Oral Intake and the Twenty-Minute Rule

THE LAW RELATING TO “ORAL INTAKE” AND THE “TWENTY-MINUTE OBSERVATION PERIOD.

When applying the science to the law, the Court can look to recent law as set forth below which would grant the court the power to invalidate the test.  However, the State’s best argument is to avoid application of the science by the court and have the issue go before a jury.

1. SUBSTANTIAL COMPLIANCE IS NOT MET WHEN THE DEFENDANT TAKES A TEST WITH A FOREIGN OBJECT IN HIS MOUTH.

In State v. Baldridge 2001-Ohio-7029, 2001 WL 1673756 (Ohio Ct. App. 5^th Dist. Ashland Co. 2001) as cited in Painter, Ohio Driving Under the Influence Law (2007 Ed.), p 121, the Court held that whether a subject has something in his mouth is a bright-line rule to which the substantial compliance standard is inapplicable. (emphasis added). Within the context of Ohio Adm. Code 3701-53-02, the term “oral intake” for purposes of submitting to a chemical test, means that material must be orally ingested in such a manner that it would be digested and pass into the blood stream, or received into the respitory system and interact with alveolar air so as to have an effect on the breath test result. State v. Birth (1987) , 41 Ohio App. 3d 113.  The science cited above and a clear reading of both the case law and Ohio Adm .Code 3701-53-02 would result in the test being excluded.

1. EVEN UNDER A SUBSTANTIAL COMPLIANCE STANDARD THE COURT CAN PREVENT THIS TEST FROM COMING IN.

It is within the trial court’s discretion to weigh evidence and determine credibility whether the required observation period was met. State v. Edens, 1987 WL 15054 (Ohio Ct. App. 11^th Dist. Portage County 1987); State v. Williamson, 1985 WL 6754 (Ohio Ct. App. 1^st Dist. Hamilton County 1985); State v. Trill, 66 Ohio App.3d 622, 585 N.E.2d 914 (11^th Dist. Trumbull County 1991); State v. Gregory, 1999 WL 756440 (Ohio Ct. App. 7^th Dist. Columbiana County 1999).

The State’s best argument for introduction of the test is that it substantially complied with the testing procedures set forth by the Ohio Department of Health.  The State can effectively side-step the science, cited above, and argue that foreign materials were already in the Defendant’s mouth during the twenty minute observation period.  That is the argument made in State v. Arledge, 4^th Dist Ct. App. Hocking County 91-WL 5059.  The argument therein stated that because the officer followed the ODH regulations and no “oral intake” occurred during the twenty minute observation period, substantial compliance required the issue to go to the jury.

In effect the Arledge court interpreted Ohio Adm. Code 3701-53-02 to preclude only oral intake. Within the context of Ohio Adm. Code 3701-53-02, the term “oral intake” for purposes of submitting to a chemical test, means that material must be orally ingested in such a manner that it would be digested and pass into the blood stream, or received into the respitory system and interact with alveolar air so as to have an effect on the breath test result. (emphasis added) State v. Birth (1987) , 41 Ohio App. 3d 113.

The mouth and throat are part of the respitory system.   The presence of trapped alcohol in the dentures would be received into the respitory system and would have an effect on the results.  Such an interpretation would bring the two cases in compliance with the later case law (State v. Baldridge) cited above.  In dicta, even the Arledge court suggests that the best course of action would be to remove the foreign materials.

A further factor which is only addressed in the footnotes of Arledge is the courts “gatekeeper” function.  The trial court has broad discretion in admitting and excluding evidence based on scientific processes. State v. Bresson (1990), 51 Ohio St.3d 123, 129.  Further, Evid.R. 403 grants the court power to exclude “junk” science via a motion in limine.  From a purely procedural aspect the entire Arledge decision is rendered moot by a proper request in limine.

In State v. Siegel, 138 Oiho App.3d 562, 2000-Ohio-1747, 741 N.E.2d 938 (3d. Dist. Logan County 2000), the Court ruled that the oral intake of any material, including water, renders the test as not substantially compliant with ODH regulations.  In State v. Dixon, 2002-Ohio-6174, 2002 WL 31521434 (Ohio Ct. App. 5^th App. Dist. Stark County 2002), the ingestion of breath mints during the twenty minute observation period resulted in a finding that the State had not substantially complied.