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.

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.

Many of my colleagues claim if a person is found not guilty of driving under the influence, the violation of the implied consent law (for refusing to take a chemical test) is obviated and their client will not loose their driving privileges. A recent Ohio case, City of Westlake v. Pesta, 2009 Ohio 4713 proves them to be wrong.

In this case, the defendant refused to submit to a chemical test. In addition to the OVI charge, his license was suspended, immediately, for his violation of Ohio’s implied consent law. Pesta was eventually found not guilty of OVI and petitioned the court for a reinstatement of his driving privileges. His petition was denied.

In Ohio, no person may operate a motor vehicle on the public roads or on any private property used by the public without a valid license, R.C. 4510.123(A)(1). The licensed operation of a motor vehicle in this state is a privilege, not a right. Maumee v. Gabriel (1988), 35 Ohio St.3d 60, 63, 518 N.E.2d 558.

One of the conditions attached to the privilege of being licensed to drive is the operator’s consent to chemical or other tests of the operator’s blood, urine, or breath if a law enforcement officer has reasonable grounds to believe that the operator had been driving while intoxicated or impaired. R.C. 4511.191(A)(2).

The operator may refuse to take any requested tests, but does so at the peril of losing driving privileges. If the operator of a motor vehicle refuses to submit to a requested test, the arresting officer must seize the operator’s license and immediately administratively suspend the driver’s operating privileges. R.C. 4511.192(D)(1). An administrative license suspension goes into effect immediately, and the suspension is not affected by any 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.

What does all this mean? It means that even if one is found not guilty of driving under the influence, their refusal to take a test will result in a suspension. The time for appealing their suspension is within the statutory period for appealing an administrative license suspension, not after the adjudication of the OVI charge.

As long as breath/alcohol devices were invented the great debate was – Should I agree to take the test? Many of my colleagues say under no circumstances should you take the breathalyzer. Some lawyers have even gone so far as to advertise that position. I’ve seen business cards with “What should I do if I’m stopped for DUI?” on the back of attorney’s cards,” advocating that under no circumstances should you agree to take a test. I’ve even seen it in telephone books and other printed media. What is the answer – Should I or should I not take the breathalyzer? The answer is much more complicated than first thought and isn’t so simplistic as to justify the thought that one shouldn’t take the breathalyzer under any circumstances.

The usual scenario is as follows: The accused is leaving a party, bar or a friend’s house having just ingested a quantity of alcohol – beer, wine, cocktails, etc. On their way home they are observed driving erratically – speeding, weaving, taking a side turn, not stopping at a stop sign, etc. A police officer stops the driver and asks for their driver’s license. The driver rolls down their window and while doing so, the officer detects the smell of alcohol. After asking some investigatory questions, the office determines that there is sufficient evidence to warrant further investigation by way of field sobriety tests. The driver performs these tests and the officer determines the driver has displayed sufficient clues to warrant the officer to believe that the driver might be driving under the influence. He places the driver in the police car and transports the driver to the policed station, where additional questions are asked, the driver is read the back of Form 2255 – the consequences for failure to take the test and then asked to take a breathalyzer test.

Now, should the driver take the test? That’s the $64 question and one that warrants a serious thought. The answer is complicated as the answer requires knowledge of the law and other issues that I will call “X” factor.

THE LAW

The DUI /OVI Law

If you have followed my blog and gone to my web site, you should have an understanding of the DUI/OVI law. Basically, if you are found guilty you face enhanced penalties if you have prior convictions in the last six years. The complete list of penalties can be viewed using the outstanding charts prepared by Judge Jennifer Weiler of the Garfield Heights Municipal Court.

