Identifying a Drunk Driver

By Lawrence Landskroner

There are many occasions when the issue of whether a driver was under the influence of alcohol is material, both in criminal cases and civil matters. Liability for the cause of an accident, will be shifted from one side to another if caused by overindulgence in alcoholic beverages. In a civil case, one must show that drinking and not some other cause was the proximate cause of an accident. The rules and cases mandate that the proof be sufficient to convince the jury of the intoxication of a driver.

The proof as to the intoxication of a driver may be accomplished in three different ways. The first way is the visual observations by an officer or a witness to the accident. The defense may minimize the witness' testimony by attributing the condition of the driver to:

1. his injuries,
   
   
2. an illness, such as diabetes (which would make one appear to smell of alcohol, when in reality it is really an acetone smell), or
   
   
3. his occupation (such as a painter or pharmacist smelling of alcohol because they have been working with it).

The Breathalyzer

Accuracy of Breathalyzer testing can be questioned because certain Breathalyzer models can be effected by radio frequency interference. The Breathalyzer is sensitive to the background of electromagnetic energy. If there is interference with temperature in the testing, if the breath sample does not re-balance the instrument properly, if the galvanometer (a delicate D/ C ammeter) is not operating properly, if the electronics are not up to par, the results of a Breathalyzer cannot be considered truly accurate. By example, the use of a police radio transmitter may alter the testing of the breath to make the reading defective. In the courtroom, the proper questioning can discredit the results of a breathalyzer test to some degree.

Blood Alcohol Testing

The Ohio Supreme Court in Cincinnati v. Sand, 43 Ohio St. 2d 79 ( 1975), in its syllabus, set forth three conditions which must be affirmatively established by facts to support the admission of a blood alcohol content test administered pursuant to Ohio Revised Code Section 45 11 . 1 9. The three conditions are:

1. The bodily substance (i.e., blood, air, urine) must be withdrawn within two hours of the alleged violation.
   
   
2. Such bodily substance shall be analyzed in accordance with methods approved by the Director of Health.
   
   
3. The analysis shall be conducted by qualified individuals holding permits issued by the Director of Health, pursuant to R.C. 3701.143.

An alcohol test performed on the blood sample taken from a defendant or party in a civil case should not be admitted as evidence due to the test's incompetence, when all three of the Ohio Supreme Court's conditions cannot be affirmatively proven. The sample must be taken within the two-hour requirement of the court, and must be tested by a qualified individual. There must also be conclusive evidence that the blood sample was withdrawn in accordance with the collection and handling procedures approved by the Director of Health of the State of Ohio.

The Director of Health, pursuant to R.C. 3701.143 promulgated Chapter 3701 -53, Ohio Administrative Code. These promulgated rules control the techniques and methods of alcohol testing. Section 3701-53-05 dictates the procedure for the collection and handling of blood samples. That section states in part that:

1. All samples shall be collected within two hours of the time of the alleged violation.
   
   
2. Blood samples shall be collected by a physician or registered nurse. An aqueous solution of a nonvolatile antiseptic shall be used on the skin. Alcohol or phenol shall not he used as a skin antiseptic.
   
   
3. Blood shall be drawn with a sterile dry needle into a vacuum container containing a solid anticoagulant. or a sterile dry needle and syringe and deposited into a clean container containing a solid anticoagulant. The container shall then be capped or stoppered.
   
   
4. Blood and urine containers shall be sealed with a gummed tape or sticker, which contains at least the following information:
   
   
   • Name of suspect;
   • Arrest or slate number;
   • Date and time of collection;
   • Name or initials of person collecting and or sealing sample.
     
     
5. While not in transit to a laboratory or under examination all urine and blood specimens shall be refrigerated at a temperature of 42 degrees Fahrenheit or below.

In the case of Bach v. Penn Central Transportation Co.. 502 F. 2d 1117 (6th C. A. 1974), the court ruled that the evidence of blood alcohol concentration is inadmissible as incompetent and prejudicial. Bach held that evidence of blood alcohol concentration, in appropriate case, need not conform with statutory test procedures, but must conform with good practice in the field to insure reliable results. This opinion requires evidence that the entire procedure, from the taking of the blood sample to the final testing. was performed in a professionally acceptable manner that would assure reliable results. The circumstances surrounding the taking of a blood sample are fraught with uncertainty. The situation is the type referred to by the court in Todd v. United States. 384 F . Supp. 1284 ( M . D. Fla. 1974) at p. 1293: The entire claim of custody is so replete with gaps and unexplained circum- stances that this Court does not consider the evidence of intoxication to be of any probative value.

The Director of Health regulations are a good indication of what is good practice in the taking of blood samples. The failure to follow a reliable procedure renders the test performed on a sample unreliable.

Finally, in the case of Sweeney v. American Steamship Co., 491 F. 2d 1085, (6th Cir. 1974), the Sixth Circuit Court of Appeals affirmed the rejection of the results of a blood alcohol test, where there was contradictory evidence relative to both the person's condition the day of the accident and to his drinking habits in general.

The lesson to be taken from these legal mandates are that the officer must be careful to follow accepted procedures to the letter. No one reading this article must be reminded of the carnage caused by drunk drivers on our nation's highways every year. The police officer serves one of his most important functions by protecting the public from this hazard. It is hoped that this article has served to clarify an area of law that is complex and unsettled.

Copyright (c) 1996 Lawrence Landskroner. All rights reserved. Reproduction in whole or in part in any form or medium without express written permission of Lawrence Landskroner is prohibited.