Ohio Admin. Code 4301:1-1-38 - Use of chemical analysis affidavits
(A) In any hearing before the liquor control
commission, a laboratory report from the Ohio department of public safety, the
bureau of criminal identification and investigation, a laboratory operated by
another law enforcement agency, or a laboratory established by or under the
authority of an institution of higher education that has its main campus in
this state and that is accredited by the "Association of American Universities"
or the "North Central Association of Colleges and Secondary Schools," primarily
for the purpose of providing scientific services to law enforcement agencies,
and signed by the persons performing the analysis, stating the substance which
is the basis of the alleged offense has been analyzed and stating findings as
to the contents, identity, and other characteristics of the substance or
alcohol is prima facie evidence of the content, identity, other
characteristics, and chemical analysis of the substance. Attached to the report
shall be a copy of a notarized statement by the signer of the report giving the
name of the signer, stating that the signer is an employee of the laboratory
issuing the report, that performing the analysis is part of the signer's
regular duties, and giving an outline of the signer's education, training, and
experience in performing analysis of material included under this rule. The
signer shall attest that scientifically accepted tests were performed with due
caution, and that the evidence was handled in accordance with established and
accepted procedures while in the custody of the laboratory.
(B) The report shall not be prima facie
evidence of the contents, identity, or other characteristics of the substance
if the permit holder or the permit holder's attorney demands, in writing within
three days from the time of the written report is offered as evidence, the
testimony of the person signing the report, for good cause shown, on the basis
that the report is either irregular on its face or defective in its conclusion.
(C) If the permit holder or the
permit holder's attorney challenge the report pursuant to paragraph (B) of this
rule, the hearing in which the challenged report is intended to be part of the
record, shall be continued to a date set by the liquor control commission in
order that the preparer of the report can be called to testify as to his
findings contained therein.
(D)
Any permit holder or its attorney is entitled upon written request made to the
liquor control commission to have a portion of the substance that is the basis
of the alleged violation preserved for the benefit of independent analysis
performed by a laboratory analyst employed by the permit holder. Such portion
shall be a representative sample of the entire substance that is the basis of
the alleged violation and shall be of sufficient size, in the opinion of the
commission, to permit the analyst to make a thorough scientific analysis
concerning the identity of the substance. If the liquor control commission
determines that such a sample portion cannot be preserved and given to the
analyst, the commission shall so inform the permit holder or its attorney. In
such a circumstance, the permit holder or its attorney, is entitled upon
written request made to the liquor control commission, to have made available
to it the recorded data which formed the basis of the analysis of the substance
that is the basis of the alleged violation.
Notes
Promulgated Under: 119.03
Statutory Authority: 4301.03, 119.03
Rule Amplifies: 4301.04, 4301.03
Prior Effective Dates: 09/01/1981, 04/15/1988, 04/29/1999, 06/04/2004
Promulgated Under: 119.03
Statutory Authority: 4301.03
Rule Amplifies: 4301.03
Prior Effective Dates: 6-4-04
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