[Cite as State v. Mullins, 2013-Ohio-2688.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

ROSS COUNTY 

STATE OF OHIO, : Case No. 12CA3350 

 : 

Plaintiff-Appellee, : 

: DECISION AND 

v. : JUDGMENT ENTRY

 : 

LAURA K. MULLINS, : 

 : RELEASED 6/25/13 

 

 Defendant-Appellant. : 

______________________________________________________________________ 

APPEARANCES: 

Timothy Young, Ohio Public Defender, and Jessica S. McDonald, Assistant Ohio Public 

Defender, Chillicothe, Ohio, for appellant. 

Sherri K. Rutherford, City of Chillicothe Law Director, and Michele Rout, City of 

Chillicothe Assistant Law Director, Chillicothe, Ohio, for appellee. 

______________________________________________________________________ 

Harsha, J. 

{¶1} Following a no contest plea, Laura Mullins appeals her conviction for 

operating a vehicle with a prohibited concentration of alcohol in her urine. Mullins 

contends the trial court erred when it denied her motion to suppress the results of her 

urine test because the State failed to prove it substantially complied with a regulation 

that requires urine samples be refrigerated while not in transit or under examination. 

The parties stipulated that after a trooper took the urine sample, he gave it to another 

trooper who did not refrigerate it and did not place it in the mail for testing until nearly 12 

hours later. Because this is not a de minimis or minor procedural deviation, we agree 

the State failed to prove substantial compliance. Therefore, the trial court erred when it 

denied the motion to suppress. We reverse and remand for further proceedings. 

I. Facts
Ross App. No. 12CA3350 2 

{¶2} Mullins was charged with violating R.C. 4511.19(A)(1)(a), R.C. 

4511.19(A)(1)(e), and R.C. 4511.202. She filed a motion to suppress the results of her 

urine test, arguing the State failed to keep her urine specimen refrigerated when it was 

not in transit or under examination. The parties made the following stipulations for 

purposes of the motion: 

1. Defendant became the subject of a vehicle crash investigation on 

March 24, 2012. 

2. Upon being placed under arrest, by Trooper Brown of the Ohio State 

Highway Patrol, the Defendant agreed to submit to a urine analysis. 

3. The Defendant’s urine sample was collected and witnessed by Trooper 

Hutton of the Ohio State Highway Patrol. 

4. The Defendant’s sample was collected at 18:44 (6:44 p.m.) on March 

24, 2012 and according to the property control form, the sample was 

given to Trooper Brown by Trooper Hutton at that same time. 

5. The Defendant’s urine sample was kept in Trooper Brown’s locked 

patrol cruiser for the remainder of his shift. 

6. Trooper Brown got off his shift at 6:00 a.m., on March 25, 2012. 

7. According to the property control form completed and submitted by 

Trooper Brown, the Defendant’s urine sample was not placed in the 

mail (transit) until 6:30 a.m. on March 25, 2012. 

8. At no time between the collection at 6:44 p.m. on March 24, 2012 and 

the placing in the mail at 6:30 a.m. on March 25, 2012, was the 

Defendant’s urine sample refrigerated. 

{¶3} At a hearing on the motion, the court stated: 

Alright, well I have reviewed the law in this area and it does appear to me, 

at least, that this is a close case, frankly. There are some cases that say 

three, four, maybe five hours is ok. There’s another case out there that 

says seventeen hours is not ok in terms of getting the urine sample out of 

the patrol’s hands and into the mail, I guess. The thing that just seems to 

distinguish those cases is that if the trooper does it while he’s on his shift 

or as soon as he’s leaving his particular shift that he’s on when he obtains 

the sample, that seems to be ok. And if he doesn’t do it at the end of that 
Ross App. No. 12CA3350 3 

shift but comes back and does it another shift that it’s not ok. And the 

purposes [sic] of trying to make a bright line, this Court’s gonna rule that if 

the trooper takes the sample and places it in the mail during his shift or 

immediately at the conclusion of his shift, then that’s gonna be ok. If he 

waits beyond the end of his shift to another shift or whatever, then it 

wouldn’t be ok. But even though it was twelve hours later in this case, the 

trooper apparently did deposit the sample in the mail as he was leaving 

his shift. The Court’s gonna rule that that’s ok and the motion to suppress 

is gonna be overruled for that reason. * * * 

{¶4} Later, the court issued an entry stating the motion to suppress was 

overruled “for reasons stated on the record.” Subsequently, Mullins pleaded no contest 

to a violation of R.C. 4511.19(A)(1)(e), and the court found her guilty and sentenced 

her. The court dismissed the other charges. This appeal followed. 

