Should I Refuse a Breathalyzer Test in Ohio?

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Should I Refuse a Breathalyzer Test if Pulled Over For a DUI in Ohio?

One of the most frequently asked question posed to OVI/DUI attorneys is whether or not you should refuse a breathalyzer test if you are pulled over for an OVI/DUI. To answer that question, we often start with the basics of OVI/DUI law in Ohio.

Ohio OVI/DUI Law – The Basics

When dealing with Ohio DUI/OVI charges, there are two things typically done by police officers. If you refuse the breathalyzer test, the officer will usually fall back on what is referred to as an “(A)(1)(a) OVI/DUI.” (referring to Ohio Revised Code 4511(A)(1)(a)). Under this Ohio law, the alleged impairment is shown by subjective circumstantial evidence. The officer at the scene will usually testify as to their observations of your driving, balance, alcohol smell, slurred speech, conduct, or attitude in establishing impairment. Sometimes lawyers will say that you should refuse a breathalyzer and the main reason why in our opinion is that it is generally not as easy to establish your guilt or innocence when the evidence is based on this observations. If you plan to take your case to trial, a typical jury might have jurors who disagree on when a defendant is actually “impaired” by alcohol or other prohibited chemical substance. The circumstantial evidence may not be enough without the breathalyzer test results. Without a more scientific breathalyzer measurement, it can be difficult to convict and this may work in your favor when either working out a deal with the State or otherwise defending your innocence at trial.

That being said, there is no hard and fast rule that without this breathalyzer test evidence, the State cannot proceed. The State can and certainly does prosecute individuals who refuse breathalyzer tests relying solely on the Officer’s observations. It is the testimony of the police officer that will be central to the case and if there are concerns as to the efficacy of their testimony when they simply don’t have the hard evidence (i.e. the chemical test to get the conviction beyond a reasonable doubt) the case against you may simply be harder to make. Often, if it is your first offense, your charge will be pled down to a lesser offence. That may include a physical control or a reckless operation of a motor vehicle.

Having the results of a chemical test, however, changes everything. The per se DUI/OVI charge found in either ORC 4511(A)(1)(d) or (h) (which involve the alcohol breath test) will be provided to the prosecutor. This occurs when the you agree to take the chemical test after arrest. The test may not only be alcohol but also blood or urine samples. If positive, this test will become conclusive proof of your impairment while driving a vehicle. The most used testing device is the breath machine. So, deciding to “blow” or not is a complicated decision.

Should I Refuse or Submit to the Breathalyzer Test?

It truly does depend on several factors before you decide. For most people, an DUI/OVI is usually the first time they have encountered law enforcement. Once pulled over, it is common to become scared, stressed, and very nervous. You want to do the right thing but what is the “right thing”? Should you cooperate even if it may incriminate yourself? There are reasons to decline the breath alcohol test. The roadside test taken with a portable breath test (PBT) is frequently unreliable. As such, it is not admissible in Court. It generally should be politely declined unless you have not consumed any alcohol or any other substance that could result in a false positive. Police officers will generally try to get you to “blow” into the PBT machine. Be careful where the officer advises you that it “does not count.” The old adage that anything you say or do will be used against you applies in this situation. It gives the officer another fact to support probable cause and more evidence against you for prosecution.

Before you refuse to take the test, you must understand the consequences. Understand that a refusal of the breath test will result in mandatory administrative license suspension (ALS) from the BMV. For a first refusal offense in the state of Ohio, the length would be one year. After a certain amount of time generally known as “hard time” you would be able to get driving privileges. The driving privilege parameters have been greatly expanded. However, “party plates” maybe required as well as license interlock ignition. You can appeal the ALS under RC 4511.197 within certain time frames. If you are convicted of the OVI understand your driver license will be suspended anyways.

Refusing the test at the police station also has justifications. One reason to refuse is the lack of confidence in the accuracy and reliability of the breath alcohol testing devices used in the state of Ohio. The Intoxilyzer 8000 was sanctioned by the Ohio Department of Health. This machine has been scientifically shown to be subject to many issues. Its admissibility can go either way in a court of law. Many suppression motions surround the machine. The BAC Datamaster can be reliable but must be calibrated correctly. It too can be challenged in the courts. You may want a more accurate test performed such as a blood test. Ohio law however states that the arresting officer has the sole authority to determine which test will be requested of you.

On the other hand, there are reasons to submit to a breath alcohol test. Most importantly, if you truly consumed a small number of alcoholic beverages or haven’t consumed any at all, then cooperation is warranted. That could even work in your favor where a chemical test becomes exculpatory evidence indicating non-impairment and supporting your innocence. In addition, you should consider that some courts punish refusals more harshly than individuals who cooperate by taking the test. It is generally a good idea to cooperate with law enforcement in an effort to mitigate your sentencing in the event you plead or are found guilty. A judge might consider reductions in close test cases where perhaps you only tested slightly above the legal limit. While its not guaranteed, it is certainly worth considering. This potential leniency would not be necessarily true in refusal cases where officers still provide strong circumstantial evidence of impairment. Thus, submitting to a breath alcohol test might put you in a more advantageous position in defense of your case. It gives you a chance to be remorseful and to accept responsibility.

A refusal, however, will more severely impact you if you have had prior OVI convictions in the last 20 years. A refusal under RC 4511.19(A)(2), will double the mandatory minimum jail term that you will face in your case. Finally, you have a safeguard against an apparent inflated breath alcohol test. It is your right to an independent blood test at your own expense. It can however be challenging. It can be difficult to obtain the test from the hospital or other medical facilities late at night or early in the morning. The police department have policy and procedures in place to prevent you from timely getting the blood test. The inability to post bond till the following morning or holding you in jail till the morning are just a few of the ways the police preclude you from that independent blood test.


As you can see, the decision to test or refuse has many issues to consider. It is very complicated. Having to make that decision after being stopped late at night or early in the morning after an arrest is impossible is challenging. You are apprehensive, stressed, and nervous as you attempt to deal with the arresting officer. Hopefully some of the things we’ve outlined here help you by providing general knowledge of the consequences of refusing the test or cooperating and submitted to one.

Our law firm can help you through the difficult challenge on an OVI. If you find yourself charged with an OVI. Please do not hesitate to call us at 1-900-0955. Whatever you decide at the time of arrest, we will put forth your best defense and work vigorously towards the resolution of your case.


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Sawan & Sawan is an Ohio based criminal defense law firm with Toledo DUI lawyers licensed to practice law in the State of Ohio. If you have been charged with a DUI and would like to speak further about your specific legal matter, call Sawan & Sawan today at 419-900-0955 to schedule a free consultation.