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Ohio Criminal Defense Attorney on Urine Testing in OVI Cases

Hi, this is Erica Merrill and I’m the founder of perfectly legal video. I would loveto thank you all for joining us today. We will be speaking with attorney Brian Jones.He owns a criminal defense law firm out of Ohio. Welcome.

SPEAKER 2
00:16 – 00:17
Hi Erica. Thanks for having me today.

SPEAKER 1
00:18 – 00:45
You are very welcome. We always love seeing you now. I see here that we are going to be talking about a very interesting point of fact that you’ve brought to us, and that is about the urine testing that is used in drug OVI cases and how urine tests are the most frequently used, but often the least effective. Can you tell us a little bit more about that

SPEAKER 2
00:47 – 01:13
Absolutely. Erica. So you’re in tests are so ineffective and so inaccurate for three primary reasons. First, the collection process is often erroneous. Second, the storage and transportation of the sample to the lab that’s doing the test is often not done properly. And lastly, the analysis itself leaves room for all, a lot of errors in the process.

SPEAKER 1
01:15 – 01:35
now when they’re taking the tests, you were saying that the collection process is often, is fraught with errors, and I know that some of the languages, the first void and a second Boyd, can you tell us a little bit more about what that means and why that’s so important

SPEAKER 2
01:36 – 02:60
Absolutely. Erica. So in the human body, the kidneys filter out all sorts of foreign substances, including alcohol and the metabolites that drugs break down into, through a process called the nephrotic system. they use a filtering unit called nephrons. So this filter rate in each individual is different. So each individual person has a different rate that they metabolize substances out of their body. The nephrotic system then puts all of those foreign substances into the bladder and stores it as urine. The first void versus second void issue becomes so significant because of those different rates and because each person is unique in the first void scenario, the, the collection of a sample in an accused person is likely to have a higher concentration of all of these substances due to the nephrotic systems process, reliable scientific evidence, demands that an analysis before be performed on both a first void and a second void sample to ensure that the first void, the first urination doesn’t have an abnormally high collection of foreign substances in it.

SPEAKER 2
03:00 – 03:57
foreign substances that could have been consumed several hours before even operation occurred. some medical tests, you may know, Erica, and, and I’m sure a lot of our viewers have experienced, you’ll get word from your doctor’s office. you’re coming in for some testing tomorrow. We want to make sure after X time in the evening, you stop eating and drinking, so that we make sure that your nephrotic system has properly processed all of that substance out. And we’re only collecting the information about your body, this stuff that the body naturally processes out well, the same goes for alcohol or your medication that you may be taking on a regular and prescribed basis. Your body processes that out on a regular basis and on a set schedule, that’s unique to each individual. The problem with the first Boyd is that it’s that higher concentration.

SPEAKER 2
03:58 – 04:54
That could be from a significantly longer period of time. The testing timing causes variability of the concentration of alcohol in the bladder. and for example, the post absorption phase, there are three phases to the, to the processing of alcohol. there’s the absorb, there’s the consumption phase where you’re consuming alcohol, the absorption phase, where the alcohol starts to take effect on your body and the post absorption phase as your body is processing that alcohol out of your body. Only during the absorption phase, does the alcohol actually affect your motor skills, your thinking, your, your ability to balance and make judgments in the post absorption phase, the effects of the alcohol are long gone, but the alcohol metabolites that are measured for in the analysis can still be present.

SPEAKER 1
04:56 – 05:45
Oh my gosh, Brian, I, first of all, they do call me to tell me that if I’m going to have a urine test the next day for the doctors, but they’ve never given me all of this information, where are you a doctor in a former life How do you know all of this stuff just play one in court I think it’s great. I feel like we’re going to have to get a whiteboard for this. well, can you tell me then with all of the information you gave us I mean, it just sounds like they’re not treating these urine tests the same way a real medical professional would to make sure that the results are clear. So if that’s the case, why are they using urine tests as a, as their, their main way of testing

SPEAKER 2
05:46 – 06:51
There are a few reasons for that. The first reason that officers use urine tests more frequently than say a blood test is because of the invasiveness level of urine collection versus a blood collection for a urine test. Somebody has to watch you urinate into a cup. Whereas for a blood sample, a needle has to be inserted into the body under Ohio law. For that to happen. The officer frequently has to have a warrant to collect that sample. And so it’s more difficult even though it’s more accurate. Officers just don’t want to go through that extra step of getting a warrant. Secondly, urine, as opposed to let’s say a breath sample is the only method that can identify impairment by drugs. In many cases, your breath isn’t going to have, the indicators that would typically be present in an alcohol case. When an officer suspects, a person is impaired by drugs, the, the respiratory system just doesn’t process out, drugs in that way.

