The lawyers at Palecek, McIlvaine, Hoffmann, & Morse Co., L.P.A. are committed to handling all your criminal and traffic legal needs in Wadsworth, Medina, and surrounding counties. Anytime you are stopped by the police under suspicion of driving under the influence of alcohol (DUI, OVI, DWI), you are typically faced with a difficult decision of whether to take the Breathalyzer or not. Here are some thoughts.
First and foremost, if you have a commercial driver's license, it is usually best to submit to a test, since your license may be suspended for not doing so. This is true whether or not you are actually driving a commercial vehicle or are ultimately convicted of OVI.
The second most important factor to consider is whether or not you have been convicted of a "drunk driving" offense within the past 20 years. If so, you can be charged with a separate crime if you refuse to be tested, and you can be subjected to a mandatory period of incarceration if you are found guilty of the OVI offense.
Another important factor is whether or not you were "operating" the vehicle (causing it to move). If you were not "operating" the vehicle, taking the test likely will not result in a license suspension even if your BAC is over the legal limit. However, refusing the test will result in an administrative license suspension of one year.
You should understand that assuming this is your first offense, if you submit to a test and your BAC is at or above the legal limit (.08), you will not be eligible for limited privileges during the first 15 days following your arrest. If you refuse the test, no limited privileges can be granted during the first 30 days after your arrest. Also, some courts do not grant any limited privileges to an individual who refuses a test unless and until that individual pleads guilty to an OVI offense.
Additional factors you might consider when deciding whether or not to submit to a test are your weight, type and amount of alcohol consumed, duration of alcohol consumption and the amount of time that has passed since your last drink.
Although you should consider the duration of the Administrative License Suspension (90 days for testing at or above the legal limit and one year for a refusal), you also must consider that, if the test result reveals a BAC at or above the legal limit, you will be presumed guilty, and evidence of your BAC will be used against you at trial. Moreover, depending on your BAC level, you could be facing mandatory incarceration, and you may be required to have special OVI plates on any vehicle you drive while your license is suspended.
Can an officer force me to submit to a BAC test?
No, but the court can. In some jurisdictions, the arresting officer will ask a judge to issue a warrant to draw blood. If the judge signs the warrant, your blood can then be legally drawn, against your will, and submitted for testing. Such a practice is becoming more common in Ohio, although in most jurisdictions, warrants are used only when someone is injured or killed in an alcohol-related accident.
Should I take the Field Sobriety Tests?
While there are significant ramifications for refusing to take the Breathalyzer, field sobriety tests (one-leg stand, walk and turn, and HGN or pen test) are not required by law. If an officer asks you to take these tests you are well within your right to refuse. Simply inform the officer that you do not wish to perform any field sobriety test, and unless you are under arrest, you wish to go home. By taking the FST's you are only helping the police prove their case.
Please remember you should never rely on the information contained in this webpage in
place of consulting with a qualified criminal defense lawyer.
© 2006 Ohio State Bar Association. All rights reserved. Used with permission. Please note: The Ohio State Bar Association periodically updates Law-Facts Pamphlets. For updated or additional information, please visit http://www.ohiobar.org/, click on "public" and then "Law-Facts" pamphlets. Ohio State Bar Association P.O. Box 16562, Columbus, OH 43216-6562. (800)282-6556 or (614) 487-2050. Funding from the Ohio State Bar Foundation.
