A recent Ohio case illustrates a very important aspect of Ohio’s OVI law.  The case of State v. Lewis, 2010 Ohio 2872, exemplifies an additional consequence of one’s refusal to submit to a chemical test.

The case involved a defendant’s arrest for OVI.  The defendant refused to submit to a chemical test.  But, based upon personal observations, the accused’s traffic violations and field sobriety tests, the defendant was charged with OVI.  The defendant was eventually found not guilty of OVI and the court terminated the Administrative License Suspension.

The City of Cincinnati appealed the termination of the ALS claiming the court was wrong in terminating the ALS due to R.C. 4511.191(B) that provides for an automatic license suspension following the refusal to submit to a chemical test. R.C. 4511.191(D)(1) specifically states that “[a]ny subsequent finding that the person is not guilty of the charge that resulted in the person being requested to take the chemical test or tests under division (A) of this section does not affect the suspension.”

The appellate court agreed with the city citing the case of State v. Kurtz (Dec. 31, 1997), 2nd Dist. No. 97-CA-25.  In that case Kurtz had been stopped and refused to submit to a chemical test resulting in an ALS.  Kurtz eventually pled no-contest to a lesser charge, but the court continued to ALS citing the above statute.

So, in refusing a chemical test the violator should be aware of this additional consequence of their refusal – a continuation of the ALS even if found not guilty of OVI.

The first question from all of my professional clients charged with an OVI is “Can I lose my license if found guilty of OVI?”  In past blogs, I’ve discussed the effect of an OVI conviction if you have a Commercial Driver’s License (CDL) and the effect of an OVI conviction on your employment.  But, can an OVI conviction result in losing your professional license?

The Ohio Revised Code details over 45 separate occupations and professions that are subject to the provisions of Ohio law.  They range from accounting O.R.C. Chapter 4701) to Orthodists, Prosthestics and  Pedorthists (O.R.C. Chapter 4779).  A number of these statutes specifically state under what circumstances one’s licensee can be subject to discipline (Accountants, Nurses, Social Workers, and Pharmacists, for example).  Others statutes leave it up the governing body of that profession to deal with censure (Attorneys).

Most of theses statutes and codes of responsibility call for the possible censure of any member of the profession performing their occupations while under the influence of drugs or alcohol.  For example, dentists may be disciplined when it is shown they have “…an inability to practice under accepted standards of the profession because of …, dependence on alcohol or other drugs, or excessive use of alcohol or other drugs,” O.R.C. 4715(A)(8).  Nurses can be sanctioned for “Habitual indulgence in the use of controlled substances, other habit-forming drugs, or alcohol or other chemical substances to an extent that impairs ability to practice,” O.R.C.4723.28(B)(9).

Broad latitude is given the governing boards to deal with those in violation.  Reprimands and suspensions, in the most serious cases, are often used to police individual professions.  In recent years, many professions have taken enlightened steps to deal with the use of drugs and alcohol.  For example, the Ohio Supreme Court has established the Ohio Lawyers Assistance Program, a comprehensive program to deal with members of the profession suffering from alcoholism or substance abuse. The program is given broad powers to deal with and attempt to end the addiction.

But an habitual offender must deal with another consequence brought on by recent changes to Ohio’s OVI law.  Under the law, anyone found guilty of OVI for more than 3 times in the past 6 years (or 20 years if the defendant refuses to submit to a chemical test) faces a possible conviction for a 4th degree felony (3rd degree if convicted of a second OVI 4th degree felony during their lifetime).

This presents an entirely new set of circumstances that could call for much more serious sanctions including a suspension of one’s license.  The reason is most occupational statutes or professional codes call for serious sanctions for those convicted of a felony.  A recent Ohio case illustrates the possibility of serious sanctions being imposed in that event.  The case, Disciplinary Counsel v. Landis, 124 Ohio St. 3d 508 involved the suspension of any attorney’s license for his conviction of his 4th OVI within a 6 year period.  While the discipline was extreme, it shows the clear possibility of license suspension or outright revocation when a licensee is convicted of multiple OVI offenses.

