One of the most frequently asked question posed to OVI/DUI attorneys is if you refuse a breathalyzer test, what happens? If you are pulled over for an OVI/DUI, you will most likely be given a breathalyzer test. If you refuse to take the test, a number of legal consequences can happen.
Can You Refuse a Breathalyzer Test in Ohio?
Many drivers wonder “Can I refuse a breathalyzer test?” Even though there are consequences for doing so, you can refuse a breathalyzer test. Its important to understand that in Ohio, this can affect your OVI case and your license. First and foremost, just because you refused to take the breathalyzer test does not mean you won’t be charged with an OVI. Refusing a breathalyzer in Ohio does not guarantee you won’t be charged and it can result in several key legal consequences outlined below.
When dealing with Ohio DUI/OVI charges, there are two things typically done by police officers. If you refuse to take a breathalyzer test, the officer will usually fall back on what is referred to as the “(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, attitude or other observations. This circumstantial evidence can still form the basis of an OVI charge.
Refusing to take the breathalyzer test does not shield you from prosecution. 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.
Penalties for Refusing the Breathalyzer Test in Ohio
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 may be able to get driving privileges. The driving privilege parameters have been greatly expanded. However, “party plates” may be required as well as license interlock ignition depending on the facts of the case and whether you have a history of OVI cases or alcohol offenses. You can appeal the ALS under RC 4511.197 within certain time frames but it can be difficult to be granted an ALS appeal. If you are convicted of the OVI, your driver license will be suspended anyways.
There can be additional consequences or penalties for refusing to submit to a breathalyzer test in Ohio. A refusal will more severely impact you if you have had prior OVI convictions in the last 20 years. For example, a refusal under RC 4511.19(A)(2), will double the mandatory minimum jail term that you will face in your case.
Contact a Lawyer if You've Been Charged with an OVI in Ohio
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 challenging. You are bound to be apprehensive, stressed, and nervous as you attempt to deal with the arresting officer. If you were charged with an OVI, our law firm can help you through the difficult challenges. Please do not hesitate to call us at 419-900-0955. Whatever you decide at the time of arrest regarding the breathalyzer test, we will put forth your best defense and work vigorously towards the resolution of your case.
Dennis P. Sawan
