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Ohio DUI/OVI Regulations

DUI/OVI Regulations For Breath, Blood, Urine

Chapter 3701-53 Alcohol Testing

 

3701-53-01 Techniques or Methods.

 

(A) Tests to determine the concentration of alcohol may be applied to blood, breath, urine, or other bodily substances. Results shall be expressed as equivalent to:

 

(1) Grams by weight of alcohol per one hundred milliliters of whole blood, blood serum or plasma (grams per cent by weight);

 

(2) Grams by weight of alcohol per two hundred ten liters of deep lung breath;

 

(3) Grams by weight of alcohol per one hundred milliliters of urine (grams per cent by weight).

 

The results of the tests shall be retained for not less than three years.

 

(B) At least one copy of the written procedure manual required by paragraph (D) of rule 3701-53-06 of the Administrative Code for performing blood, urine, or other bodily substance tests shall be on file in the area where the analytical tests are performed.

In the case of breath tests using an approved evidential breath testing instrument listed in paragraphs (A) and (B) of rule 3701-53-02 of the Administrative Code, the operational manual provided by the instrument’s manufacturer shall be on file in the area where the breath tests are performed.

 

R.C. 119.032 review dates: 08/29/2007 and 08/29/2012

 

Promulgated Under: 119.03

 

Statutory Authority: 3701.143, 3701.13

 

Rule Amplifies: 3701.143

 

Prior Effective Dates: 3/1/1968, 2/1/76, 3/15/83 (Emer.), 6/13/83, 1/1/87, 7/7/97, 9/30/02

3701-53-02 Breath Tests.

 

(A) The instruments listed in this paragraph are approved as evidential breath testing instruments for use in determining whether a person’s breath contains a concentration of alcohol prohibited or defined by sections 4511.19, 1547.11, 2903.06, 2903.08, 4506.15, and/or 4506.17 of the Revised Code, or any other statute or local ordinance equvalent to those in this paragraph prescribing a defined or prohibited breath-alcohol concentration. The approved evidential breath testing instruments are:

 

(1) BAC DataMaster, BAC DataMaster cdm;

 

(2) Intoxilyzer model 5000 series 66, 68 and 68 EN.

 

(B) The instruments listed in this paragraph are approved as additional evidential breath testing instruments for use in determining whether a person’s breath contains a concentration of alcohol prohibited or defined by sections 1547.11 and/or 1547.111 of the Revised Code, or any other statute or local ordinance equivalent to those defined by sections 1547.11 and/or 1547.111 of the Revised Code prescribing a defined or prohibited breath alcohol concentration. The approved evidential breath testing instruments are:

 

(1) Alco-sensor RBT III; and

 

(2) Intoxilyzer model 8000.

 

(C) Breath samples of deep lung (alveolar) air shall be analyzed for purposes of determining whether a person has a prohibited breath alcohol concentration with instruments approved under paragraphs (A) and (B) of this rule. Breath samples shall be analyzed according to the operational checklist for the instrument being used and checklist forms recording the results of subject tests shall be retained in accordance with paragraph (A) of rule 3701-53-01 of the Administrative Code. The results shall be recorded on forms prescribed by the director of health.

 

R.C. 119.032 review dates: 08/29/2007 and 08/29/2012

 

Promulgated Under: 119.03

 

Statutory Authority: 3701.143, 3701.13

 

Rule Amplifies: 3701.143

 

Prior Effective Dates: 3/1/1968, 2/1/76, 3/15/83 (Emer.), 6/13/83, 1/1/87, 5/5/90, 12/12/94, 9/14/95 (Emer.), 7/7/97, 9/30/02

3701-53-03 Blood, Urine And Other Bodily Substance Tests.

 

(A) Alcohol in blood, urine and other bodily substances shall be analyzed based on approved techniques or methods. The technique or method must have documented sensitivity, specificity, accuracy, precision and linearity. The technique or method can be based on procedures which have been published in a peer reviewed or juried scientific journal or thoroughly documented by the laboratory. Approved techniques or methods include:

 

(1) Gas chromatography; and

 

(2) Enzyme assays.

