[Cite as State v. Benefield, 2025-Ohio-1116.]
COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO, : JUDGES: : Hon. Craig R. Baldwin, P.J. Plaintiff - Appellee : Hon. William B. Hoffman, J. : Hon. Andrew J. King, J. -vs- : : UNDRAY BENEFIELD, : Case No. 2024CA00067 : Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, Case No. 2023 CR 1603
JUDGMENT: Affirmed
DATE OF JUDGMENT: March 28, 2025
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KYLE L. STONE DONOVAN R. HILL Prosecuting Attorney 122 Market Ave. North Stark County, Ohio Dewalt Building, Ste. 101 Canton, Ohio 44702 By: CHRISTOPHER A. PIEKARSKI Assistant Prosecuting Attorney 110 Central Plaza South, Ste. 510 Canton, Ohio 44702-1413 Baldwin, P.J.
{¶1} The appellant, Undray Benefield, appeals from the trial court’s decision
denying his motion to suppress the results of a blood draw taken pursuant to a warrant
following his involvement in a fatal automobile accident. Appellee is the State of Ohio.
STATEMENT OF THE FACTS AND THE CASE
{¶2} On June 20, 2023, at approximately 9:20 p.m., the appellant ran a red light
at the intersection of East State Street and South Seneca Avenue, in Alliance, Ohio,
causing a fatal, two-vehicle accident. When law enforcement officers arrived at the scene
the appellant was attempting to leave on foot. The appellant was initially transported to
Aultman Hospital in Alliance, where Sergeant Christopher McCord made contact with him
shortly after the accident in order to conduct a follow-up interview for the crash
investigation. The appellant refused to cooperate with hospital staff, and they had to
physically restrain him and force medication into his IV in order for him to be docile enough
to be intubated so he could be treated for his injuries. Sergeant McCord smelled the odor
of alcohol emitting from the appellant’s person.
{¶3} Based upon the appellant’s odor of alcohol, Sergeant McCord sought and
obtained a search warrant to draw a sample of the appellant’s blood. He thereafter
proceeded to Aultman Hospital in Canton, where the appellant had been transferred for
further treatment, with “collection kits,” which included blood vials. Sergeant McCord
presented the warrant to hospital staff, who contacted their legal department, who then
approved the blood draw. Sergeant McCord signed paperwork for the blood draw at 12:17 a.m., less than three hours after the crash was reported and within the statutorily required
three-hour timeframe, and then personally witnessed the blood draw.
{¶4} The results of the appellant’s blood draw evidenced his level of intoxication
at the time of the collision, which was in excess of that allowable by law. The matter was
bound over from the Alliance Municipal Court, and on August 24, 2023, the Stark County
Grand Jury indicted the appellant on the following charges:
• Count 1: aggravated vehicular homicide, in violation of R.C.
2903.06(A)(1)(a)/(B)(2)(b)(i), a felony of the first degree;
• Count 2: aggravated vehicular homicide, in violation of R.C.
2903.06(A)(1)(a)/(B)(2)(a), a felony of the second degree;
• Count 3: aggravated vehicular homicide, in violation of R.C.
2903.06(A)(2)(a)/(B)(3), a felony of the third degree;
• Count 4: operating a vehicle under the influence of alcohol, a drug of
abuse or a combination of them (“OVI”), in violation of R.C.
4511.19(A)(1)(a)/(A)(1I)G)/(A)(1)()/(G)(1)(b), a misdemeanor of the
first degree; and,
• Count 5: driving under suspension or in violation of license
restriction, in violation of R.C. 4510.11(A)/(D)(1), a misdemeanor of
the first degree.
The appellant was arraigned on September 1, 2023, at which time he pleaded not guilty
to the charges set forth in the indictment.
{¶5} On September 14, 2023, the appellant filed a motion to suppress the results
of his blood test in which he set forth a general assertion that the appellee could not demonstrate the blood sample was collected, handled, transported, or analyzed in
compliance with R.C. 4511.19 and with the Ohio Department of Health rules regarding
chemical tests. He did not provide any specific allegations of purportedly non-compliant
handling of his blood samples in his motion. On October 2, 2023, he supplemented his
motion with a motion to suppress his urine test.
