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DUI Defense

Do I have to agree to a breathalyzer test in Ohio?

By July 21, 2021No Comments

No one likes getting pulled over by the police, especially if the police start asking about how much you’ve been drinking. Once they start asking you to take a breathalyzer test, things can start to get stressful.

Whether you’ve had anything to drink or not, it can be tempting to refuse to take the test. But depending on your circumstances, refusing a chemical sobriety test can potentially have serious consequences.

Max Hiltner is an experienced criminal defense attorney in Ohio with a proven track record of defending clients from DUIs (technically known in Ohio as OVI, or operating a vehicle under the influence).

Today, Max takes a look at Ohio’s “implied consent” law and when you’re legally required to submit to a chemical sobriety test.

Implied consent

The Fourth Amendment entitles every American the right to be free of unreasonable search and seizure. Generally, courts have interpreted this to mean that you have the right to refuse a chemical sobriety test at a traffic stop.

However, some states have passed “implied consent” laws. These laws state that anyone who gets behind the wheel of a car has already given their consent to be tested for a DUI, under certain circumstances.

Section 4511.191 of the Ohio Revised Code is Ohio’s implied consent law. According to the law, any person who operates a vehicle “shall be deemed to have given consent” to a chemical sobriety test, if they have been arrested for a OVI.

What this means is that, if you are under arrest, you are legally required to submit to a chemical sobriety test, and refusing can mean legal consequences.

Under this law, chemical sobriety tests can include any of the following:

  • blood tests
  • blood serum or plasma tests
  • breath tests
  • urine tests

Consequences of refusing a chemical test

In order to place you under arrest for OVI, an officer has to have probable cause, which means they have to believe more likely than not (51% or more) that you’re driving while under the influence.

Here are the consequences you could face if you refuse to take a chemical sobriety test, depending on when the refusal happens:

  • Before arrest: There are no legal consequences for refusing a roadside sobriety test or portable breath test.
  • After arrest: If you’re under arrest for OVI and you refuse to take a chemical/breath test, you could have your license suspended for up to 1 year, regardless of whether you’re convicted for OVI. That suspension could be longer if you have a prior refusal within the last 20 years or OVI conviction on your record in the last 10 years.

It’s important to understand that, even if you refuse to take a chemical test, an officer might still be able to force you to take a test by getting a warrant from a judge.

However, if you blow and blow over the legal limit, it is much more likely that you’ll be convicted of an OVI.  Even if you blow under the legal limit, an officer can still charge you with an OVI and the State can argue that even though you weren’t “over the limit per se”, you were still “impaired”.

Contact an Ohio DUI defense attorney

If you’re pulled over for OVI/DUI in Ohio, you could be facing serious charges. But with a defense attorney who knows their way around the legal system, you can get your penalties reduced, or in some cases, even have your charges dropped.

Contact Hiltner Trial Lawyers today to schedule a free consultation and talk about your case.