What can be learned from this example?  First, if you are a professional practicing pursuant to statute, you should have a complete understanding of the basis by which you can be disciplined.  Second, if you find yourself having problems with alcohol or controlled substances, immediately contact your professional association to see if there are programs available so the issue can be resolved before the problem becomes habitual and subjects you to serious disciplinary action.  Finally, if you find yourself in a situation where you are facing serious disciplinary action, immediately seek advice of competent attorney who is knowledgeable about Ohio’s OVI law and has had experience dealing with defendants with multiple offenses.

Recently, I received my new telephone books and glued to the front of the book was an advertisement from a local attorney with his “Advise When Stopped for a DUI.” One of his prominent pieces of advise was “Never….Never Agree to take a Breathalyzer Test.” Is this blanket advise sound? In some instances yes. In most instances no. Like most advise, the surrounding circumstances play a major role in the decision. This blog discusses the consequences of one’s refusal.

First, one’s refusal to agree to take a test is a violation of Ohio’s “implied consent” statute. That statute, O.R.C. 4511.191, sets forth the law that the right to drive in Ohio implies the driver’s agreement to submit to a chemical test when requested. They may refuse, but that refusal will result in a one year suspension of their driving privileges in Ohio.

In addition to one’s violation of the implied consent statute, that refusal will trigger the new twenty year “look back” rule. Ordinarily, the enhancement provisions of Ohio’s OVI laws depend upon the number of OVI convictions within the prior six years. As a result of a refusal, the enhancement provision are triggered for any prior OVI violations in the last TWENTY years.

Finally, a recent Ohio Supreme Court decisions permitted courts to increase a violator’s penalties for refusing a chemical test. Historically, Ohio courts held to the rule that while a person’s refusal to take a test violated Ohio’s implied consent law, that person did have a constitutional right to refuse. As such, courts rarely increased a person’s penalties for their refusal to take a test. The Ohio Supreme court’s ruling changed that. The court ruled that the right to drive in Ohio is a privilege and not an inherent constitutional right. Therefore, a court is permitted to increase penalties for refusing without violating the person’s constitutional rights.

Allow me to provide you an example of the hornet’s nest that can result from one’s refusal to take a test. This was true case. My client was driving home from his girlfriend’s house where they were watching a football game. While watching the game, they had a pizza and a “couple of beers.” At one time my client was a heavy drinker and had several violations for OVI earlier in his life. But he had reformed and had no violations for OVI in the last six years. On the way home, he crossed the center line and was stopped by the local police. When asked to take a test, he refused.

Let’s assume he had taken the breathalyzer and been convicted. As a first time offender in six years, he would have faced a first degree misdemeanor carrying the following possible sentence:

Three days in jail or a three day driver’s intervention program, a $375-$1075 fine, a license suspension for six months to one year, and the right to request limited driving privileges for work, medical, etc after fifteen days.

So what were the consequences of his refusal?

First, he received a suspension of his driving privileges for one year. But, that wasn’t the worst of it. His refusal triggered the twenty year look back rule. While he had no violations in the last six years. He had five others in the prior twenty years. Therefore, under Ohio law, he faced a forth degree felony OVI conviction as it was his sixth violation in twenty years. He faced the following penalties: Actual incarceration for a minimum of 120 days (four months) up to 1 year, a $1350-$10,500 fine, a mandatory alcohol addiction program, license suspension for three years to life with no privileges for three years, an alcohol interlock on any car he drove, and a forfeiture of his car to the State of Ohio (he had just purchased, for cash, a new Jeep Cherokee).

So should he have agreed to take the breathalyzer? Of course. Even if convicted, the consequences were minimal compared to what he faced as a result of his refusal.

Knowing the accused’s background is critical in properly advising them. Offering blanket advise against submitting to a test can have dire consequences.

Legal experts have debated for years the issue of restricted freedoms due to actions that might not be criminal by definition. The major debate centers around sentence enhancement due to one’s refusal to submit to chemical testing, i.e. blood draws, DNA tests, etc. Even the US Supreme Court has raised the ire of many legal scholars because of its differing opinions relating to many of these freedoms.