{¶6} The trial court conducted a suppression hearing on October 12, 2023, at
which the appellee presented the testimony of the following four witnesses: (1) Sergeant
McCord of the Alliance Police Department; (2) Nurse M.R. of Aultman Hospital in Canton;
(3) Criminalist L.P. of the Ohio State Highway Patrol (“OSHP”) Crime Lab; and, (4)
Criminalist L.M. of the OSHP Crime Lab.
{¶7} Nurse M.R. testified that she was working at Aultman Hospital in Canton
that night, and both treated the appellant and encountered Sergeant McCord. She
performed a blood draw on the appellant pursuant to the search warrant presented by
Sergeant McCord using an already-established IV site on the appellant to avoid causing
any additional, unnecessary trauma by poking him with another needle; drew a standard
“waste” of 10 mL of blood; attached a Vacutainer (and the tubes provided by Sergeant
McCord’s kit); and, drew the appellant’s blood. According to M.R., it was a standard blood
draw and nothing abnormal occurred. She could not say whether any antiseptic was
applied to the appellant’s skin prior to drawing his blood because the IV was already
placed prior to the appellant’s arrival at the Canton location of Aultman Hospital.
{¶8} Once the blood tubes were filled, M.R. labeled them and handed them back
to Sergeant McCord, who testified that he personally delivered the blood tubes to the secure property room at the Alliance Police Department, where they were held
temporarily in a secure refrigerator before being sent out for testing.
{¶9} Criminalist L.P. is an expert in the field of toxicology, and testified regarding
the OSHP crime lab’s procedures for the intake and management of blood samples.
When a sealed sample arrives at the lab, evidence intake technicians date and timestamp
when it is received, which starts the lab’s chain of custody. The sample is thereafter
logged into the Laboratory Information Management System (“LIMS”) and placed in the
evidence-receiving refrigerator. An analyst then retrieves the sample and performs testing
on it. Once finished, the analyst places the sample in a “badge access” walk-in freezer
for storage.
{¶10} The United States Postal Service (“USPS”) delivered the appellant’s blood
samples to the crime lab. L.P. identified the two tubes that contained the appellant’s blood,
and further identified all of the information on their respective labels which included: (1) a
unique identifier number (23-005351); (2) the subject’s name (the appellant); (3) the
collector’s name (M.R.); (4) the date and time the sample was collected (June 21, 2023,
at 12:17 a.m.); (5) L.P.’s initials; and, (6) the number 1 or 2, for each tube respectively.
There was no evidence that the labels had been tampered with in any way.
{¶11} L.P. testified that she performed analytical testing on Tube 1 of the
appellant’s blood between July 7, 2023, and July 11, 2023, then interpreted the data and
prepared a report. According to L.P., four days is a common and normal timeframe for
such testing, which usually takes a week, depending on any “issues” that may arise. L.P.
was tasked with testing the appellant’s blood for alcohol content, so she performed a
“headspace gas chromatography with flame ionization detection” test, a scientific process that she explained to the trial court in great detail. She followed all the procedures and
requirements for testing the blood sample, and testified that she was unaware of any
“deviations.” According to L.P., the testing was “pretty standard,” and no problems or
issues occurred. L.P. found that the sample of the appellant’s blood contained 0.173
grams by weight of alcohol per 100 mL of whole blood.
{¶12} Criminalist L.M., an expert in the fields of toxicology and toxicological
testing, also provided testimony. She testified regarding the chain of custody, which is
generated when samples are delivered to the lab, and any “movement” of the sample is
then tracked accordingly through the LIMS system. She testified that only the criminalists
in toxicology are granted “badge access” to the lab refrigerator where the samples are
stored, and they must use a dedicated PIN number known only to them to access the lab.
All samples are stored for a period of two years from the date of receipt at the lab. The
rules and procedures regarding the transport and the “checking in” and “checking out” of
the samples in connection with the appellant’s case were followed.
