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Media > Newsletters > Law Enforcement Bulletin > September 2014 > Traffic (OVI, Voluntary Collection and Storage of Bodily Fluids): Ohio v. Ossege

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Traffic (OVI, Voluntary Collection and Storage of Bodily Fluids): Ohio v. Ossege

Questions: 1) Do you have to first inform a suspect that he can refuse to give a urine sample before his consent can be voluntarily given? 2) Is a sample considered compromised if you do not fill out the required information on the label?
Quick Answers: 1) No, informing the suspect he can refuse to give a sample is not a prerequisite to voluntary consent. It is, however, one of the factors a court will consider to determine the voluntariness of the consent. 2) No, the sample wouldn’t be compromised as long as other unique identifiers can link it to the suspect.
State of Ohio v. Ossege, Twelfth Appellate District, Clermont County, July 21, 2014
Facts: An officer was dispatched to the scene of a vehicle accident involving two pedestrians. Anthony Ossege and his two children were in the vehicle, and a pedestrian was dead. The officer did not observe any signs that Ossege was impaired, and he denied drug or alcohol use. Ossege was transported back to the station to write his statement and while there was asked to give, and consented to, a urine sample. The sample was kept in the refrigerator for two days and mailed to the crime lab. The results indicated 356.16 nanograms of marijuana per milliliter. Ossege filed a motion to suppress, claiming the sample was not given voluntarily because he was never told he did not have to give it. Ossege also argued the sample was incorrectly collected and stored, thus should be thrown out.
Importance: The collection of bodily fluid is a seizure under the Fourth Amendment and requires a warrant unless an exception applies. One exception is where the suspect voluntarily consents. While the subject’s knowledge that he can to refuse to give a sample is a factor in voluntariness, it is not a prerequisite to establishing voluntary consent. The court will look at the totality of the circumstances. In this case, the court considered all of the other factors and determined Ossege had given voluntary consent — he was voluntarily transported to the station, was not under arrest, was being cooperative in the investigation, and there were no threats or coercion by the officer. The officer’s failure to inform Ossege that he did not have to give a sample did not change the voluntariness of the consent.
Ohio Administrative Code (O.A.C.) 3701-53-05(E) requires samples to be labeled with the name of the suspect, date and time of collection, name or initials of the person collecting the sample, and name or initials of the person sealing the sample. Ossege questioned whether the sample belonged to him because it did not contain his name and was placed in the refrigerator with nine other samples. The court determined that even though the sample did not contain Ossege’s name, it was properly collected, stored, and identified by the police officer who made the collection. It also contained other information, such as the officer’s name and date of collection, which provided unique identifiers.
Keep in Mind: This case highlights when simple errors or oversights can lead to big issues for a case. If the officer would have done two simple things, these issues would not be before a court: 1) inform Ossege he could refuse the test, and 2) filled out the sample’s label completely.
Another Look: In Baker, the court threw out BAC samples collected from a suspect. It found the officer failed to comply with O.A.C. 3701-53-05(F), which requires that blood and urine samples be refrigerated unless in transit or under examination. Because the trooper failed to refrigerate the samples for four hours and the state did not show the samples were not compromised due to lack of refrigeration, the BAC results were thrown out. State of Ohio v. Baker, Eleventh Appellate District, Ashtabula County, June 30, 2014
More on Traffic
At or Before the Line: You stop a car for a traffic violation because it failed to stop before the solid bar stop and instead stopped on the line. When you approach the car, you detect a strong odor of alcohol, and the driver’s eyes are red, bloodshot, watery, and glassy. You administer the field sobriety tests, which results in failure. The city ordinance states “… every driver of a vehicle approaching a stop sign shall stop at a clearly marked stop line …” Did you have a reasonable articulable suspicion for the stop? The court in Drushal said no. It determined the city ordinance did not require a vehicle to be stopped before the white line, but at the white line. The court defined “at” as meaning “in, on, or near.” Since the officer misunderstood the law and the vehicle was stopped on the line, there was no reasonable articulable suspicion for the stop. State of Ohio v. Drushal, Ninth Appellate District, Wayne County, July 14, 2014
Electronic Traffic Tickets: The Ohio Supreme Court has adopted amendments to the Ohio Traffic Rules about electronic tickets. In January, the traffic rules were modified to allow the use of e-tickets under a pilot project. But the project did not consider the use of a hybrid system in which officers  issue tickets electronically, but rather file paper tickets with the court. As a result, amendments to Traffic Rule 3 deleted the requirement that an electronic ticket meet the mandatory “form and content” requirement of a paper ticket. The amendments also require that any paper ticket generated from the e-ticket be of sufficient quality to meet record retention requirements. The amendments appear on the Ohio Supreme Court website.