Effective January 23, 2023, Ohio has new regulations governing chemical testing in DUI cases (called ‘OVI’ in Ohio). The revised rules authorize the use of oral fluid testing, approve new breath-testing machines, and revise requirements for the maintenance of testing equipment.
Ohio Rules for Testing Bodily Substances
In Ohio, the legislature has delegated to the Ohio Department of Health the responsibility of developing rules regarding the testing of bodily substances for OVI cases. Ohio Revised Code section 4511.19(D) states a defendant’s bodily substance, “shall be analyzed in accordance with methods approved by the director of health”. The methods approved by the Director of Health are contained in chapter 3701-53 of the Ohio Administrative Code (OAC).
OAC Chapter 3701-53 contains many regulations for bodily substance testing. There are rules for administering breath tests, blood tests, and urine tests. There are also requirements for the instruments used for chemical testing, the laboratories in which the tests are administered, and the personnel conducting the tests. The regulations were last revised in 2013.
Foreshadowing the Changes
In November of 2022, we got a hint the regulations would be changing when local media reported that Ohio intends to begin testing oral fluid for OVI cases. According to the report, the Ohio Traffic Safety council held multiple meetings, which resulted in the recommendation that Ohio implement oral fluid testing to combat the problem of drugged driving. To implement this change would require a revision of OAC Chapter 3701-53, as the regulations did not approve oral fluid testing.
Oral Fluid Testing
Oral fluid testing is approved in the new regulations. OAC 3701-53-02(A) now states, “Tests to determine the concentration of alcohol, drugs of abuse, a controlled substance or metabolite of a controlled substance may be applied to blood, breath, urine, or other bodily substances, including oral fluid.” In addition, OAC 3701-53-02(B) provides that test results may be expressed in terms of the “presence of a drug of abuse, controlled substance, or other impairing substance in oral fluid”.
With this new regulation in place, if a law enforcement officer suspects a driver is under the influence of drugs, the officer can swab the suspect’s mouth to collect oral fluid. The officer then inserts the collection swab into an analyzing kit. Using the immunoassay testing method, the analyzing kit analyzes the oral fluid and provides test results regarding the presence of impairing substances. The officer may use that information when deciding whether to arrest the suspect, and the test results may be used in court.
Other Regulation Revisions
The approval of oral fluid testing was not the only change in the new regulations. The revised rules provide approval for two new breath-testing machines (the Intox DMT and the Intoxilyzer 9000) and the phasing-out of two old breath-testing machines (the BAC Datamaster and the Intoxilyzer 5000). The new regulations also change requirements related to the maintenance, accuracy checks, and certification of breath-testing machines.
Good Intention, Bad Choice
When revising the regulations to approve oral fluid testing, the Ohio government had the good intention of combatting the problem of drugged driving. The government’s chosen method, however, is not very effective, as oral fluid analysis is not a reliable testing method. In fact, for the drug most commonly encountered, THC, testing oral fluid has proven to be ineffective. The road to ineffectiveness is paved with good intentions.
About the Author: Shawn Dominy is a leading DUI lawyer in Ohio and the founder of the Dominy Law Firm in Columbus, Ohio. He can be reached through his law firm’s website: Dominy Law Firm.