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.

To Blow or Not to Blow – Beat your Ohio DUI Charge

First off, there is a distinction that needs to be drawn between a test that they have you blow into by the roadside (a Portable Breath Test or PBT) and a test back at the station. You are under no legal obligation and there is no penalty for refusing to blow at the roadside. It is only once you are back at the station that things become more complicated.

It used to be easy for attorneys advising clients in drunk driving cases when it came to this question. In the old days, the answer was to never blow. The reason for that was that it is easy to convict a person of driving with a concentration of alcohol in their blood, breath or urine above a certain level if you have a test result from a measuring device that you can put before the jury. Those folks just weren’t going to get any deals.

It is a lot harder for a prosecutor to convince a jury beyond a reasonable doubt that you were driving drunk if you did not take the test and the video shows that you weren’t slurring your words or acting the fool. Those folks were getting a lot of deals.
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Refusal to take a BAC test as evidence of guilt

While it may be a good idea to refuse to take the test back at the station if you think that you are going to flunk it, or if you think you might test over the .170 standard which will necessitate a mandatory three days in jail, the prosecutor is going to introduce your refusal to test into evidence against you in a DUI case. Many defendants in this situation have argued that they have a Fifth Amendment right not to have such a refusal used against them. But these arguments have fallen on deaf ears in Ohio.

The refusal to submit to a breath test is relevant, admissible, and may be used against a defendant at trial. South Dakota v. Neville (1983), 4559 U.S. 553; Maumee v. Anistik (1994), 69 Ohio St.3d 339. As the Ohio Supreme Court explained in Anistik:
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