Ohio Courts have held that by driving a vehicle upon the road, the driver consents to a search to determine his or her alcohol content upon probable cause of the officer. At the time of the stop, a driver may withdraw his implied consent to this search of his blood, breath or urine. But a withdrawal of this consent results in a suspension of the driver’s license to drive. Ohio Revised Code Section 4511.19.1(B). This “implied consent” statute has been reviewed and long been found to be constitutional by the Ohio Supreme Court in the cases of McNulty v. Curry (1975), 42 Ohio St.2d 341; Hoban v. Rice (1971), 25 Ohio St.2d 111; State v. Starnes (1970), 21 Ohio St.2d 38.

Specifically, the implied consent statute was found not to violate the fourth or fourteenth amendments of the U.S. Constitution. Starnes, supra. Thus, it is constitutionally permissible to invoke administrative penalties upon a person for revoking his implied consent.

But the new statute provides for enhanced penalties if a person refuses the test back at the station after having previously had a drunk driving conviction in the past 20 years.

The U.S. Supreme Court has previously held that the use of a chemical test to determine alcohol content of a person is a search under the Fourth Amendment. Schmerber v. California (1966), 384 U.S. 757.

In the case of State v. Hoover, 2007 Ohio App. LEXIS 5070 (October 29, 2007) Union Co. App. No. 14-07-11, the driver who had a previous drunk driving conviction withdrew his implied consent to be tested for DUI.

Ohio’s Third District Court of Appeals held that However, the statute does not force a person to submit to a test citing Maumee v. Anistik (1994), 69 Ohio St.3d 339 at 342. A person may revoke his or her implied consent to the warrantless search to determine alcohol content after being informed of the consequences of doing so by the officer. Maumee at 342. The Ohio Supreme Court has previously held that the Fourth Amendment to the United States Constitution prohibits placing a defendant in a position of choosing between allowing a warrantless search or facing criminal penalties. Wilson v. Cincinnati (1976), 46 Ohio St.2d 138. Although the facts in the Wilson case concerned a property inspection, the underlying philosophy is that a defendant cannot be criminally penalized for exercising a constitutional right to revoke consent. State v. Scott M. (1999), 135 Ohio App.3d 253 citing Camara v. Municipal Court of San Francisco (1967), 387 U.s. 523.

In Hoover, Ohio’s Third District Court of Appeals cited to First District Court holding that a suspect may limit or revoke consent to a warrantless search even after the search has begun. State v. Riggins, 2004 Ohio App. LEXIS 3859 (August 13, 2004) Hamilton Co. App. No. C-030626.

The use of the implied consent statute can constitutionally require one to consent to a warrantless search or face administrative consequences. But it cannot require that one comply or face criminal sanctions. “[T]he act of refusing a chemical test for alcohol, standing alone, does not constitute a criminal ‘offense’ of any kind.” State v. Gustafson (1996), 76 Ohio St.3d 425 at 439. The Ohio Supreme Court has historically and repeatedly characterized driver’s license suspensions imposed pursuant to Ohio’s implied consent statutes as being civil in nature and remedial in purpose.” Gustafson at 440.

To apply a criminal penalty to the exercise of a constitutional right, the right to refuse a warrantless search by the government, is improper. The Hoover Court cited to the cases of: 1) State v. Morris (2005), 159 Ohio App.3d 775 (finding it improper to increase sentence due to defendant’s exercise of right to a jury trial); 2) State v. Glass, 2004 Ohio App. LEXIS 4082 (August 26, 2004) Cuyahoga Co. App. No. 83950 (holding it improper for trial court to use exercise of constitutional right as an aggravating factor in sentencing); and State v. Scott, 2006 Ohio App. LEXIS 4651 (September 11, 2006) Pickaway Co. App. No. No. 06CA3 (holding it improper for trial court to increase a sentence due to exercise of a right to trial).

The Hoover Court held that since the only difference between a minimum mandatory sentence of ten days and a minimum mandatory sentence of twenty days is the revocation of the consent to a warrantless search, a criminal penalty is being imposed for the refusal, which is not in and of itself a criminal offense.

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