 

(B) Drugs of abuse in blood, urine, and other bodily substances as defined in section 3719.011 of the Revised Code shall be tested using an analytical technique or method approved by the director of health as part of the permit process as specified in rules 3701-53-07 and 3701-53-09 of the Administrative Code. The approved analytical techniques or methods are:

 

(1) Immunoassay;

 

(2) Thin-layer chromatography;

 

(3) Gas chromatography;

 

(4) Mass spectroscopy;

 

(5) High performance liquid chromatography;

 

(6) Spectroscopy.

All positive results of presumptive tests specified in paragraph (B) of this rule must be confirmed by one or more dissimilar analytical techniques or methods and must be part of a testing procedure. The analytical techniques or methods used for confirmation must have similar or improved sensitivity, specificity, accuracy, precision and linearity. The approved techniques or methods can be based on procedures which have been published in a peer reviewed or juried scientific journal or thoroughly documented by the laboratory.

 

(C) The results of tests to determine the concentrations of delta-9-tetrahydrocannabinol (THC), cocaine, or their metabolites must be expressed as positive if the following apply:

 

(1) In blood or other bodily substances if >5 ng/ml THC or >25 ng/ml 11-nor-delta-9-tetrahydrocannabinol carboxylic acid (THC-COOH) or > 50 ng/ml cocaine or > 100 ng/ml benzoylecgonine.

 

(2) In urine if > 15ng/ml 11-nor-delta-9-tetrahydrocannabinol carboxylic acid (THC-COOH) or > 150 ng/ml cocaine or benzoylecgonine.

 

R.C. 119.032 review dates: 08/29/2007 and 08/29/2012

 

Promulgated Under: 119.03

 

Statutory Authority: 3701.143, 3701.13

 

Rule Amplifies: 3701.143

 

Prior Effective Dates: 3/1/1968, 3/15/83 (Emer.), 6/13/83, 1/1/87, 5/5/90, 7/7/97

3701-53-04 Instrument Check.

 

(A) A senior operator shall perform an instrument check on approved evidential breath testing instruments and a radio frequency interference (RFI) check no less frequently than once every seven days in accordance with the appropriate instrument checklist for the instrument being used. The instrument check may be performed anytime up to one hundred and ninety-two hours after the last instrument check.

 

(1) The instrument shall be checked to detect RFI using a hand-held radio normally used by the law enforcement agency. The RFI detector check is valid when the evidential breath testing instrument detects RFI or aborts a subject test. If the RFI detector check is not valid, the instrument shall not be used until the instrument is serviced.

 

(2) An instrument shall be checked using an instrument check solution containing ethyl alcohol approved by the director of health. An instrument check result is valid when the result of the instrument check is at or within five one-thousandths (0.005) grams per two hundred ten liters of the target value for that instrument check solution. An instrument check result which is outside the range specified in this paragraph shall be confirmed by the senior operator using another bottle of approved instrument check solution. If this instrument check result is also out of range, the instrument shall not be used until the instrument is serviced.

 

(B) An instrument check shall be made in accordance with paragraph (A) of this rule when a new evidential breath testing instrument is placed in service or when the instrument is returned after service or repairs, before the instrument is used to test subjects.

 

(C) An instrument check solution shall not be used more than three months after its date of first use, or after the manufacturer’s expiration date (one year after manufacture) whichever comes first. After first use, instrument check solutions shall be kept under refrigeration when not being used. The instrument check solution container shall be retained for reference until the instrument check solution is discarded.

 

(D) Each testing day, the analytical techniques used in rule 3701-53-03 of the Administrative Code shall be checked for proper calibration under the general direction of the designated laboratory director. General direction does not mean that the designated laboratory director must be physically present during the performance of the calibration check.

 

(E) Results of instrument checks, calibration checks and records of service and repairs shall be retained in accordance with paragraph (A) of rule 3701-53-01 of the Administrative Code.

 

R.C. 119.032 review dates: 08/29/2007 and 08/29/2012

 

Promulgated Under: 119.03

 

Statutory Authority: 3701.143, 3701.13

 

Rule Amplifies: 3701.143

 

Prior Effective Dates: 3/1/1968, 2/1/76, 3/15/83 (Emer.), 6/13/83, 1/1/87, 5/5/90, 7/7/97, 3/30/01, 9/30/02

3701-53-05 Collection and Handling of Blood and Urine Specimens.