II. Assignment of Error 

{¶5} Mullins assigns the following error for our review: 

I. THE COURT BELOW ERRED WHEN IT OVERRULED THE 

DEFENDANT-APPELLANT’S MOTION TO SUPPRESS BECAUSE 

THE STATE FAILED TO SUBSTANTIALLY COMPLY WITH OAC 

3701-53-05(F), WHEN IT FAILED TO REFRIGERATE THE URINE 

SPECIMEN COLLECTED FROM THE DEFENDANT, FOR 12 

HOURS AFTER ITS COLLECTION. 

III. Motion to Suppress 

{¶6} In the sole assignment of error, Mullins contends the court erred when it 

denied her motion to suppress. Our review of a trial court’s decision on a motion to 

suppress presents a mixed question of law and fact. State v. Burnside, 100 Ohio St.3d 

152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. When considering a motion to suppress, the 

trial court acts as trier of fact and is in the best position to resolve factual questions and 

evaluate witness credibility. Id. Accordingly, we must accept the trial court’s findings of 

fact if they are supported by competent, credible evidence. Id. Here, the parties 

stipulated to the facts for purposes of the motion to suppress. Thus, accepting those 
Ross App. No. 12CA3350 4 

facts as true, we must “independently determine, without deference to the conclusion of 

the trial court, whether the facts satisfy the applicable legal standard.” Id. 

{¶7} R.C. 4511.19(D)(1)(b) provides for the admission of evidence on the 

concentration of alcohol in a defendant’s urine in a prosecution under R.C. 4511.19(A). 

The State must have the urine analyzed in accordance with methods approved by the 

director of health. R.C. 4511.19(D)(1)(b). One of these methods appears in Ohio 

Adm.Code 3701-53-05(F), which provides: “While not in transit or under examination, 

all blood and urine specimens shall be refrigerated.” 

{¶8} A burden-shifting procedure governs the admissibility of alcohol-test 

results. Burnside at ¶ 24. “The defendant must first challenge the validity of the alcohol 

test by way of a pretrial motion to suppress * * *.” Id. Then, “the state has the burden to 

show that the test was administered in substantial compliance with the regulations 

prescribed by the Director of Health.” Id. If the state satisfies this burden, thereby 

creating a presumption of admissibility, the burden “then shifts to the defendant to rebut 

that presumption by demonstrating that he was prejudiced by anything less than strict 

compliance.” Id. “Hence, evidence of prejudice is relevant only after the state 

demonstrates substantial compliance with the applicable regulation.” Id.

{¶9} Here, Mullins challenged the validity of the urine test results in a motion to 

suppress. Therefore, the State had the burden to show the test was administered in 

substantial compliance with the methods approved by the director of health. Mullins 

argues the State failed to show substantial compliance with Ohio Adm.Code 3701-53-

05(F) because her sample was unrefrigerated for almost 12 hours when it was not in 

transit or under examination. 
Ross App. No. 12CA3350 5 

{¶10} “To avoid usurping a function that the General Assembly has assigned to 

the Director of Health, * * * we must limit the substantial-compliance standard * * * to 

excusing only errors that are clearly de minimis.” Burnside, 100 Ohio St.3d 152, 2003-

Ohio-5372, 797 N.E.2d 71, at ¶ 34. Thus errors that are excusable under the 

substantial-compliance standard must be “minor procedural deviations.” Id. 

{¶11} Mullins argues that in State v. Docterman, 4th Dist. No. 85X3, 1986 WL 

3405 (Mar. 19, 1986), we held that “because the arresting officer failed to refrigerate a 

urine sample, while not in transit, pursuant to the regulations, until after his shift, the test 

results were inadmissible.” (Appellant’s Br. 3). Even if we agreed with this statement, 

as the State points out, we later vacated that opinion and judgment entry. State v. 

Docterman, 4th Dist. No. 85X3, 1986 WL 7880 (July 7, 1986). Thus, Mullins’ reliance 

on that opinion is misplaced. 

{¶12} In State v. Plummer, 22 Ohio St.3d 292, 490 N.E.2d 902 (1986), the 

Supreme Court of Ohio considered the former version of Ohio Adm.Code 3701-53-

05(F), which stated that “[w]hile not in transit to a laboratory or under examination all 

urine * * * specimens shall be refrigerated at a temperature of forty-two degrees 

Fahrenheit or below.” The Court found that the sample at issue was not refrigerated for 

one hour and 25 minutes between the time of collection and mailing, but that “[d]uring 

this interval, packaging, labeling and delivery to mail deposit were required.” Plummer

at 294. The Court also found the sample was “at worst” not refrigerated for three to four 

hours between the time the laboratory received and tested it. Id. But the Court agreed 

“with the court of appeals’ reasoning that the storage temperature requirement of Ohio 

Adm.Code 3701-53-05 contemplates cases involving longer periods of specimen 
Ross App. No. 12CA3350 6 

retention, rather than a relatively slight delay between receipt and testing as in this 

case.” Id. at 295. The Court found substantial compliance with former Ohio Adm.Code 

3701-53-05(F). We note the current version of the regulation does not contain the 

temperature requirement the Court partly relied on to reach its conclusion. 

