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by Justice Paul E. Pfeifer
On January 12, 2005, a man named Michael Hassler was involved in a one-car accident that resulted in the death of Leondra Mayo. After the accident, Hassler was taken to the hospital, where police questioned him. His demeanor suggested to the police that he was intoxicated, but Hassler declined to provide a blood sample. Roughly seven hours later, police obtained a search warrant and drew blood samples from Hassler.
A grand jury eventually indicted Hassler, charging him with aggravated vehicular homicide. The count against him alleged that he caused Mayo’s death by operating a motor vehicle under the influence of alcohol.
Hassler filed a motion to suppress the results of his blood-alcohol test, based in part on the fact that his blood was drawn seven hours after the accident. At the time, Ohio law required that blood samples be obtained within two hours. (In 2006, the law was changed. It now allows a three-hour window of opportunity to obtain a blood sample.)
Following a hearing on Hassler’s motion, the trial court granted the motion. The trial court ruled that for the test results to be admissible, the test had to be performed within two hours of the incident.
The state appealed the ruling, but the court of appeals affirmed the trial court’s judgment. After that, the case came before us – the Supreme Court of Ohio – for a final review.
if the law required the blood to be drawn within two hours of the offense, why is there any question for appeal in this case, where the blood was drawn seven hours later? To answer that, we have to go back to 1988, when our court issued a ruling in a case called Newark v. Lucas.
In that case our court held that the results of a properly administered blood test may be admitted in evidence despite the fact that the blood was drawn more than two hours after the violation occurred. In Lucas, the blood was drawn two-and-half hours after the violation.
In reaching its decision in Lucas’s case, our court first noted that in 1983, the Ohio General Assembly had amended the drunk driving law to make it “illegal to operate a vehicle not only while under the influence of alcohol, but also with a proscribed level of alcohol content in one’s blood, breath, or urine.”
In other words, after 1983, simply driving with an elevated level of alcohol in your body was a violation of the law. The effect of the 1983 amendment was to divide the DUI law into two classifications of offenses: the offense of operating a vehicle while under the influence, and the “per se” offense.
For a per se offense, the court only has to find that the defendant operated a vehicle while his or her blood-alcohol level was over the legal limit. But for the other offense – operating a vehicle while under the influence – the blood test is only one element of the evidence against the defendant.
So, in the Lucas case, our court held that in prosecutions for violations of driving while impaired, “the behavior of the defendant…is the crucial issue. The accuracy of the test is not the critical issue as it is in prosecutions for per se violations.” Therefore, in the Lucas case, since the test results alone were not used to prove innocence or guilt, the results were allowed as part of the evidence even though the blood was drawn beyond the two hour time limit.
In reviewing Hassler’s case, the majority of our court relied primarily on the ruling in Lucas. By a four-to-three margin, our court concluded that because the state prosecuted Hassler for aggravated vehicular homicide and alleged a violation of driving under the influence, the test results were merely considered in addition to all other evidence of impaired driving.
According to the four members of the majority, the fact that Hassler’s blood was withdrawn more than two hours after the incident does not bar the admission of the evidence.
I joined Chief Justice Thomas Moyer and Justice Terrence O’Donnell in casting the three dissenting votes in Hassler’s case. I am not unsympathetic to the end result in this case: if we rule that the blood sample was admissible as evidence even though it was taken outside the time limit established by the law, Hassler would face a more severe punishment for causing the death of Leondra Mayo.
But the unfortunate truth is that the blood sample was taken after a time lapse more than three times longer than allowed by the law at the time of the incident.
That this court at one time – in the Lucas case – allowed the admission of a test based on a sample withdrawn two and a half hours after the alleged violation does not require us to allow the admission of a test based on a sample withdrawn seven hours after the alleged violation.
The General Assembly must have had a reason for including a “bright-line standard” of two hours when it passed the DUI law. I suggest that the General Assembly is aware that most people in the state know to a reasonable degree of certainty the level of blood alcohol that constitutes a statutory violation and that the General Assembly didn’t want that general knowledge of a per se violation to taint jurors’ consideration of an under-the-influence offense.
Our court’s ruling in the Hassler case is contrary to the plain language of the law, which at the time required the blood to be drawn within two hours after the incident. Our decision in this case defeats whatever purpose the General Assembly had in supplying a hard time limit, and appears to be based on little more than “we did something similar once before.”
Instead, I would hold that Hassler’s test results were inadmissible because the sample was taken more than two hours after the alleged violation. The majority, however, concluded otherwise.EDITOR'S NOTE: The case referred to is State v. Hassler, 115 Ohio St.3d 322, 2007-Ohio-4947. Case No. 2006-1517. Decided Sept. 27, 2007. Majority opinion written by Justice Maureen O’Connor.