An unusual but important precedent was just announced by the Sixth Appellate District, Lucas County, Ohio regarding the use of employer mandated chemical tests in OVI prosecutions. The case, Ohio v. Groszewski, 2009 Ohio 4062, appears to champion a defendant’s Fourth and Fifth Amendment rights.

The case involved a City of Toledo employee who was ordered by his supervisor to submit to a breathalyzer test per his employment contract. The contract required all employees to submit to a chemical test when asked. The employee went to the hospital to have the test performed. The results of the test indicated a blood alcohol level of 0.093, just above the legal limit (.08).

At the time a Toledo Police Officer was also at the hospital on unrelated business when he saw the Toledo City Director of Public Service speaking on his cell phone with a Toledo Police captain. The officer then got on the cell phone and was informed that the Defendant may have been driving a city vehicle under the influence. The officer reentered the hospital, interviewed the defendant’s supervisor who said he saw the defendant drive a city vehicle. The results of the breathalyzer were then revealed to the officer. He interviewed the defendant who made incriminating statements and asked the defendant to perform field sobriety tests. The defendant was then arrested for OVI and asked to submit to a blood test.

Prior to trial, the defendant filed a motion to suppress asking that all tests and statements be suppressed. These were denied by the lower court and the defendant appealed.

The appellate court stated, “The Fifth amendment protects persons against compelled self-incrimination, and any testimony given under compulsion invokes that constitutional right, Murphy v. Waterfront Commission, 378 US 52. If the state forces a public employee to choose between either answering incriminating questions or forfeiting his job for refusing to answer, the state cannot use the employee’s statements against him in a subsequent criminal prosecution if the employee chooses to answer because the statements were not given voluntarily, Garrity v. New Jersey, 385 U.S. 493. Thus, all statements made by the public employee under these conditions become immunized testimony.”

Regarding the admissibility of the breathalyzer and blood tests, the court opined that …”a breath test or a blood test to determine alcohol content for the purpose of proving a criminal offense, is a search and seizure within the meaning of the Fourth Amendment. Schmerber v. California, 384 U.S. 757. The Ohio Supreme Court has previously held that the Fourth Amendment prohibits placing a defendant in a position of choosing between allowing a warrantless search or facing criminal penalties, Wilson v. Cincinnati, 46 Ohio St.2d 138.”

The court went on, “In this case, appellant was compelled to submit to the breathalyzer tests and blood tests, or risk forfeiting his employment. In addition, his employment contract limited his consent to the test and release of the results only to the city of Toledo. Nothing in the agreement refers to the possibility of criminal prosecution or release of information to any law enforcement agency. Appellant was not involved in an accident and was not observed by police to be driving in such a way that would indicate that he was under the influence of alcohol. Since appellant did not submit to the test pursuant to a police investigation or court order, both tests would have been warrantless searches in relationship to any potential criminal action.”

“Likewise, any sobriety tests performed were not incident to any initial police investigation. Rather, they were performed only after appellant agreed to present himself for the employer’s requested testing. Therefore, no probable cause initially existed for police even to be present at the hospital for any type of investigation. Appellant submitted to testing solely at the request of his employer, at the advice of his union representative, with only the potential penalty of losing his job as a consequence.”

It is important to note that the court did express it condemnation of the defendant’s actions, but “neither [could they] condone the “ambush” tactics that were employed to create a criminal offense from an employee’s compliance with his employer’s drug/alcohol testing requirement.”

As a result, the court overruled the findings of the lower court and suppressed both the tests and statements of the defendant.

Therefore, under these limited set of facts an employee can be assured that tests taken in compliance with their employment agreement can not be used in a subsequent criminal proceeding. But, it is important to note the narrow parameters of these facts. First, the employment agreement had no covenant permitting the city to share the test findings with any other agency. Second, the officer viewed no independant indicia of a traffic violation or other criminal activity that would justify an investigatory stop. Had any of the facts been different from those in this case, the finding might be different.

Ordinarily the typical DUI/OVI ticket consists of three violations – the underlining cause for the stop, ie., speeding, assured clear distance, weaving, etc., driving under the influence (see my prior post), and a violation of what is called a “per se” violation for failing a chemical test such as a breathalyzer, blood or urine test.

Black’s law dictionary defines “pre se” as “taken alone…unconnected with other matters.” In the context of OVI/DUI law, the term has come to mean without further physical evidence.

In the typical per se violation, the accused is consuming a volume of alcohol above the legal limit. These limits vary depending upon the type of test given – breath, urine or blood. These are considered scientific tests and Ohio’s DUI laws specifically states if you are driving a vehicle (see an explanation of “driving” in my prior blog) with a prohibitive level of alcohol in your breath, blood or urine, then you can be found guilty without producing any physical evidence that is required of an OVI prosecution (again, see my prior blog).

The admissibility of the results of these tests are dependant upon the arresting agency’s and testing organization’s compliance with the edicts of the Ohio Administrative Code (OAC) and The Ohio Department of Health.

Most breathalyzers and testing procedures are supported by the OAC and, therefore, the burden is upon the arrestee to bring to the court’s attention any anomaly regarding these procedures. Once the anomaly is brought to the court’s attention by way of a Motion to Suppress, the burden then shifts to the prosecution to prove that, in fact, the agency and/or testing organization substantially complied with the OAC and Ohio Department of Health. If the compliance with the procedural standards is less than substantial, the court will suppress the results of the test.

If the court is satisfied that the agency’s procedure was in substantial compliance and if the testing device and procedures are in compliance, then the results of the test are admissible.

Once again, and as I emphasized in prior blogs, the necessity of a trained attorney, who knows the law, to review the agency’s procedures is required if one is to expect their attorney to comply with the due diligence necessary to truly study and find any deviation from proper procedures.