{¶13} L.M. testified that she tested the appellant’s blood sample for the presence
of controlled substances, and then generated a report. The sample she tested was
received from the USPS on June 30, 2023, at 2:11 p.m., as a “sealed kit” with “two sealed
blood tubes.” L.M. observed nothing concerning about the blood samples themselves
when she performed the tests. She tested the blood from July 24, 2023, through August
7, 2023, which she testified is a “normal” timeframe for this type of testing. She first
performed a screening test, utilizing “liquid chromatography-tandem mass spectrometry”
(“LC-MS”), which she described for the trial court in great detail. L.M. testified that she
ran a couple of confirmations, then utilized “gas chromatography/mass spectrometry,” specifically for THC testing. She initially used Tube 1 for the screening and two
confirmations, then had to also use Tube 2 because more blood was required to test
specifically for the presence of THC. L.M. found that the appellant’s blood (specimen
number 23-005351) contained all of the following:
• 11-nor-9-carboxy-tetrahydrocannabinol (otherwise known as THC
metabolite) at a level of 111.32 nanograms per milliliter;
• Fentanyl at 81.12 nanograms per milliliter;
• Midazolam at 49.79 nanograms per milliliter; and, Lorazepam at
675.34 nanograms per milliliter.
{¶14} On November 1, 2023, after the suppression hearing, the appellant filed a
second supplement to his motion to suppress containing much more specific arguments
regarding the admissibility of the appellant’s blood test results. The trial court filed a
judgment entry on November 27, 2023, in which it, inter alia, denied the appellant’s motion
to suppress the results of the blood test.
{¶15} On April 1, 2024, the appellant withdrew his former pleas of not guilty and
pleaded no contest to the charges as set forth in the indictment. The trial court accepted
his pleas and found him guilty of all charges. The court merged Counts 2 and 3 into Count
1 for purposes of sentencing, sentenced the appellant on Count 1 to a minimum
mandatory prison term of 7 years and a maximum mandatory prison term of 10 ½ years,
and suspended his driver’s license for his lifetime. The court sentenced the appellant to
180 days in jail on Count 4, suspended his driver’s license for one year, assessed six
points on his license, and fined him $375.00. Finally, the court sentenced the appellant to 180 days in jail on Count 5. The court ordered the sentences to be served concurrently
with one another. On April 15, 2024, the court filed a corresponding Judgment Entry.
{¶16} The appellant filed a timely appeal in which he sets forth the following sole
assignment of error:
{¶17} “I. THE TRIAL COURT ERRED IN OVERRULING APPELLANT’S MOTION
TO SUPPRESS THE RESULTS OF HIS BLOOD DRAW WHEN THE STATE FAILED TO
DEMONSTRATE THE DRAW WAS IN SUBSTANTIAL COMPLIANCE WITH THE
REGULATIONS SET FORTH IN OHIO ADMINISTRATIVE CODE SECTION 3701-5305.”
STANDARD OF REVIEW
{¶18} Appellate review of a motion to suppress presents a mixed question of law
and fact. State v. Burnside, 2003-Ohio-5372, ¶ 8. When ruling on a motion to suppress,
the trial court assumes the role of trier of fact and is in the best position to resolve
questions of fact and to evaluate witness credibility. See, State v. Dunlap, 73 Ohio St.3d
308, 314 (1995); and, State v. Fanning, 1 Ohio St.3d 19, 20 (1982). Accordingly, a
reviewing court must defer to the trial court's factual findings if competent, credible
evidence exists to support those findings. See Burnside, supra; Dunlap, supra; State v.
Long, 127 Ohio App.3d 328, 332 (4th Dist.1998); and, State v. Medcalf, 111 Ohio App.3d
142 (4th Dist.1996). However, once this Court has accepted those facts as true, it must
independently determine as a matter of law whether the trial court met the applicable legal
standard. See Burnside, supra, citing State v. McNamara, 124 Ohio App.3d 706, 707 (4th
Dist.1997); See, generally, United States v. Arvizu, 534 U.S. 266 (2002); and, Ornelas v.
United States, 517 U.S. 690 (1996). That is, the application of the law to the trial court's
findings of fact is subject to a de novo standard of review Ornelas, supra. Moreover, due weight should be given “to inferences drawn from those facts by resident judges and local
law enforcement officers.” Ornelas, supra at 698.