 

(A) All samples shall be collected in accordance with section 4511.19, or section 1547.11 of the Revised Code, as applicable.

 

(B) When collecting a blood sample, an aqueous solution of a non-volatile antiseptic shall be used on the skin. No alcohols shall be used as a skin antiseptic.

 

(C) Blood shall be drawn with a sterile dry needle into a vacuum container with a solid anticoagulant, or according to the laboratory protocol as written in the laboratory procedure manual based on the type of specimen being tested.

 

(D) The collection of a urine specimen must be witnessed to assure that the sample can be authenticated. Urine shall be deposited into a clean glass or plastic screw top container which shall be capped, or collected according to the laboratory protocol as written in the laboratory procedure manual.

 

(E) Blood and urine containers shall be sealed in a manner such that tampering can be detected and have a label which contains at least the following information:

 

(1) Name of suspect;

 

(2) Date and time of collection;

 

(3) Name or initials of person collecting the sample; and

 

(4) Name or initials of person sealing the sample.

 

(F) While not in transit or under examination, all blood and urinespecimens shall be refrigerated.

 

R.C. 119.032 review dates: 08/29/2007 and 08/29/2012

 

Promulgated Under: 119.03

 

Statutory Authority: 3701.143, 3701.13

 

Rule Amplifies: 3701.143

 

Prior Effective Dates: 3/1/1968, 3/15/83 (Emer.), 6/13/83, 1/1/87, 5/5/90, 9/14/94 (Emer.), 12/12/94, 1/4/96 (Emer.), 3/19/96 (Emer.), 6/13/96, 7/7/97, 9/30/02

3701-53-06 Laboratory Requirements.

 

(A) Chain of custody and the tests results for evidential alcohol and drugs of abuse shall be identified and retained for not less than three years, after which time the documents may be discarded unless otherwise directed in writing from a court. All positive blood, urine and other bodily substances shall be retained in accordance with rule 3701-53-05 of the Administrative Code for a period of not less than one year, after which time the specimens may be discarded unless otherwise directed in writing from a court.

 

(B) The laboratory shall successfully complete a national proficiency testing program using the applicable technique or method for which the laboratory personnel seek a permit under rule 3701-53-09 of the Administrative Code.

 

(C) The laboratory shall have a written procedure manual of all analytical techniques or methods used for testing of alcohol or drugs of abuse in bodily substances. Textbooks and package inserts or operator manuals from the manufacturer may be used to supplement, but may not be used in lieu of the laboratory’s own procedure manual for testing specimens.

 

(D) The designated laboratory director shall review, sign, and date the procedure manual as certifying that the manual is in compliance with this rule. The designated laboratory director shall ensure that:

 

(1) Any changes in a procedure be approved, signed, and dated by the designated laboratory director;

 

(2) The date the procedure was first used and the date the procedure was revised or discontinued is recorded;

 

(3) A procedure shall be retained for not less than three years after the procedure was revised or discontinued, or in accordance with a written order issued by any court to the laboratory to save a specimen that was analyzed under that procedure;

 

(4) Laboratory personnel are adequately trained and experienced to perform testing of blood, urine and other bodily substances for alcohol and drugs of abuse and shall ensure, maintain and document the competency of laboratory personnel. The designated laboratory director shall also monitor the work performance and verify the skills of laboratory personnel;

 

(5) The procedures manual includes the criteria the laboratory shall use in developing standards, controls, and calibrations for the technique or method involved; and

 

(6) A complete and timely procedure manual is available and followed by laboratory personnel.

 

(E) Any time the designated laboratory director is replaced, another permitted laboratory director or applicant shall be designated.

 

R.C. 119.032 review dates: 08/29/2007 and 08/29/2012

 

Promulgated Under: 119.03

 

Statutory Authority: 3701.143, 3701.13

 

Rule Amplifies: 3701.143

 

Prior Effective Dates: 7/7/1997, 9/30/02

3701-53-07 Qualifications of Personnel.

 

(A) Blood, urine, and other bodily substance tests for alcohol shall be performed in a laboratory by an individual who has a laboratory director’s permit or, under his or her general direction, by an individual who has a laboratory technician’s permit. General direction does not mean that the laboratory director must be physically present during the performance of the test. Laboratory personnel shall not perform a technique or method of analysis that is not listed on the laboratory director’s permit.

