Refusing to take a breath, blood or urine test when suspected of Operating a Vehicle Impaired in Ohio, also called an OVI, can result in serious consequences. If you are facing OVI-related charges, it is critical that you contact a qualified Ohio OVI Defense Lawyer immediately to learn more about your legal rights and options. We also recommend that you keep reading to better understand what an OVI is and how it can potentially affect you should you face such a charge.
When the state of Ohio grants you a driver’s license, the law presumes that you have automatically consented to taking a chemical test at the request of any police officer who legitimately suspects you of OVI. Refusal to take the test is a separate offense if done within 20 years of an OVI conviction.
Types of Tests
Three main types of chemical tests are typically used to determine the level of intoxication of a driver – breathalyzer tests, blood tests and urine tests. A breathalyzer is used when the officer suspects you of alcohol intoxication, while a blood or urine test is more likely to be used if the officer suspects that you are intoxicated with another substance. If you are injured and unconscious due to an accident, a blood test can be administered to determine your level of intoxication.
Implied Consent Warnings and Use of Force
If you refuse to take a chemical test, the officer is required to explain the concept of implied consent to you. If you still refuse, the officer my arrest you, and he or she is entitled to use reasonable force to compel you to submit to chemical testing.
If you refuse to submit to a chemical test, your license will be suspended for one year for the first offense (compared to a 90-day license suspension for a first-offense OVI conviction). The license suspension period increases for every subsequent offense during any six-year period, and it is always longer than the equivalent OVI-based suspension. You will also be sentenced to incarceration for three days to six months, and fined between $375 and. $1,075. You will be required to complete a three-day driver’s intervention program, and an ignition interlock device will be installed on your car. Remember that you can be convicted of refusal to take a chemical test within 20 years of a prior conviction even if the officer forces you to submit to the test and obtains the OVI-related evidence against you anyway.
Relationship with an OVI Charge
Since refusal to submit to chemical testing is a charge that is separate from OVI, you can be charged with both an OVI and refusal to submit to chemical testing. Since they are separate charges, your license suspension for refusing to be tested will remain in place even if you are not convicted of OVI.
Please note that an OVI conviction will result in additional penalties, including an additional suspension of your driver’s license. Moreover, you may not be able to beat an OVI conviction simply by refusing a chemical test. The prosecutor can seek a conviction based on field sobriety tests and the booking room video, for example. The officer can even use your refusal against you in OVI court, by suggesting that you refused to be tested because you knew you were intoxicated.
On October 28th, a mother traveling through New Mexico with her five children was fired upon by police during a traffic stop. The incident occurred when Oriana Ferrell, a Tennessee resident, was pulled over for speeding. The woman refused to cooperate with police and an officer fired three shots into the vehicle, where her kids, aged 6 to 18, were sitting. None of the children were injured.
The details of the incident include Ferrell pulling to the side of the road several times, her son confronting officers, and a window of the vehicle being smashed in. Due to the police violence involved in the case, it may be difficult to pursue charges against Ferrell.
Ferrell faces charges of child abuse, fleeing an officer, and possession of drug paraphernalia. An investigation is being launched into the actions of the officers on the scene. Currently Ferrell is being held on bail.
The drug paraphernalia charges are a result of the officer’s finding two marijuana pipes inside the vehicle after arresting Ferrell. There is dispute over whether she had been previously convicted of a DUI charge, but in either case she faces serious consequences for all of these offenses.
In Ohio, a charge for possessing drug paraphernalia sometimes accompanies a charge of driving while under the influence of drugs. If convicted of a paraphernalia charge, an offender faces the possibility of up to 30 days in jail and a fine of up to $250, but these penalties may be increased based on the offender’s prior criminal history.
Drug paraphernalia is defined by Ohio Revised Code 2925.14 as any equipment, products, or materials designed with the intention of using illegal drugs. Common examples include bongs, syringes, water pipes, plastic baggies, and scales. Even if the item in question was temporarily placed in an area that you are responsible for, such as the glove box of your car or your pocket, you may still be held liable for its possession. The presence of paraphernalia can lead to officer’s obtaining a warrant to search your belongings for drugs.
