When we were out in Cleveland during St. Patty’s day, people constantly asked us whether they should refuse to submit to the breathalyzer when asked by a police officer. We did our best to answer this tricky question throughout the day, but we thought it would be best to address it with a little more detail. There are three tests approved in Ohio for use by the police. They are:
Ohio DUI Blood Test (the most accurate – used if a suspect is taken to the hospital because they were injured in a crash)
Ohio DUI Breath Test (by far the most common – most police departments have their own breath test machine at the station)
Ohio DUI Urine Test (the least accurate – but the one most commonly used if drugs are suspected)
If a person refuses to submit to the test or submits to the test and tests over the legal limit, their license is immediately suspended. The suspension is called an Administrative License Suspension (ALS). It is not imposed by a Judge, but by the Ohio Bureau of Motor Vehicles. The police officer acts as the BMV’s agent when imposing the suspension.
The ALS is imposed because the law considers driving a privilege and not a right. When one accepts an Ohio Driver’s License, they are agreeing to provide a blood, breath, or urine sample to a police officer if there is probable cause to believe the person is operating a vehicle under the influence of drugs or alcohol. Refusing to provide the sample, or providing a sample that tests over the legal limit, results in a suspension.
The length of the Administrative License Suspension imposed depends on two primary factors: First, is this a refusal to submit to a chemical test, or is it a test over the legal limit? Second, how many prior refusals or offenses has the person had in the past 6 years?
|OHIO ADMINISTRATIVE LICENSE SUSPENSION CHART|
|OFFENSE(S) IN PAST 6 YEARS||TEST FAILURE 0.08% +||TEST REFUSAL|
|FIRST OFFENSE||90 Day Suspension||One Year Suspension|
|SECOND OFFENSE||One Year Suspension||Two Year Suspension|
|THIRD OFFENSE||Two Year Suspension||Three Year Suspension|
|FOURTH OR GREATER||Three Year Suspension||Five Year Suspension|
|The administrative license suspension (ALS) for failing or refusing a test ends upon conviction following a plea of guilty or no contest, and the time served under the ALS will be credited against the suspension the court imposes for the conviction.
Let’s run through a hypothetical situation to make sure everyone understands how an ALS suspension works.
You get pulled over, the cops have probable cause, and you submit to a field sobriety test and fail. You are then brought to the arresting station’s BAC room. You are read form 2255 (ALS Form). At this point, you refuse to blow. The arresting officer will seize your license, and if this is your first refusal your license will be suspended automatically for one year from the date of refusal. You will not be able to receive driving privileges for 30 days. However, if you blew and it was less than a .175, your license will be suspended for 90 Days and you will be able to receive driving privileges within 15 days.
A refusal will be on your record for 20 years, meaning even if the charges of an OVI are reduced and you get pulled over 4 years later for an OVI, that prior refusal will elevate the penalties of that OVI. For example, your first OVI in 6 years usually carries 3 days jail or DIP (Driver Intervention Program). However, if this is your first OVI in six years and you have a prior refusal over the last 20 years you face a mandatory minimum of 6 days jail or 3 days jail and 3 days DIP.
For a complete list of OVI penalties in Ohio and how a prior refusal affects you, visit this site http://bit.ly/fAio7J.
Deciding if one should refuse to blow is a question that as an attorney is almost impossible to answer succinctly or with finality. Remember that you never have to perform field sobriety tests or blow into a portable breathalyzer. The ultimate decision is one that you must make based on the totality of the circumstances.
Future posts on the Ohio OVI Blog will include Visual detection of OVI Motorcyclists, limited driving privileges and phase 2 of an automobile stop “personal contact.” Want more answers about OVI in Ohio or need help with a case? Contact us.