 

(1) An individual who is employed by a laboratory, which has successfully completed a proficiency examination administered by a national program for proficiency testing for the approved technique or method of analysis for which the permit is sought and who possesses at least two academic years of college chemistry and at least two years of experience in a clinical or chemical laboratory and possesses a minimum of a bachelor’s degree shall meet the qualifications for a laboratory director’s permit.

 

(2) An individual who is employed by a laboratory, which has successfully completed a proficiency examination administered by a national program for proficiency testing for the approved technique or method of analysis for which the permit is sought, has been certified by the designated laboratory director that he or she is competent to perform all procedures contained in the laboratory’s procedure manual for testing specimens and meets one of the following requirements shall meet the qualifications for a laboratory technician’s permit:

 

(a) Has a bachelor’s degree in laboratory sciences from an accredited institution and has six months experience in laboratory testing;

 

(b) Has an associate’s degree in laboratory sciences from an accredited institution or has completed sixty semester hours of academic credit including six semester hours of chemistry and one year experience in laboratory testing;

 

(c) Is a high school graduate or equivalent and has successfully completed an official military laboratory procedures course of at least fifty weeks duration and has held the military enlisted occupational specialty of medical laboratory specialist (laboratory technician); or

 

(d) Is a high school graduate or equivalent and was permitted on or before July 7, 1997.

 

(B) Blood, urine and other bodily substances tests for drugs of abuse shall be performed in a laboratory by an individual who has a laboratory director’s permit or, under his or her general direction, by an individual who has a laboratory technician’s permit. General direction does not mean that the laboratory director must be physically present during the performance of the test. Laboratory personnel shall not perform a technique or method of analysis that is not listed on the laboratory director’s permit.

 

(1) An individual who is employed by a laboratory, which has successfully completed a proficiency examination administered by a national program for proficiency testing for the approved technique or method of analysis for which the permit is sought, who possesses at least two academic years of college chemistry and meets one of the following requirements shall meet the qualifications for a laboratory director’s permit:

 

(a) Has at least five years of experience in a clinical or chemical laboratory and possesses a minimum of a bachelor’s degree in laboratory sciences;

 

(b) Has at least three years of experience in a clinical or chemical laboratory and possesses a minimum of a master’s degree; or

 

(c) Has at least two years of experience in a clinical or chemical laboratory and possesses a minimum of an earned doctoral degree.

 

(2) An individual who is employed by a laboratory, which has successfully completed a proficiency examination administered by a national program for proficiency testing for the approved technique or method of analysis for which the permit is sought, has been certified by the designated laboratory director that he or she is competent to perform all procedures contained in the laboratory’s procedure manual for testing specimens and meets one of the following requirements shall meet the qualifications for a laboratory technician’s permit:

 

(a) Has a bachelor’s degree in laboratory sciences from an accredited institution and has one year experience in laboratory testing;

 

(b) Has an associate’s degree in laboratory sciences from an accredited institution or has completed sixty semester hours of academic credit including six semester hours of chemistry and two years experience in laboratory testing;

 

(c) Is a high school graduate or equivalent and has successfully completed an official military laboratory procedures course of at least fifty weeks duration and has held the military enlisted occupational specialty of medical laboratory specialist (laboratory technician) and two years experience in laboratory testing; or

 

(d) Is a high school graduate or equivalent and was permitted on or before July 7, 1997.

 

(C) Breath tests used to determine whether a person’s breath contains a concentration of alcohol prohibited or defined by sections 4511.19, 4511.191, 1547.11, 1547.111, 2903.06, 2903.08 and/or 4506.15 of the Revised Code, or any other statute or local ordinance prescribing a defined or prohibited breath alcohol concentration shall be performed by a senior operator or an operator. A senior operator shall be responsible for the care, maintenance and instrument checks of the evidential breath testing instruments.

 

(D) An individual meets the qualifications for a senior operator’s permit by:

 

(1) Being a high school graduate or having passed the “General Education Development Test” and

 

(2) Having demonstrated that he or she can properly care for, maintain, perform instrument checks upon and operate the evidential breath testing instrument by having successfully completed a basic senior operator, upgrade or conversion training course for the type of approved evidential breath testing instrument for which he or she seeks a permit.