ANALYSIS
{¶19} R.C. 4511.19 provides, inter alia, for blood draws in connection with
individuals who are alleged to have been driving while under the influence of alcohol or
drugs, and states in pertinent part:
In any criminal prosecution or juvenile court proceeding for a violation
of division (A) or (B) of this section or for an equivalent offense that is
vehicle-related, the court may admit evidence on the concentration of
alcohol, drugs of abuse, controlled substances, metabolites of a controlled
substance, or a combination of them in the defendant's whole blood, blood
serum or plasma, breath, urine, or other bodily substance at the time of the
alleged violation as shown by chemical analysis of the substance withdrawn
within three hours of the time of the alleged violation. The three-hour time
limit specified in this division regarding the admission of evidence does not
extend or affect the two-hour time limit specified in division (A) of section
4511.192 of the Revised Code as the maximum period of time during which
a person may consent to a chemical test or tests as described in that
section. The court may admit evidence on the concentration of alcohol,
drugs of abuse, or a combination of them as described in this division when
a person submits to a blood, breath, urine, or other bodily substance test at
the request of a law enforcement officer under section 4511.191 of the
Revised Code or a blood or urine sample is obtained pursuant to a search warrant. Only a physician, a registered nurse, an emergency medical
technician-intermediate, an emergency medical technician-paramedic, or a
qualified technician, chemist, or phlebotomist shall withdraw a blood sample
for the purpose of determining the alcohol, drug, controlled substance,
metabolite of a controlled substance, or combination content of the whole
blood, blood serum, or blood plasma. This limitation does not apply to the
taking of breath or urine specimens. A person authorized to withdraw blood
under this division may refuse to withdraw blood under this division, if in that
person's opinion, the physical welfare of the person would be endangered
by the withdrawing of blood.
The bodily substance withdrawn under division (D)(1)(b) of this
section shall be analyzed in accordance with methods approved by the
director of health by an individual possessing a valid permit issued by the
director pursuant to section 3701.143 of the Revised Code.
R.C. 4511.19 (D)(1)(b). The Ohio Supreme Court has spoken on this Revised Code
section, stating:
The legislature in Ohio has directed that in a criminal prosecution for
a violation of R.C. 4511.19(A) or (B), a bodily substance shall be analyzed
in accordance with methods approved by the director of health, R.C.
4511.19(D)(1)(b), and that the director of health “shall determine, or cause
to be determined, techniques or methods for chemically analyzing a
person's whole blood,” R.C. 3701.143. Pursuant to these directives, the
director of health promulgated Ohio Adm. Code 3701–53–05. State v. Baker, 2016-Ohio-451, ¶ 16.
{¶20} Ohio Administrative Code 3701–53–06 (formerly 3701-53-05) sets forth the
standards for collection a legal blood sample, and states in pertinent part:
(A) All samples are to 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 will be used on the skin. No alcohols will be used as a
skin antiseptic.
(C) Blood is to be drawn with a sterile dry needle into a vacuum container
with an anticoagulant according to the laboratory protocol as written in the
laboratory procedure manual based on the type of specimen being tested.
Anticoagulant coated vacuum tubes include standard purple, blue, green,
pink, tan, gray, yellow and white topped tubes.
* * *
(E) The collection of an oral fluid specimen is to be done according to
the sample collection device instructions.
(F) Blood, urine, and oral fluid containers are to 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 subject;
(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. (G) While not in transit or under examination, all blood, urine and oral
fluid specimens will be refrigerated.
{¶21} The issue of compliance with these requirements was discussed by this
Court in State v. Bordeau, 2023-Ohio-2040 (5th Dist.):
The Ohio Supreme Court has held rigid compliance with ODH
regulations is not required, as such compliance is not always humanly or
realistically possible. State v. Plummer, 22 Ohio St.3d 292, 294, 490 N.E.2d
902 (1986). Rather, if the State shows substantial compliance with the
regulations, absent prejudice to the defendant, alcohol and drug tests
results are admissible. Id.
However, the burden to establish substantial compliance only
extends to the level with which the defendant takes issue with the legality
of the test. State v. Johnson, 137 Ohio App.3d 847, 851, 739 N.E.2d 1249
(2000); State v. Crothers, 12th Dist. Clinton No. CA2003-08-020, 2004-
Ohio-2299, 2004 WL 1040697, ¶ 10. When the defendant's motion to
suppress merely raises a generalized claim of inadmissibility and identifies
the section(s) of the Administrative Code implicated in the claim, the burden
on the State is slight. State v. Bissaillon, 2nd Dist. Greene No. 06-CA-130,
2007-Ohio 2349, 2007 WL 1429626, ¶ 12; State v. Williams, Montgomery
App. No. 16554, unreported, 1998 WL 214595 (Apr. 24, 1998); State v.