SPEAKER 2
06:51 – 08:31
But the urine system does so substances like marijuana, LSD, MTMA, which is frequently referred to as Molly, and prescription drugs, can only be identified either through a blood or a urine test. Erica we’ve actually had a client that was accused of OVI because she was taking her regularly, prescribed her legitimately prescribed Adderall, according to her prescription. But Adderall of course is a stimulant. And so because she had a stimulant in her system and she was driving a bitter radically, she was accused of, of driving while intoxicated. This calls back to some of our prior discussions about the differences between a per se Obi and an impaired OVI. So in that particular client’s case, because she was taking Adderall at her prescribed level, the amount of the substance in her urine exceeded the statutory prohibition. according to Ohio law, now, what we were able to demonstrate is that that Adderall didn’t impair her ability to drive in any way. And therefore it wasn’t a factor in, the driving that she engaged in. She, she had gone around a couple of cars on back country roads, and somebody had called her in and, and reported her as a reckless driver. The state then had to prove their case on the impairment ground, did the stimulant, the Adderall that was legitimately prescribed to her, impair her ability to operate a motor vehicle. And we were able to demonstrate that it did not.

SPEAKER 1
08:33 – 08:56
Wow. That is amazing. She’s very lucky to have such an intelligent lawyer that does the research behind her in that case. so maybe, you know, with, with everything that we know, and, and it sounds like a lot of times these urine samples are not being taken the right way. Maybe you could shed some light on what the right of taking

SPEAKER 2
08:56 – 09:57
A urine sample would be. How, how can you get the best results from that We could do an entire discussion on the proper collection and testing of a urine sample, but broadly speaking, it falls into five categories. First, the urine sample has to be collected in a stare out cup that’s in order to prevent bacteria being in the cup, which then, then cause fermentation, you could have an individual that had consumed zero alcohol, over the course of, you know, between their, their multiple urines over the course of a day. But if bacteria gets in that cup, the natural sugars that are in your urine will ferment and then register a positive alcoholic. So the cup has to be sterile first and foremost, second, the officer’s required by Ohio law to put a fluoride tablet into the collected urine. That’s again, to prevent and reduce the likelihood of fermentation during the transport and storage processes.

SPEAKER 2
09:58 – 10:59
Third. And this is something that Ohio does not do, but we also, we often make this argument in court that we make this argument to juries all the time is that officers should collect what they first and a second void of urine so that when we do the analysis later down the road, we have something to compare the samples to is this first sample an improperly concentrated, improperly collected, possibly sample. And does the second collection actually more accurately demonstrate the substance alcohol content of the individual who was accused of the driving infraction Lastly, I’m sorry, fourth, immediate refrigeration is critical. Now. We all know what happens when you take a gallon of milk and you stick it out on the front porch, or maybe even you leave it in your count, the, on your counter, over the course of several decades, the, the sugars in that and the bacteria in the milk starts to ferment.

SPEAKER 2
10:59 – 12:17
And eventually that milk is going to explode and cause a huge gross maths while your, your in sample, isn’t going to explode in a ups truck. officers frequently take that urine sample and toss it in the most convenient repository box to be picked up at some point and most carrier systems pick up every 24 hours, but that’s 24 hours sitting in a, in a hot collection box at, I dunno, a hundred degrees and 120 degrees, 150 degrees depending on the day. and then there’s of course the transportation we advise and, and we always make the argument to juries that those samples should be refrigerated. Start to finish officers, have the opportunity to use an overnight service, to get the samples from the collection location, to the lab where they have appropriate refrigeration available. They just choose not to use it. Lastly, the quantitative analysis must be performed promptly and it must be performed properly. And again, we’re looking at the fermentation issue as far as timeliness of it, and then accuracy of scientific testing in performance of those tests, according to accepted standards.