If you are first offender, you face 3-days in jail or the DIP school, a minimum 6-month suspension, plus fines and probation. A second offense garners a mandatory minimum of 10-days in jail, and enhanced suspension and penalties. Penalties get larger as the number of offenses increase within a 6-year period. Complicating the issue is the fact the judges are given a parameter. For a first offense, the minimum sentence is 3-days. But a judge can give an offender up to 6-months incarceration. Once again, these parameters are enhanced based upon the number offenses incurred in a 6-year period . So for example, lets assume this is your first offense in the last 6 years. But you had an additional DUI conviction 8 years ago. In reviewing your record, a judge might sentence you to more than the minimum and some judges do just that. While the vast majority of judges sentence first offenders to the minimum, the “X” factor comes into play – what is your driving record in past years?

Further complicating this issue is the automatic enhancement if the reading exceeds .17. Once again, look at Judge Weiler’s charts. You will note that every penalty is doubled if the breathalyzer reading is greater than .17 (just over twice the legal limit).

The Implied Consent Law

Further convoluting the issue is Ohio’s Implied Consent Law. Basically, it mandates that anyone having an Ohio driver’s license agrees to submit to a chemical test when asked by the proper authorities. While the driver can refuse, the law imposes a mandatory one year suspension of driving privileges if the accused refuses to take the test.

The “X” factor in this is the fact that some judges will enhance your sentence if the record indicates a refusal to take the test. If you read my June 3, 2009 blog you will note the Fifth Appellate District Court sustained a judges right to enhance an OVI sentence due to the defendant’s refusal to take a test. In that case the judge added an additional 10-days in jail for refusing to take the test.

OTHER “X FACTORS

There are a number of other issues that come into play in determining whether to take a test. Among these are:

1. Do I have a Commercial Driver’s License? If I do, I face draconian penalties if found guilty -see my May 29, 2009 blog.

2. Was I involved in a car accident that could have a devastating financial effect?

3. What is the judge’s reputation in that jurisdiction for enhancement for refusing to take a test.

4. If I ask to speak to an attorney prior to my taking the test, how much privacy will I have? You certainly don’t want an officer listening to what could be inculpatory statements made by you during your telephone consultation.

5. Legal ethics. Can an attorney give you proper legal advice and be assured you understand everything when you are allegedly under the influence?

6. Honest self-evaluation. How many drinks did you really have? How honest are you being to the police and your attorney, if you speak to one? Are your truly able to think and analyze the situation given the amount of drinks you ingested and the pressure you’re under being in police custody? Basically, are you able to think straight given the totality of the circumstances?

Based upon the above let’s take some examples:

1. Let’s assume this is your first offense. You have no priors. While you did have a glass of wine and one after-dinner drink, you are coherent and able to analyze your situation with confidence. The judge in that jurisdiction while fair, does frown upon those who refuse to take a test. Now lets think about the consequences of a refusal. If you take the test, chances are you will get the minimum – the 3-day DIP school and minimum fines and a 6-month suspension. If you refuse, Ohio law mandates a 1-year suspension of you license and if you are convicted the judge may enhance your sentence due to your refusal. So in this instance you might consider taking the breathalyzer.

2. This is your first offense. You have no priors. While you did have a glass of wine and one after-dinner drink, but you are coherent an
d able to analyze your situation with confidence. The judge in this jurisdiction does not have a reputation for enhancing your sentence for your refusal to take a test. But, you are a truck driver and have a commercial driver’s license (CDL). If convicted you face a mandatory 1-year suspensions of the your CDL – with no work privileges. In this instance you might want to think about refusing the breathalyzer for obvious reasons.

3. This is your third offense. You were quite inebriated to the extent that you had difficulty standing up and clearly flunked all the field sobriety tests. You are facing a minimum of 60-days in jail, 180 day suspension of your driving privileges and other penalties all of which will be doubled if the reading exceeds .17. In this instance, refusing the breathalyzer might be the right decision.

Now having said all that, the decision to take or not take a test requires a complete analysis of the law and other factors that may or may not be involved in the circumstances surrounding your arrest. Your decision must be based upon a cold and honest evaluation of all these factors. Notwithstanding your state of mind, you must attempt to weight all these factors as best you can before making your decision.

Your decision can not be based upon some blanket advise given on a business card or in an advertisement. The advice set forth in these printed media are not made with a complete understanding of the circumstances surrounding your arrest.