 

(E) An individual meets the qualifications for an operator’s permit by:

 

(1) Being a high school graduate or having passed the “General Education Development Test”; and

 

(2) Having demonstrated that he or she can properly operate the evidential breath testing instrument by having successfully completed a basic operator or conversion training course for the type of approved evidential breath testing instrument for which he or she seeks a permit.

 

R.C. 119.032 review dates: 08/29/2007 and 08/29/2012

 

Promulgated Under: 119.03

 

Statutory Authority: 3701.143, 3701.13

 

Rule Amplifies: 3701.143

 

Prior Effective Dates: 3/1/1968, 1/1/87, 5/5/90, 9/14/94 (Emer.), 12/12/94, 7/7/97, 9/30/02

3701-53-08 Surveys and Proficiency Examinations.

 

(A) Individuals desiring to function as laboratory directors and laboratory technicians who apply for or are issued permits under rule 3701-53-09 of the Administrative Code shall be subject to surveys and proficiency examinations by representatives of the director of health. A survey or proficiency examination may be conducted at the director’s discretion.

 

(1) A survey shall consist of a review of the permit holder’s or applicant’s compliance with the requirements of this chapter.

 

(2) A proficiency examination shall consist of an evaluation of the permit holder’s, applicant’s or laboratory’s ability to test samples provided by a representative of the director using the techniques or methods for which the permit is held or sought. Proficiency examination samples may be:

 

(a) Mailed to the facility at which the permit holder or applicant uses or plans to use the permit; or

 

(b) Presented in person by a representative of the director at the facility where the permit holder or applicant uses or plans to use the permit.

 

(B) During proficiency examinations, laboratory directors, laboratory technicians and applicants shall accept samples, perform tests, and report all test results to a representative of the director. During surveys and proficiency examinations, permit holders and applicants shall grant the director’s representatives access to all portions of the facility where the permit is used or is intended to be used and to all records relevant to compliance with the requirements of this chapter.

 

(C) Individuals desiring to function as senior operators and operators who apply for or are issued permits under rule 3701-53-09 of the Administrative Code, shall be subject to surveys and proficiency examinations by representatives of the director of health. A survey or proficiency examination shall be conducted at the director’s discretion.

 

(1) A survey shall consist of a review of the permit holder’s or applicant’s compliance with the requirements of this chapter.

 

(2) A proficiency examination shall consist of an evaluation of the permit holder’s or applicant’s ability to test samples provided by a representative of the director using the evidential breath testing instrument for which the permit is held or sought. Proficiency samples are presented to the permit holder or applicant in person by representatives of the director.

 

(D) During proficiency examinations, senior operators, operators and applicants shall accept samples, perform tests and report all results to a representative of the director. During surveys and proficiency examinations, permit holders and applicants shall grant the director’s representatives access to all portions of the facility where the permit is used or is intended to be used, and to all records relevant to compliance with the requirements of this chapter.

 

R.C. 119.032 review dates: 08/29/2007 and 08/29/2012

 

Promulgated Under: 119.03

 

Statutory Authority: 3701.143, 3701.13

 

Rule Amplifies: 3701.143

 

Prior Effective Dates: 3/1/1968, 5/5/90, 7/7/97, 9/30/02

3701-53-09 Permits.

 

(A) Individuals desiring to function as laboratory directors or laboratory technicians shall apply to the director of health for permits on forms prescribed and provided by the director. A separate application shall be filed for a permit to perform tests to determine the amount of alcohol in a person’s blood, urine or other bodily substance, and a separate permit application shall be filed to perform tests to determine the amount of drugs of abuse in a person’s blood, urine or other bodily substance. A laboratory director’s and laboratory technician’s permit is only valid for the laboratory indicated on the permit.

 

(1) The director shall issue appropriate permits to perform tests to determine the amount of alcohol in a person’s blood, urine or other bodily substance to individuals who qualify under the applicable provisions of rule 3701-53-07 of the Administrative Code or under paragraph (A) of this rule. Laboratory personnel holding permits issued under this rule shall use only those laboratory techniques or methods for which they have been issued permits.

