In the case of State v. Mullins, the Defendant became the subject of a vehicle crash investigation on March 24, 2012. Upon being placed under arrest, by Trooper Brown of the Ohio State High-way Patrol, the Defendant agreed to sub-mit to a urine analysis. The Defendant’s urine sample was collected and witnessed by Trooper Hutton of the Ohio State Highway Patrol. The Defendant’s sample was col-lected at 18:44 (6:44 p.m.) on March 24, 2012 and according to the property con-trol form, the sample was given to Troop-er Brown by Trooper Hutton at that same time. The Defendant’s urine sample was kept in Trooper Brown’s locked patrol cruiser for the remainder of his shift. Trooper Brown got off his shift at 6:00 a.m., on March 25, 2012. According to the property control form completed and submitted by Trooper Brown, the Defendant’s urine sample was not placed in the mail (transit) until 6:30 a.m. on March 25, 2012. At no time between the collection at 6:44 p.m. on March 24, 2012 and the placing in the mail at 6:30 a.m. on March 25, 2012, was the Defendant’s urine sample refrigerated.
The Trial Court stated from the bench that: “Alright, well I have reviewed the law in this area and it does appear to me, at least, that this is a close case, frankly. There are some cases that say three, four, maybe five hours is ok. There’s another case out there that says seventeen hours is not ok in terms of getting the urine sample out of the patrol’s hands and into the mail, I guess. The thing that just seems to distinguish those cases is that if the trooper does it while he’s on his shift or as soon as he’s leaving his particular shift that he’s on when he obtains the sample, that seems to be ok. And if he doesn’t do it at the end of that shift but comes back and does it another shift that it’s not ok. And the purposes [sic] of trying to make a bright line, this Court’s gonna rule that if the trooper takes the sample and places it in the mail during his shift or immediately at the conclusion of his shift, then that’s gonna be ok. If he waits beyond the end of his shift to another shift or whatever, then it wouldn’t be ok. But even though it was twelve hours later in this case, the trooper apparently did deposit the sample in the mail as he was leaving his shift. The Court’s gonna rule that that’s ok and the motion to suppress is gonna be overruled for that reason.”
The Defendant plead no contest and appealed the trial court’s decision overruling the motion to suppress.
The Fourth District Court of Appeals reversed the Trial Court. “We find that the approximate 12 hour period in which Mullins’ urine sample was unrefrigerated while not in transit or under examination, like the 17 hour period in DeJohn, is not “clearly de minimis” or simply a “minor procedural deviation” from Ohio Adm.Code 3701-53-05(F). This period of time is more than double the amount of time the Plummer Court characterized as a “relatively slight delay.” It is also double or more than double time periods approved by other Ohio courts. See State v. Price, 11th Dist. No. 2007-G-2785, 2008 Ohio 1134, ¶ 26 (finding retention of a blood sample in an unrefrigerated state for six hours before mailing not a violation); State v. Schell, 5th Dist. CA-7884, 1990 WL 83992, *2 (June 18, 1990) (finding substantial compliance when blood sample went unrefrigerated for five hours).
The Court of Appeals reasoned that: “R.C. 4511.19(D)(1)(b) provides for the admission of evidence on the concentration of alcohol in a defendant’s urine in a prosecution under R.C. 4511.19(A). The State must have the urine analyzed in accordance with methods approved by the director of health. R.C. 4511.19(D)(1)(b). One of these methods appears in Ohio Adm.Code 3701-53-05(F), which provides: “While not in transit or under examination, all blood and urine specimens shall be refrigerated.”
The Court of Appeals then addressed the burden shifting nature of these issues and hearings, pointing out that a burden-shifting procedure governs the admissibility of alcohol-test results. Burnside at ¶ 24. “The defendant must first challenge the validity of the alcohol test by way of a pretrial motion to suppress….” Id. Then, “the state has the burden to show that the test was administered in substantial compliance with the regulations prescribed by the Director of Health.” Id. If the state satisfies this burden, thereby creating a presumption of admissibility, the burden “then shifts to the defendant to rebut that presumption by demonstrating that he was prejudiced by anything less than strict compliance.” Id. “Hence, evidence of prejudice is relevant only after the state demonstrates substantial compliance with the applicable regulation.” Id.
While the Fourth District Court of Appeals acknowledged that some failures to comply with the rules can still result in the admission of the test results, “To avoid usurping a function that the General Assembly has assigned to the Director of Health, … we must limit the substantial-compliance standard * * * to excusing only errors that are clearly de minimis.” Burnside, 100 Ohio St.3d 152, 2003 Ohio 5372, 797 N.E.2d 71, at ¶ 34. Thus errors that are excusable under the substantial-compliance standard must be “minor procedural deviations.” Id.
The Court, in rejecting the prosecutor’s argument that the court should set a rule that urine test results are admissible so long as the police mail in the urine sample at the end of their shift, stated that: “Although it may not be convenient or possible for a trooper to place a blood or urine sample in transit in a timely fashion during his shift, the current version of Ohio Adm.Code 3701-53-05(F) is less burdensome than its predecessor in terms of storage requirements. The State no longer needs to worry about law enforcement storing samples at a specific temperature. Because the code simply requires refrigeration of samples while not in transit or under examination, troopers could arguably comply with Ohio Adm.Code 3701-53-05(F) by placing samples in a small cooler with frozen gel packs in the trunk of their vehicles.”
The case was State v. Mullins, 2013-Ohio-268.