SPEAKER 1
12:19 – 13:04
Wow. I mean, the pictures that you were painting are so vivid and, I’m not going to eat my dinner for a little while listening to this, but, but that, that sounds like a terrible situation for your client. I mean, they are basically putting their life in the hands of the police officer that is handling their urine sample and hoping that they do it the proper way and, hoping that it’s refrigerated and collected in a timely manner and a sterile, I mean, there’s just, it seems like there are so many moving parts that in a busy police station, a lot of these things can get missed. Am I right

SPEAKER 2
13:06 – 13:55
You’re absolutely right. Erica. One of the things that I’ve done over the last six months is I wrote a book for individuals who are accused of Obi. And we sell that book on Amazon. You can also reach out to my office to get a copy of the book. We often get messages from individuals who say, well, just don’t drink and drive, and you’ll never find yourself in this situation. But the reality of the situation is, is that you don’t have to drink and drive to get accused of drinking and driving. A deer runs out in front of you. You run into a tree as the result of the deer. And then the officer comes up and says, well, you know, I just think that you’re impaired. For whatever reason, you could be on elderly person who just speaks and moves slowly. You could be a person who has a natural list.

SPEAKER 2
13:55 – 14:32
And so the officer thinks that you have slurred speech and as the result of the car accident, you’re a bit disoriented and not moving in the most precise way you possibly could. They then decide, well, I don’t necessarily smell an odor of alcohol, so you’ve gotta be impaired by drugs. And that urine sample that’s collected in that situation, then, you know, runs into all of these problems. So people can be accused of this crime in particular, under very broad ranges of circumstances where they didn’t do anything wrong, other than being in the wrong place at the wrong time.

SPEAKER 1
14:34 – 15:18
And that is too bad. And I know exactly what you mean. I mean, I know that, like, for example, if you’re overweight or if you’re like myself and you have no arches, so, you know, if I’m trying to wear any kind of heel, it’s just forget about it. I’m not gonna, I want walk like a sailor, just why I wear flats, but you know, a lot of people are coming from work and they are walking in their work shoes. And, you know, it’s, it seems like a bad situation. What if they just came from the beach and they’re in flip flops and they trip over something. I mean, it’s just, there’s a lot of unstable surfaces that could account for somebody being pulled into the police station.

SPEAKER 2
15:19 – 15:41
That’s absolutely true, Erica. There, there are a million things that can go wrong that end up with an individual being accused of any criminal offense, including an OVI. And you know, what we always tell people is nobody expects to be charged with a criminal offense, but anyone can be charged with a criminal offense, whether they did something wrong or not.

SPEAKER 1
15:44 – 16:19
Well, you know, I really appreciate your bringing all of this to light. This is really great information for people to pass along. it’s great for them to have just in case something ever happens because an OVI is really the crime that, you know, somebody who’s never been a criminal can be, can be arrested for. And you know, it may not be their fault. It might just be like you said, wrong place, wrong time. And they might be on medications that were subscribed to them. That actually don’t cause them to be impaired. Somebody just made a decision.

SPEAKER 2
16:21 – 16:41
That’s absolutely right. Erica, there’s, there’s so many prescription drugs out there that people are on all the time. Taking according to their proper prescriptions, never warned by their doctor that they could ultimately be accused of and potentially convicted of a crime because they’re taking the medication that they need to survive.

SPEAKER 1
16:43 – 16:56
Well, this has been very, very helpful. we’ve gone through quite a big range in a short time of information. Is there anything that you feel that we’ve missed, on this particular topic,

SPEAKER 2
16:57 – 17:36
Erica, the last thing that I would add is anybody that finds themselves in this situation that finds themselves on the side of the road. An officer is accusing them of driving drunk or driving hopped up on meds should really contact a lawyer before they take that chemical sample. It’s a critical moment where the attorney who’s properly educated and knows about these things can advise the individual of the consequences of taking that sample and what it would mean for an ultimate charge. Should that come down the road Eventually,

SPEAKER 1
17:38 – 19:08
That is really great information. A lot of people don’t realize that they canactually make that call before they take any tests or, or, you know, before anyactions are taken in their case. So, I mean, I’d love to mention that I believe thatthe attorney’s office that they should call if they’re in the Ohio area or is youroffice because you are one of the most educated attorneys that I know every time wehave these, these calls and these interviews, you have obviously taken a lot of stepsto get the extra education needed to where you can talk, like you’re a doctor and inthe courtroom, and that wins cases when you can really see where all of the things gowrong. I mean, you’re not looking to have drunk drivers go out on the street, but youare looking to protect people whose rights, you know, might’ve been taken from themfor the wrong reasons and it may have been unnecessary. And so it’s fantastic. Andyou guys are open during these tough times. You’re doing things virtually. So callnow as opposed to later get your options. And you know, I know you’ll be in goodhands. If you call the office of Brian Jones for this help, for those kinds of words,you are welcome. We absolutely enjoy having you on the show. So thank you forwatching and tune in next week for some more vital information on criminal law.