Ohio law prohibits operating a vehicle under the influence of alcohol and/or a drug of abuse. To determine the level of alcohol and/or drugs in a driver’s system, law enforcement officers may request that the driver provide samples of bodily substances for alcohol/drug testing. Historically, the bodily substances subjected to testing were blood, urine, and breath. As of April, 2023, Ohio law permits testing of oral fluid.
If a law enforcement officer believes a driver is under the influence, the officer may request the driver to provide a sample of oral fluid. The oral fluid is then tested for alcohol and/or drugs. The results of the oral fluid test may then be used in court as evidence to prove the driver was under the influence. Unlike blood/breath/urine, there are no ‘legal limits’ for alcohol or drugs in oral fluid (e.g., .080% alcohol).
To collect a driver’s oral fluid, a law enforcement officer inserts a collection swab or tube into the mouth of the driver and swipes the surface of the driver’s cheeks and tongue. The tube or swab tip may change color to indicate a sufficient volume of oral fluid has been collected.
To test for alcohol and/or drugs, the officer inserts the swab or tube into an analyzer. The analyzer uses an immunoassay method to test the oral fluid sample. With that method, antibodies in the analyzer make contact with the oral fluid sample and bind with antigens (drugs) in the sample. A signal is produced, such as a color change on the testing strip, indicating the presence of a certain drug. The quantity of the drug may be calculated by the intensity of the antibody’s reaction with the drug. The oral fluid sample may also be sent to a crime lab for additional analysis.
The forensic community generally agrees immunoassay tests, like those used in roadside oral fluid testing, are too unreliable to be used in court. In a report to Congress, the National Highway Traffic Safety Administration (NHTSA) stated, “These tests lack high specificity, are subject to cross-reactivity, and may on occasion produce a false-positive result.” Nevertheless, Ohio permits oral fluid testing for DUI cases (called ‘OVI’ in Ohio).
The drug most commonly at issue in Ohio OVI cases is marijuana. The psychoactive compound in marijuana which may cause driving impairment is THC. When a person smokes marijuana, THC is directly deposited into the person’s oral cavity. If that person then provides a sample of oral fluid, THC is present in the oral fluid sample.
One problem with testing oral fluid for THC is THC in a person’s oral fluid does not impair a person’s driving. THC impairs a person’s driving when THC in a person’s blood reaches receptors in the brain. There is no correlation between the THC level in oral fluid and the THC level in blood.
Another problem with testing oral fluid for THC is there is no correlation between a certain THC level and driving impairment. The National Highway Traffic Safety Administration stated, “THC level in blood (or oral fluid) does not appear to be an accurate and reliable predictor of impairment from THC.”
Despite the questionable accuracy of oral fluid tests, and the problems with THC testing, Ohio legislative and administrative law permits the use of oral fluid tests in OVI cases. If you are charged with OVI and the prosecution intends to introduce results of oral fluid testing, there are strategies to combat this evidence.
The first strategy is to exclude from evidence the oral fluid test results. If the testing is not done in substantial compliance with regulations from the Ohio Department of Health, the test results are suppressed. If the testing is not done in a way which will yield an accurate result, the test results are inadmissible. If the test results are not excluded, the second strategy is to explain to the jury why the test results are unreliable and do not prove you were under the influence.
The attorneys at the Dominy Law Firm have a solid understanding of oral fluid testing. Our attorneys authored an article on the topic for a state-wide publication and have lectured on this topic at seminars. If you are charged with OVI in a case involving oral fluid testing and you would like to discuss representation, you can schedule a free phone consultation by submitting a CONTACT FORM or by calling our office at 614-717-1177.