Embry, 12th Dist. Warren No. CA2003-11-110, 2004-Ohio-6324, 2004 WL
2698417, ¶ 24 (simply reiterating Administrative Code provisions creates a
burden on the State to respond only in general to the issues raised). The State is only required to present general testimony there was substantial
compliance with the requirements of the regulations; specific evidence is
not required unless the defendant raises a specific issue in the motion to
suppress. Id.; Bissaillon, supra, 2007-Ohio-2349 at ¶ 12; State v. Crotty,
12th Dist. Warren No. CA2004-05-051, 2005-Ohio 2923, 2005 WL
1385223, at ¶ 19.
{¶22} In the case sub judice, the appellant’s September 14, 2023, Motion to
Suppress set forth only a generalized argument, devoid of specificity, regarding the
appellee’s purported non-compliance regarding the collection of his blood samples. His
motion argued that the appellee could not “prove that the [blood] sample was obtained in
compliance with R.C. 4511.19(D) or that involved parties collected, handled, transported,
or analyzed the same in compliance with the ODH rules regarding chemical tests as
prescribed by the OAC.” The appellee addressed these arguments at the October 12,
2023, suppression hearing through the presentation of testimony from Sergeant McCord
of the Alliance Police Department; Nurse M.R. of Aultman Hospital in Canton; Criminalist
L.P. of the Ohio State Highway Patrol (“OSHP”) Crime Lab; and, Criminalist L.M. of the
OSHP Crime Lab. It was only during closing arguments, and after the close of evidence,
that the appellant proffered more specific arguments, and then filed a second supplement
to his motion to suppress setting forth more specific arguments against the admissibility
of the blood sample results.
{¶23} As set forth in Bordeau, when a defendant’s motion to suppress makes
merely general assertions of non-compliance with the applicable statute and regulations,
the prosecution is only required to present general testimony that there was substantial compliance with the requirements of the regulations; specific evidence is not required
unless the defendant raises a specific issue in his motion to suppress. When a defendant
seeks the benefit of a highly specific regulation, he must make a specific argument in his
motion; he is not entitled to a “second bite at the apple” after the prosecution has
concluded its arguments and rested its case at the motion to suppress hearing.
{¶24} In this case, the appellant failed to raise specific issues in his September
14, 2023, Motion to Suppress, proffering specific arguments only after the close of
evidence - during closing arguments at the conclusion of the suppression hearing, and in
a second supplemental motion filed after the hearing. The appellant is required to be
specific in his arguments regarding any alleged failure on the part of the State to comply
with the applicable statute and regulations. Because the appellant failed to do so, the
appellee was required only to show substantial compliance with the applicable statute
and regulations, which it did via the testimony of Sergeant McCord, Nurse M.R., and
Criminalists L.P. and L.M. Furthermore, no evidence has been presented that the
appellant suffered prejudice as a result of the manner in which the blood was drawn in
this case.
{¶25} The burden to establish substantial compliance with the applicable statute
and regulations extends only to the level with which the appellant took issue with the
legality of the blood draw. The appellant’s motion to suppress merely raised a generalized
claim of inadmissibility and identified sections of the Ohio Administrative Code purportedly
implicated; it did not set forth a factual basis for any of the claimed violations. Thus, the
appellee’s burden was slight. The evidence presented by the appellee established that it
substantially complied with the requirements set forth in R.C. 4511.19(D)(1)(b) and Ohio Administrative Code 3701–53–06. Furthermore, rigid compliance with the applicable
regulations is not required, as such compliance is not always humanly or realistically
possible, particularly in this case, where the appellant was uncooperative upon arrival at
the hospital and had to be physically restrained in order to be docile enough to receive
treatment for his injuries. The trial court did not err in denying the appellant’s motion to
suppress the results of his blood draw.
CONCLUSION
{¶26} Based upon the foregoing, we find the appellant’s assignment of error to be
without merit, and it is therefore overruled. The judgment of the Stark County Court of
Common Pleas is hereby affirmed.
By: Baldwin, P.J.
