My last article concerned the consequences of refusing to submit to a chemical test.  I cited the recent Coshocton case where the judge added 10 days to a Defendant’s sentence because he refused to submit to a breathalyzer test.  In my article I submitted that you need to think twice before refusing to submit to a test due to this ruling.

Well, I submit to you an additional reason.  In a recent amendment to Ohio’s OVI laws, the legislature tweaked the “look back” rules.  Previously the court “looked back” 5 years to determine if the Defendant had a previous conviction.  If so, the penalty for each subsequent conviction was enhanced.  Due to the recent legislation, the court can now look back 20 years for any prior conviction and enhance the sentence if the court finds a prior conviction within that time period.

I recently represented a gentlemen on an OVI felony case.  Why?  On the day of the incident, my client was drinking at his girlfriends home. While driving home, he was stopped for weaving and the officer smelled alcohol his breath.  He was subsequently arrested for OVI and asked to submit to a breathalyzer test.  He refused.  My client thought he was safe as he had not been convicted of an OVI offense for over 6 years.  Unfortunately, he did not know about the new law. He had been convicted of three prior OVI’s prior to that time.  Therefore, because of his refusal, he now faced a felony due to having his fourth OVI in 20 years!

Therefore, if you had a conviction within the last 20 years, you must think twice about refusing.

You’ve heard the advertising from some DUI defense practitioners: “Refuse the breathalyzer.  It will make it harder to prove you were driving under the influence.”  This might be true, but a recent Ohio case might give you and your attorney second thoughts.

As now constituted, Ohio’s DUI law incorporates penalty enhancement for subsequent offenses.  For example, a first DUI calls for a minimum of three days in jail or diversion, a second in six years requires a minimum of ten days in jail and so on.  Historically, in most instances, courts adhered to these minimums notwithstanding the defendant’s refusal to submit to a test.

Due to a case decided in the Fifth Appellate District (Coshocton, Ohio), this may drastically change.  The case, State of Ohio v. Adam Hill, upheld a courts right to punish a defendant for refusing to take a breathalyzer.  In that case Mr. Hill was arrested for driving under the influence.  He was asked to take a breathalyzer and he refused.  The court gave the Defendant an additional ten days in jail for refusing to take the breathalyzer.

The Defendant appealed his sentencing arguing his constitutional rights were violated when the court sentenced him to an additional ten days incarceration solely because he refused to submit to a breath alcohol test.

The court stated, “…there is no constitutional right to refuse a chemical test…the choice to submit to or refuse the test is not a constitutional right, but rather a matter of legislative grace.”

The court went on to say, “Since Ohio has long accepted the principle that a defendant’s refusal may be used in considering whether the defendant is under the influence, we see no distinction in the use of that same refusal as an element to enhance a minimum term of imprisonment.”

Therefore, this appellate court upheld the lower court’s decision to add ten days to the defendant’s sentence for refusing to the breath test.

While this case is only law within the Fifth Appellate’s area of jurisdiction, other Ohio courts are permitted to adopt this reasoning to enhance sentences for a defendant’s refusal to take a test.  And while this decision was made on the appellate level, if the Ohio Supreme Court sustains this case, it will become the law throughout Ohio allowing police to use this leverage to mandate a defendant’s compliance.Court of Appeals Sustains Lower Court’s Right to Enhance a Sentence for Refusing to Take Beathalyzer Test