his own independent analysis made of the urine specimen or, in the alternative, he did not have the opportunity to have an independent analyst present at the testing performed by the state's analyst. The trial court, after a hearing on the matter, granted the motion to suppress the results of the urine specimen analysis. The state now brings a timely appeal to this court.

The sole assignment of error presented by the state is as follows:

"The trial court erred in granting appellee's motion to suppress the results of a urine sample analysis from evidence."

The issue as presented for review and argument by the state is as follows:

"Does the due process clause of the Fourteenth Amendment require the State of Ohio to supply to the defendant a portion of his urine sample or allow an independent analyst to be present at the testing performed by the analyst for the State in order to introduce the urine analysis at the trial?"

Purdon relies on R.C. 2925.51(E) to support his position that a defendant is entitled to have the state preserve the urine sample or, if the urine sample will be totally consumed in the state's testing, to have an independent analyst present at the testing performed by the state. R.C. 2925.51(E) states as follows:

"(E) Any person who is accused of a violation of this chapter [R.C. Chapter 2925] or of Chapter 3719. of the Revised Code is entitled, upon written request made to the prosecuting attorney, to have a portion of the substance that is the basis of the alleged violation preserved for the benefit of independent analysis performed by a laboratory analyst employed by the accused person, or, if he is indigent, by a qualified laboratory analyst appointed by the court. Such portion shall be a representative sample of the entire substance that is the basis of the alleged violation and shall be of sufficient size, in the opinion of the court, to permit the accused's analyst to make a thorough scientific analysis concerning the identity of the substance. * * * If the prosecuting attorney determines that such a sample portion cannot be preserved and given to the accused's analyst, the prosecuting attorney shall so inform the accused person, or his attorney. In such a circumstance, the accused person is entitled, upon written request made to the prosecuting attorney, to have his privately employed or court appointed analyst present at an analysis of the substance that is the basis of the alleged violation, and, upon further written request, to receive copies of all recorded scientific data that result from the analysis and that can be used by an analyst in arriving at conclusions, findings, or opinions concerning the identity of the substance subject to the analysis." (Emphasis added.)

R.C. 2925.51(E) is not applicable to the case at bar. The legislature specifically states that R.C. 2925.51(E) applies to violations of R.C. Chapters 2925 or 3719. Purdon was charged with a violation of R.C. Chapter 4511. There is no statutory right conferred upon defendants charged with a violation of R.C. Chapter 4511 to have a urine sample preserved or an independent analyst present at the state's testing of the urine sample.

Therefore, since there is not any specific statutory authority applicable, the issue we must address is whether due process requires the state to preserve a urine sample or have a defendant's independent analyst present at the testing conducted by the state.

There are no reported cases in Ohio on this issue. However, the United States Supreme Court in California v. Trombetta (1984), 467 U.S. 479, 491, 104 S.Ct. 2528, 2535, 81 L.Ed.2d 413, 423, held that "* * * the Due Process Clause of the Fourteenth Amendment does not require that law enforcement agencies preserve breath samples in order to introduce breath-analysis tests at trial." The court analyzed the issue in terms of fundamental fairness and the criminal defendant's right to present a complete defense by access to evidence of an exculpatory nature in the hands of the prosecution. The court stated at 488, 104 S.Ct. at 2534, 81 L.Ed.2d at 422:

"* *...