If you read this blog, a recent article discussed one appellate court’s opinion regarding the criminalization of a defendant’s right to refuse to submit to a chemical test. While most legal scholars side on a defendant’s right to refuse without the stigma of an enhanced sentence, the Fifth Appellate Court in State of Ohio v. Adam, sustained the lower court’s right to enhance the defendant’s sentence for his refusal to submit to a chemical test.

Apparently, the Ohio Supreme Court, in its recent decision in State v. Hoover, 2009 Ohio 4993, has put the issue to rest (at least in Ohio) for multiple offenders. In that case, the defendant refused the breathalyzer and his sentence was doubled due to his violation of O.R.C. 4511.19(A)(2). That statute permits the enhancement of an OVI sentence if the defendant refused to submit to a chemical test and has a prior conviction in the last 20 years.

The defendant argued that the statute violated his Fourth and Fifth Amendment Rights which protects him from illegal searches and seizures and violations of his due process rights. The court disagreed stating that the right to drive in Ohio is not an inherent constitutional right. It is a privilege that does not have the same constitutional safeguards.

The court cited the cases of Westerville v.Cunningham, 15 Ohio St. 2d 121 and Schmerber v. California, 384 U.S. 757 that stated section 4511.191 of the Ohio Revised Code, does not violate the search and seizure provision of the Fourth Amendment, nor the self-incrimination clause of the Fifth Amendment to the United States Constitution.

The court also cited State v. Gustafson, 76 Ohio St.3d 425 which declared that the administrative license suspension provisions of the 4511.19 was not a violation of the defendant’s Fourth and Fifth Amendment Rights to further rationalize its findings.

In conclusion, the court declared the enhancement provision for refusing to submit to a chemical test is constitutional and allows a court to enhance a defendant’s sentence if the following are proven beyond a reasonable doubt: (1) a DUI conviction within 20 years of the current violation, (2) operation of a motor vehicle while under the influence of alcohol or drugs, and (3) a refusal to submit to a chemical test while under arrest for the current DUI.

You will note the court did not address the issue of court’s right to enhance the sentence of a first time offender for their refusal to submit to a chemical test. This is still under debate as discussed in a prior blog.

When the OVI statutes in Ohio were initially amended many thought the administrative license suspension (ALS) appeal was required to be filed at the first appearance. But controversy arose, and thus divergent court opinions, in interpreting the legislature’s intent. This resulted from the act’s language that stated, “…the person may appeal the suspension at the person’s initial appearance on the charge.”

As a result of the language, many courts held that the requirement that the appeal be made at the defendant’s first appearance was discretionary, see State v. Nichols (Nov. 6, 2001), 5th Dist. Nos. 01CA7, 01CA8, and some permitted the filing of the ALS appeal after the initial appearance.

Subsequently, the legislature amended the statute permitting the filing of an ALS appeal within 30 days after the defendant’s first appearance. While the language of the statute still contained the word “may,” one Ohio district court opined this discretion is no longer available.

A Seventh Appellate Court case, State v. Derov, 2009 Ohio 4810, involved a defendant who filed her ALS appeal after the 30-day time period. The lower court denied her appeal citing the fact that the appeal was not filed timely. In her appeal the defendant argued that the language still contained the term “may” and, thus, the court had the discretion to hear her appeal outside the statutory period. The appellate court disagreed. In its opinion the court stated:

“There is no reason why the time period for this type of appeal would be treated differently from the jurisdictional time periods mandated in other appellate contexts. The use of “may” in the statute does not mean that one can file an ALS appeal at the initial appearance or within thirty days of that initial appearance or at any time the person so chooses.”

The court went on to say “‘may’ can be construed as mandatory, citing State ex rel. Smith v. Barnell, 109 Ohio St. 246, 256.

Therefore, any defendant or their attorney should be aware that many courts no longer hold that the time limit within which to file an ALS appeal is discretionary and their failure to file within the 30-day time limit could jeopardize that appeal.