Ohio DUI law, DUI Attorneys, DUI Information - Ohio OVI Law

Refuting Police Officer’s Claim that You Refused to Take DUI Test

In some cases, an issue arises as to whether or not a person actually refused to test. This would seem a straightforward question, but not always. Take the following example:

You are driving home from watching a football game at a friends house and a deer jumps out in front of your car. You swerve to avoid it and your car goes off the road. It rolls a few times, and during the process you hit your head on something pretty hard.

The next thing your remember, you are waking up in the hospital a day later. You learn that the police have charged you with drunk driving, and for refusing to consent to alcohol testing. In the police report, it says that the officer came in and asked you to take the test and that you said no. They marked you down as refusing and now your license is under suspension for a full year.

You can remember none of this.

You will want to challenge your suspension at an ALS hearing and argue that when you “refused” the test, you had no capacity to make such a decision given the way that your head injury affected you. It will be a question of fact for the court to decide, but if you can provide medical records as well that show that you had a concussion, your attorney may be able to get the refusal thrown out and your license reinstated.

How an Ohio Lawyer Fights an Ohio DUI Charge

As an attorney licensed to practice law in Ohio, I often assist clients in fighting DUI (now called OVI) charges. My goal is to get as much of the evidence against my client suppressed as I can. If I leave the prosecutor with too little evidence, he may be unsure whether or not he can get a DUI conviction. If that is the case, he will offer a plea bargain that my client can live with.

Here is how I go about defending a DUI case:

The very first thing I analyze when looking at a DUI or OVI case is whether or not the police officer used a proper traffic ticket (an Ohio Uniform Traffic Ticket as required by the Traffic Rules) and whether or not the police wrote the charges properly on the ticket. Very rarely, the police make a mistake here, not often, but often enough to check.

The second thing I analyze when looking at the facts of a DUI case is whether or not there was reasonable suspicion that my client violated any law. Usually the client is pulled over for a minor traffic violation like failing to use a turn signal or speeding. Any violation of the traffic laws, no matter how de minimis, even expired tags, is sufficient to allow the police officer to pull the driver over. But not all police officers have a firm grasp of what the traffic laws entail. Without reasonable suspicion that my client violated the law, the police officer’s act of pulling my client over in the first place is a violation of his Constitutional rights, the remedy for which, is suppression of the evidence.

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Ohio DUI Law: Required 20 Minutes and Mouth Alcohol

The Ohio Director of Health has mandated that the police observe you for 20 minutes before having you take a breath test. The reason for this is what is known as “mouth alcohol”. When you drink, some alcohol may remain in your mouth. This alcohol is pure and undiluted by your blood stream. As you blow into the breath test machine, traces of this undiluted alcohol may get into the machine and be tested along with the breath from your lungs. This will cause the reading to be abnormally high.

The Ohio Director of Health has determined that 20 minutes is sufficient to allow any mouth alcohol to dissipate and not affect the test. So if you were pulled over at 1:00 a.m. and tested at 1:17 a.m., then that test is likely going to be thrown out on your attorney’s motion to suppress since there is no way that you could have been observed for 20 minutes.

Get Your Motion to Preserve Evidence Filed Early

In Ohio, if the police destroy evidence that may be exculpatory (tending to prove the defendant’s innocence), this may be the basis for a dismissal of the case. In Arizona v. Youngblood (1988), 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281, the United States Supreme Court addressed the issue of whether a criminal defendant is denied due process of law by a state’s failure to preserve evidence. The court stated the following:

“The Due Process Clause of the Fourteenth Amendment, as interpreted in [Brady v. Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215], makes the good or bad faith of the State irrelevant when the State fails to disclose to the defendant material exculpatory evidence.”

But what is “material exculpatory evidence” and how do you prove it if the evidence was destroyed before your attorney got to see it?
Read the story »

Ohio DUI Law - Refusal to Test?

In some cases, an issue arises as to whether or not a person actually refused to test. This would seem a straightforward question, but not always. Take the following example:

You are driving home from watching a football game at a friends house and a deer jumps out in front of your car. You swerve to avoid it and your car goes off the road. It rolls a few times, and during the process you hit your head on something pretty hard.

The next thing your remember, you are waking up in the hospital a day later. You learn that the police have charged you with drunk driving, and for refusing to consent to alcohol testing. In the police report, it says that the officer came in and asked you to take the test and that you said no. They marked you down as refusing and now your license is under suspension for a full year.

You can remember none of this.

You will want to challenge your suspension at an ALS hearing and argue that when you “refused” the test, you had no capacity to make such a decision given the way that your head injury affected you. It will be a question of fact for the court to decide, but if you can provide medical records as well that show that you had a concussion, your attorney may be able to get the refusal thrown out and your license reinstated.

Ohio DUI Law - Refusal to Take a Portable Breath Test

Most people are aware that there are penalties for refusing to take the alcohol test back at the station. But the police often pull out a hand held device called a Portable Breath Test (also known as a PBT) and ask that you take it. They will tell you that if it shows that you have not been drinking they will let you go. But they might not even if you pass, suspecting you of being under the influence of some drug other than alcohol.

The question is whether the read out of the PBT at the scene of the stop can come into evidence, either to establish probable cause or to establish guilt at trial. Ohio’s Eight District Court of Appeals has held that:

As the Third Appellate District explained, “the results of the PBT are inadmissible because the Ohio Department of Health no longer recognizes the test. Therefore, the results of the … PBT could not serve as probable cause to arrest the appellant for driving under the influence of alcohol.” State v. Ferguson, Defiance App. No. 4-01-34, 2002 Ohio 1763. See also State v. Anez (2000), 108 Ohio Misc. 2d 18, 738 N.E.2d 491.

So not only is there no penalty for refusing this test, but it isn’t even admissible into evidence. So taking it or not isn’t going to effect you negatively, and it might cause the officer to let you go.