State v. Sawyer, 90-CA-44

• Decision Date: 16 May 1991
• Docket Number: No. 90-CA-44,90-CA-44
• Citation: 74 Ohio App.3d 185,598 N.E.2d 747
• Parties: The STATE of Ohio, Appellant, v. SAWYER, Appellee.
• Court: Ohio Court of Appeals

Page 185

74 Ohio App.3d 185

598 N.E.2d 747

The STATE of Ohio, Appellant, v. SAWYER, Appellee.

No. 90-CA-44.

Court of Appeals of Ohio, Second District, Miami County.

Decided May 16, 1991.

Philip D. Hoover, Pros. Atty., for appellant.

John A. Wannemacher, Troy, for appellee.

GRADY, Judge.

Defendant-appellee Tommy D. Sawyer was charged with operating a vehicle under the influence of alcohol or a drug of abuse in violation of R.C. 4511.19(A)(1). Sawyer provided a urine sample to arresting officers. The sample was tested and analyzed at the Ohio State Highway Patrol Crime Laboratory, which reported that it was found to contain a quantity of methamphetamine, a Schedule II substance.

Defendant-appellee filed a motion to suppress the results of the urine test, claiming that the Department of Health had failed to establish regulations for drug testing and, therefore, that the test results were inadmissible pursuant to R.C. 4511.19(D).

The trial court was presented, by the state, with a copy of a letter from Leonard J. Porter, M.Sc., Chief Toxicologist, Ohio Department of Health, who stated with respect to rules for drug testing that "[n]o such rules have been promulgated as authority under 3701.143 pertain[ing] only to alcohol testing." The trial court found that because the Director of Health had failed to promulgate such rules, the defendant's motion to suppress must be granted.

Appellant state of Ohio has filed a timely notice of appeal and certified, pursuant to Crim.R. 12(J), that suppression has rendered the state's proof with respect to the pending charge so weak in its entirety that any reasonable possibility of effective prosecution has been destroyed.

The state has presented a single assignment of error:

"The trial court erred by sustaining defendant's motion to suppress based on the premise that the urine sample must be analyzed in accordance with methods approved by the Director of Health."

R.C. 4511.19(A) provides that no person shall operate a vehicle if "(1) [t]he person is under the influence of alcohol, a drug of abuse, or alcohol and a drug of abuse." Further provisions of sections (A) and (B) establish violations for operation of a vehicle with certain concentrations of alcohol in the blood, breath, or urine.

R.C. 4511.19(D) states, in pertinent part:

"In any criminal prosecution for a violation of this section, of a municipal ordinance relating to operating a vehicle while under the influence of alcohol, a drug of abuse, or alcohol and a drug of abuse, or of a municipal ordinance relating to operating a vehicle with a prohibited concentration of alcohol in the blood, breath, or urine, the court may admit evidence on the concentration of alcohol, drugs of abuse, or alcohol and drugs of abuse in the defendant's blood, breath, urine, or other bodily substance at the time of the alleged violation as shown by chemical analysis of the defendant's blood, urine, breath, or other bodily substance withdrawn within two hours of the time of the alleged violation.

"When a person submits to a blood test at the request of a police officer under section 4511.191 of the Revised Code, only a physician, a registered nurse, or a qualified technician or chemist shall withdraw blood for the purpose of determining its alcohol, drug, or alcohol and drug content. This limitation does not apply to the taking of breath or urine specimens. A physician, a registered nurse, or a qualified technician or chemist may refuse to withdraw blood for the purpose of determining the alcohol, drug, or alcohol and drug content of the blood, if in his opinion the physical welfare of the person would be endangered by the withdrawing of blood.

"Such bodily substance shall be analyzed in accordance with methods approved by the director of health by an individual possessing a valid permit issued by the director of health pursuant to section 3701.143 of the Revised Code.

"If there was at the time the bodily substance was withdrawn a concentration of less than ten-hundredths of one per cent by weight of alcohol in the defendant's blood, less than ten-hundredths of one gram...