The defense attorney for a Jerome Schottenstein Center construction worker whose crane toppled over and killed a passing driver is arguing blood-alcohol evidence should be thrown out of his upcoming trial.During an Oct. 1 hearing, Mark Burcher’s attorney requested that Franklin County Common Pleas Court Judge David Fais consider suppressing blood-alcohol test results.Burcher, 39, of Columbus, operated the crane that killed Marvin Kuhn, 45, of Westerville, last summer. Kuhn was driving on Lane Avenue when the crane crushed his car. Burcher was charged with involuntary manslaughter and two counts of driving under the influence.George Luther, Burcher’s attorney, said he entered his client’s not guilty plea in fall 1997. His blood-alcohol content, measured through urinalysis by the Columbus Division of Police, was 0.17 after the accident occurred. The Ohio State University Medical Center also conducted a blood test that indicated Burcher’s alcohol level was over 0.10 percent. Under Ohio law a person is considered drunk if his blood alcohol level is 0.10 or greater.According to Luther, the Ohio Department of Health requires certain procedures to be followed when testing a person’s blood-alcohol level. The department requires the tests to be conducted less than two hours after the incident. Burcher agreed to take a urinalysis administered by police almost four hours after the accident. “I’m arguing that the test results aren’t accurate or reliable,” Luther said.Although Burcher agreed to take the test, Luther said his client didn’t realize he had the right to decline.”(The police) should have approached the judge to get a search warrant to get any bodily substances,” he said.Burcher was never officially arrested, so the police had no right to conduct the test, he said. Burcher was charged by a grand jury indictment and summoned to appear in court.”The police officer testified that he had no evidence from any witness that Mark appeared intoxicated,” Luther said. He said the person who conducted the test for the OSU Medical Center wasn’t permitted to perform the test.”They didn’t have the license issued by the department of health to do this test,” he said. “They were able to test for hospital purposes but not for trial.”Randy Hertzer, a spokesman for the Ohio Department of Health, said the Medical Center may have authorization to conduct the tests.”The Ohio State Medical Center is not licensed by the department of health as a laboratory to do DUI enforcement testing,” he said. “However, the university reference lab is licensed by us,” Hertzer said.A spokesman for the OSU Medical Center declined to discuss which lab conducted the tests, citing patient confidentiality.Assistant Prosecutors Dan Cable and Jeff Allen said they will pursue the case very seriously.”Our position is we’re going to proceed with the trial,” Cable said. “We feel that the tests that were taken, both the blood and the urine, will be admissible in trial.”Burcher was charged with involuntary manslaughter and two counts of driving under the influence: operating a motor vehicle while impaired and operating a motor vehicle while impaired per se. The first charge will determine if the defendant operated the machinery safely. The latter charge will determine if Burcher was impaired by alcohol.Cable said the judge will use different standards for each charge as to the admissibility of the alcohol results. If Fais admits the test results for one charge, he might reject the results for another charge.”The tests are the essence of this case,” Luther said. Luther said the judge could render a decision within the next several weeks, but Cable said it will probably take longer. The judge can decide anytime before the case goes to trial on Feb. 16, 1999.