King, J. concur
Hoffman, J. dissents. Hoffman, J., dissenting
{¶27} I respectfully dissent form the majority opinion.
{¶28} Crim.R. 47 requires all written motions to state with particularity the grounds
upon which they are made. The question presented herein becomes how much
particularity is available and how much is needed to put the State on notice of the
underlying basis for the motion to suppress.
{¶29} It would seem there are two generalized ways to support a motion to
suppress. The first would be a factual attack. Those facts would usually be based on the
defendant’s personal knowledge or other facts readily available to the defendant, e.g.
police reports and video cam data.
{¶30} For example, a defendant’s personal knowledge of the events surrounding
a contested traffic stop can be challenged with specificity. Likewise, a defendant’s claim
contesting an alleged consent to search lies within the defendant’s personal knowledge
and is fully capable of being asserted with particularity.
{¶31} The second generalized way to support a motion to suppress is an attack
based on the law. For example, a challenge to the sufficiency of the affidavit used to
establish probable cause for the issuance of a search warrant, such as whether the length
of detention of a stopped motorist to conduct a dog sniff is reasonable, or the lack of
Miranda warnings during a custodial interrogation, are specific legal challenges which can
be articulated with specificity.
{¶32} I suggest the present case presents somewhat of a hybrid of those two
generalized ways to support a motion to suppress. Appellant’s legal basis for suppression based on non-compliance with ODH regulations is necessarily premised upon factual
information unknown to him prior to the hearing.
{¶33} The Civil Rules provide a litigant discovery tools not available to a criminal
defendant. As demonstrated here, the defendant had no way of knowing the facts
necessary to particularize how the State might have failed to comply with the
administrative rules governing a blood test. Only testimony presented at a suppression
hearing, whether revealed on direct examination or discovered through cross-
examination, would give the defendant sufficient factual details to allow the defendant to
assert a more “particularized” ground(s) to challenge the results of his blood test. While
I concede the defendant’s assertion “… the State cannot prove the [blood] sample was
obtained in compliance with R.C. 4511.19(D)” is generalized, but given the unavailability
of the particular facts related to the blood draw at the time of filing his Motion to Suppress,
I find Appellant “substantially complied” [to borrow the phrase] with the requirement of
Crim.R. 47.
{¶34} Significantly, the State apparently was on sufficient notice of the grounds of
the motion, as it solicited evidence on direct examination of its own witnesses’ testimony
addressing the requirements for blood tests set forth in the O.A.C.
{¶35} Regardless of whether the State was required to present only general
testimony of substantial compliance or the higher burden of strict compliance, I find the
State failed to do so. As noted by the majority, the Ohio Supreme Court has held rigid
compliance with ODH regulations is not required, as such compliance is not always
humanly or realistically possible. Such is not the case here. {¶36} The requirement I find unsatisfied is OAC 3701-53-06(B): “When collecting
a blood sample, an aqueous solution of a non-volatile antiseptic will be used on the skin.
No alcohol will be used as a skin antiseptic.”
{¶37} The majority notes Nurse M.R. could not say whether any antiseptic was
applied to [A]ppellant’s skin prior to drawing his blood because the IV [from which she
drew Appellant’s blood] was already placed prior to the [A]ppellant’s arrival at Aultman
Hospital. Obviously, Nurse R.A. had no way of knowing that at the time. This is not the
same situation relied upon by the State that even if a nurse does not specifically testify
about applying an aqueous solution of a non-violative, non-alcoholic antiseptic, her
testimony she used at “sealed kit” for OVI blood draws reasonably supported an inference
of compliance. See Appellee’s brief at pg. 16. Nurse M.R.’s testimony in this matter
explicitly contradicts such inference.
{¶38} Let me hasten to add, at this juncture, I place no fault nor blame on Nurse
M.R. Her motives for using the already inserted IV were both reasonable and
humanitarian. In hindsight, Officer McCord could have explained the significance of
compliance with the ODH blood draw instructions and insisted the blood not be drawn
using the IV site. Nonetheless, strict compliance with the ODH regulation was neither
humanly nor realistically impossible.
{¶39} I conclude the evidence presented showed the ODH regulation, noted
above, was neither strictly nor substantially complied with. I would sustain Appellant’s
assignment of error.