Blood-Alcohol Testing in OVI Cases ​​​prepared by Robert G. Walton, Esq.

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CONSTITUTIONAL AND

STATUTORY LIMITATIONS ON:

OBTAINING BLOOD FOR ALCOHOL

TESTING AND ADMISSIBILITY

OF EVIDENCE OF TEST RESULTS

By: Robert G. Walton, Esq.

Revised: May 7, 2012

See below for brief intro/outline. Click through web link to view actual document.

I. OUTLINE

A. WHEN BODILY SUBSTANCE OBTAINED AT REQUEST OR DIRECTION OF POLICE, IT IS A SEARCH AND SEIZURE

• Schmerber v. California (1966), 384 U.S. 757 . . . . .. . . . . . . P. 7

Subject to Fourth Amendments standard’s of reasonableness

B. MEANS BY WHICH SUBSTANCES MAY BE OBTAINED – LIMITATIONS

  1. Actual Consent

• City of Fairfield v. Regner, 23 Ohio App.3d 79 (1985) . . . . . . . . . . . P. 8

Police did not seek implied consent under R.C. §4511.191

Actual consent given

Actual consent does not require probable cause or arrest

Consent must be voluntary

Consent involuntary if coerced by threats or force or granted only in submission to

a claim of lawful authority

• City of Cleveland Heights v. Cook, 8th Dist. App. No. 80475, 2002-Ohio-3430 . . . . . . . . . . . . . . . . . P. 10

Consent must be obtained by police

  1. Search Warrant

State v. Matus, 6th Dist. No. WD-06-072, 2008-Ohio-377 . . . . . . . . . . . . . . . P. 10

No constitutional right to refuse reasonably reliable chemical test for intoxication

If refusal, officer may obtain search warrant based upon affidavit showing probable cause

  1. Exigent Circumstances

• Schmerber. . . . . . . . . . . . . . . . . . P. 7

Probable cause for OVI arrest required

Exigent circumstances must be proven –delay necessary to obtain a warrant under the circumstances threatens destruction of evidence

Test must be performed in a reasonable manner

Judgment limited to facts of case

Additional Resources

Blood-Alcohol Testing in OVI Cases

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