 

(a) The laboratory where the permit holder is employed shall have successfully completed a proficiency examination from a national program for proficiency testing using the applicable techniques or methods, and provide to representatives of the director all proficiency test results.

 

(b) Permit holders shall successfully complete proficiency examinations by representatives of the director using the techniques or methods for which they have been issued permits.

 

(2) The director shall issue appropriate permits to perform tests to determine the amount of drugs of abuse in a person’s blood, urine or other bodily substances to individuals who qualify under the applicable provisions of rule 3701-53-07 of the Administrative Code or under paragraph (A) of this rule. Laboratory personnel holding permits issued under this rule shall use only those laboratory techniques or methods for which they have been issued permits.

The laboratory where the permit holder is employed shall have successfully completed a proficiency examination from a national program for proficiency testing unsing the applicable techniques or methods, and provide to representatives of the director all proficiency results.

 

(B) Individuals desiring to function as senior operators or operators shall apply to the director of health for permits on forms prescribed and provided by the director of health. A separate application shall be filed for each type of evidential breath testing instrument for which the permit is sought.

The director of health shall issue appropriate permits to perform tests to determine the amount of alcohol in a person’s breath to individuals who qualify under the applicable provisions of rule 3701-53-07 of the Administrative Code. Individuals holding permits issued under this rule shall use only those evidential breath testing instruments for which they have been issued permits.

 

(C) Permits issued under paragraphs (A) and (B) of this rule shall expire one year from the date issued, unless revoked prior to the expiration date. An individual holding a permit may seek renewal of an issued permit by the director under paragraphs (A) and (B) of this rule by filing an application with the director no sooner than six months before the expiration date of the current permit. The director shall not renew the permit if the permit holder is in proceedings for revocation of his or her current permit under rule 3701-53-10 of the Administrative code.

 

(D) To qualify for renewal of a permit under paragraphs (A) or (B) of this rule:

 

(1) A permit holder shall present evidence satisfactory to the director that he or she continues to meet the qualifications established by the applicable provisions of rule 3701-53-07 of the Administrative Code for issuance of the type of permit sought.

 

(2) If the individual seeking a renewal permit currently holds a laboratory technician or laboratory director permit, the permit holder shall meet the requirements of paragraph (A) of this rule.

 

(3) If the individual seeking a renewal permit currently holds an operator or senior operator permit, the permit holder shall have completed satisfactorily an in-service course for the applicable type of evidential breath testing instrument which meets the requirements of paragraph (B) of this rule, which includes review of self-study materials furnished by the director.

 

R.C. 119.032 review dates: 08/29/2007 and 08/29/2012

 

Promulgated Under: 119.03

 

Statutory Authority: 3701.143, 3701.13

 

Rule Amplifies: 3701.143

 

Prior Effective Dates: 3/1/1968, 1/1/87, 5/5/90, 9/14/94 (Emer.), 12/12/97, 7/7/97, 9/30/02

3701-53-10 Revocation and Denial of Permits.

The director of health may deny or revoke the permit of any permit holder or individual seeking a permit:

 

(A) Who obtains or seeks to obtain a permit falsely or deceitfully;

 

(B) Who fails to comply with any of the provisions of rules 3701-53-01 to 3701-53-09 of the Administrative Code; or

 

(C) Who:

 

(1) As a senior operator, fails to demonstrate that he or she can properly care for, maintain, perform instrument checks upon, and operate the breath testing instrument for which the permit is held;

 

(2) As an operator, fails to demonstrate that he or she can properly operate the breath testing instrumentfor which the permit is held;

 

(3) As a laboratory director or laboratory technician, fails to demonstrate that he or she can properly perform the technique or method of analysis for which the permit is held; or

 

(4) As the designated laboratory director, fails to comply with paragraph (D) of rule 3701-53-06 of the Administrative Code.

 

R.C. 119.032 review dates: 08/29/2007 and 08/29/2012

 

Promulgated Under: 119.03

 

Statutory Authority: 3701.143, 3701.13

 

Rule Amplifies: 3701.143
Prior Effective Dates: 3/1/1968, 1/1/87, 5/5/90, 7/7/97, 9/30/02

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