{¶13} In contrast, in State v. DeJohn, 5th Dist. No. 06-CA-16, 2007-Ohio-163, 

which Mullins cites, a trooper took a urine sample at 10:18 p.m. He went off duty shortly 

after that and did not mail the sample until 3:30 p.m. the next day. The Fifth District 

found that this over 17 hour period when the sample was not in transit or under 

examination was “not a relatively slight delay or minor procedural deviation.” DeJohn at 

¶ 18. Therefore, the court found the State failed to prove substantial compliance with 

Ohio Adm.Code 3701-53-05(F). 

{¶14} The State argues that DeJohn is distinguishable from this case because 

the trooper in DeJohn waited until his next shift to place the sample into the mail. The 

State argues that other courts “have accepted the determination that the mailing of the 

sample at the end of the officer’s shift is acceptable.” (Appellee’s Br. 1). The trial court 

was persuaded by this argument and created a bright line rule that “if the trooper takes 

the sample and places it in the mail during his shift or immediately at the conclusion of 

his shift, then that’s gonna be ok.” 

{¶15} The trooper who collected the sample in this case was not the same 

trooper who mailed the sample. Moreover, we decline to create a bright line rule that 

the state substantially complies with Ohio Adm.Code 3701-53-05(F) if a urine sample is 

unrefrigerated between the time it is collected and placed into transit so long as the 

trooper who collects (or takes possession of) the sample mails it to a laboratory during 
Ross App. No. 12CA3350 7 

or immediately after his shift, regardless of how long that is. The mere fact that a 

trooper collects or takes possession of a sample and mails it during a single shift does 

not make a violation of Ohio Adm.Code 3701-53-05(F) “clearly de minimis” or a “minor 

procedural deviation.” Shift lengths can vary, and so can the periods of retention within 

a shift.

{¶16} Although it may not be convenient or possible for a trooper to place a 

blood or urine sample in transit in a timely fashion during his shift, the current version of 

Ohio Adm.Code 3701-53-05(F) is less burdensome than its predecessor in terms of 

storage requirements. The State no longer needs to worry about law enforcement 

storing samples at a specific temperature. Because the code simply requires 

refrigeration of samples while not in transit or under examination, troopers could 

arguably comply with Ohio Adm.Code 3701-53-05(F) by placing samples in a small 

cooler with frozen gel packs in the trunk of their vehicles. 

{¶17} We find that the approximate 12 hour period in which Mullins’ urine 

sample was unrefrigerated while not in transit or under examination, like the 17 hour 

period in DeJohn, is not “clearly de minimis” or simply a “minor procedural deviation” 

from Ohio Adm.Code 3701-53-05(F). This period of time is more than double the 

amount of time the Plummer Court characterized as a “relatively slight delay.” It is also 

double or more than double time periods approved by other Ohio courts. See State v. 

Price, 11th Dist. No. 2007-G-2785, 2008-Ohio-1134, ¶ 26 (finding retention of a blood 

sample in an unrefrigerated state for six hours before mailing not a violation); State v. 

Schell, 5th Dist. CA-7884, 1990 WL 83992, *2 (June 18, 1990) (finding substantial 

compliance when blood sample went unrefrigerated for five hours). 
Ross App. No. 12CA3350 8 

{¶18} Accordingly, we sustain the sole assignment of error, reverse the trial 

court’s judgment, and remand for further proceedings, including the issuance of an entry 

granting Mullins’ motion to suppress. 

JUDGMENT REVERSED AND 

CAUSE REMANDED.
Ross App. No. 12CA3350 9 

JUDGMENT ENTRY

It is ordered that the JUDGMENT IS REVERSED and that the CAUSE IS 

REMANDED. Appellee shall pay the costs. 

The Court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this Court directing the 

Chillicothe Municipal Court to carry this judgment into execution. 

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS 

BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is 

temporarily continued for a period not to exceed sixty days upon the bail previously 

posted. The purpose of a continued stay is to allow Appellant to file with the Supreme 

Court of Ohio an application for a stay during the pendency of proceedings in that court. 

If a stay is continued by this entry, it will terminate at the earlier of the expiration of the 

sixty day period, or the failure of the Appellant to file a notice of appeal with the 

Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of 

the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court 

of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as 

of the date of such dismissal. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

Hoover, J.: Concurs in Judgment and Opinion. 

McFarland, P.J.: Dissents. 

For the Court 

BY: ____________________________ 

 William H. Harsha, Judge 

NOTICE TO COUNSEL 

Pursuant to Local Rule No. 14, this document constitutes a final judgment 

entry and the time period for further appeal commences from the date of filing 

with the clerk.