A charge of possessing drug paraphernalia can easily come from a misunderstanding, but it can have a lasting impact of the alleged offender’s future. Any drug-related charge can interfere with employment and education opportunities. Those facing a charge for possession or distributing drug paraphernalia can contact an attorney for a better chance at defending themselves against this allegation.
The Fourth Amendment gives "the right of the people to be secure in their person, houses, papers, and effects, against unreasonable searches and seizures," and though it seems straightforward and clear enough, the U.S. Supreme Court has spent decades specifying what constitutes a violation of this right and what doesn’t. The most recent case in this venture, Missouri v. McNeely, centers around whether it is a violation of an individual’s Fourth Amendment rights to forcibly draw blood from an alleged DUI offender after they refuse to submit to alcohol testing without a warrant or directive from the courts.
The controversy in this case arises out of strongly divided interpretation of the Supreme Court precedent of Schmerber v. California. In this case, the court determined that a law enforcement officer may forcibly draw blood without a warrant if "special facts" were present that indicated exigent circumstances. The exigent circumstances in this case were that there was a severe accident, and between investigating the accident and taking the alleged offender to the hospital, the officer did not have time to get a warrant for the blood sample before the evidence of alcohol had disappeared from the bloodstream.
However, in Missouri v. McNeely there were no such exigent circumstances except for the fact that the percentage of alcohol in a person’s blood begins to lessen shortly after the person quits drinking. The patrolman pulled over Tyler McNeely for driving 11 miles over the speed limit, and subsequently had reasonable cause to believe that McNeely was guilty of DUI upon McNeely’s failure of field sobriety tests. After McNeely refused a breath test, the officer drove him to a hospital where he also refused the blood test. Since the officer had recently read material about implied consent, he believed a warrant was not necessary for a force draw and ordered the blood test without even pursuing a warrant.
McNeely’s levels were nearly double the legal limit, so he was taken to court for DUI. However, the trial judge threw out the BAC evidence, claiming the forced blood draw was against McNeely’s constitutional rights – a decision the Missouri Supreme Court upheld. The prosecution, though, continues to contend that the chemical elimination of the DUI evidence in the blood is an issue urgent enough to justify a forced blood withdrawal without a warrant.
The issue of whether or not this naturally-occurring elimination of evidence is enough of a exigent circumstance all by itself to allow the precedent of Schmerber v. California to apply is what is up for debate in the Supreme Court case. The prosecution argues that several courts throughout the United States have already ruled that the dissipation of evidence from the defendant’s bloodstream is indeed enough of an exigent circumstance to warrant forced blood withdrawal without the court’s permission.
McNeely’s representatives – lawyers from the American Civil Liberties Union – contend that the forced obtainment of evidence actually violates the precedent because there were not circumstances present to prevent the patrolman to at least consider or attempt getting a warrant. Additionally, there was other evidence available in the case that the prosecution could use besides the blood test.
McNeely’s lawyers also argue that there is not enough scientific evidence or expert testimony to determine that alcohol disappears from the blood fast enough to excuse a force withdrawal, and that even by the prosecution’s standard of alcohol disappearing from the bloodstream at an average of .0165%, it would have taken over four hours for the blood evidence to dissipate enough to prevent violation of the legal limit. Since many warrants can be obtained electronically in minutes nowadays, McNeely’s lawyers contend that the slow eroding of evidence in a alleged DUI offender’s blood is not exigent enough on its own to permit the lack of a warrant.
A decision hasn’t been reached yet, but according to Lyle Denniston, reporter for SCOTUSBlog, the justices do seem to be agreeing on a few things. The first is that the police are probably going to have to at least attempt to obtain a warrant, despite the fact that according to the precedent of Schmerber v. California, it is not always required. The justices also seem to agree that inserting a needle into a person to obtain a blood sample is a procedure that would be invasive if performed by the government without the alleged offender’s consent.
Additionally, the Supreme Court seems to agree that the premise of alcohol disappearing from the blood stream is not an exigent circumstance severe enough by itself to permit warrantless forced blood draws, and that the warrant requirement of the Fourth Amendment should not be simply set aside for all DUI cases where the officer decides to take a blood sample. Hopefully, the final decision will reflect these assumed agreements and protect an individual’s Fourth Amendment rights from the whims of a police officer who wants a blood sample in an alleged DUI case. Drivers should retain a right of refusal to submit to DUI testing in Columbus.