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Defending against a Blood Test “Refusal” Charge In Ohio

Blood Test “Refusal” Charge in Ohio

When a person is arrested for operating a vehicle while intoxicated (OVI), he or she will be asked to take a breathalyzer test or provide a blood or urine sample. Ohio has an “implied consent law” that states if you are arrested for an OVI then you consent to a chemical testing of your blood, breath, or urine. Once you get your license, you have consented to these chemical tests. An officer is entitled to use reasonable means to force you to comply with the chemical testing.

If a person has had an arrest for an OVI and was convicted within the last 20 years then it is a crime for he or she to refuse a blood, breath, or urine test.

The officer(s) will ask you to cooperate. Don’t be afraid of telling the officers that you do not want to take the test because you question the reliability. But you need to know there are no penalties for refusing a roadside breathalyzer test. Unless the officer’s squad car has an approved portable machine and that is rarely the case. There is no suspension or penalty for refusing the roadside Breathalyzer test unless the arresting officer’s squad car is equipped with a portable machine approved by the Director of Health (which is rarely the case). You are only required by law to submit to the chemical testing once you are arrested and have been taken into custody.

But Isn’t it My Right to Refuse a Blood Test?

Yes, it is. But by refusing you will face consequences. The law recognizes driving as a privilege, not a right and as such it may be taken away. If you do refuse the test there are consequences you will face, such penalties could include:

  • losing your license for one year if it is your first refusal;
  • if it is your second refusal within six years then you will lose your license for two years; and
  • three years for your third refusal within six years.
  • After that, you will lose your license for five years.

Then once your term is served you will still have to pay a fine of $475 to get your license back.

If a person has been convicted two or more times of an OVI within six years then under Ohio law an officer may force you to take any chemical test by any reasonable means necessary.

It actually even makes the state’s case against you easier if you do refuse. If they do not have the test, prosecutors are only required to prove that you were driving and impaired. The extent of your impartment does not matter. Juries are even instructed if you refuse a test that they may assume you were over the legal limit.

Could Refusing to Take The Test Be Better Than Getting An OVI?

There is no clear-cut answer here. It could help you. But, it could also hurt you. Refusing a test does not waive the consequences of an OVI conviction. It really depends on the other evidence that the state has against you. The state could use your refusal against you by claiming you only refused because you knew your BAC was above the legal limit. The state could also have other evidence against you proving that BAC was above the legal limit. Basically, by refusing the chemical testing, your sentence will likely be greater than if you had just complied in the first place.

If you are convicted of an OVI in Ohio, for the first time, you face up to three days in jail, a minimum of $375 in fines, and your license will be suspended for a minimum of six months out possibility up to three years. The sentence will be added on to for your refusal charge as well.

Once you have been convicted of a refusal then you have 30 days to appeal the decision.

Defenses To A Refusal Charge.

These cases are incredibly difficult to beat, but it can be done. The top three defenses are:

  1. Improper Hearing Notice— Due process requires people to have notice of a hearing against them and that they have a chance to challenge the alleged charges. Often times the officer will write all the hearing information on a pink temporary license the very night of the arrest. Then the DMV will also send them a packet. The notice is contained within a checkbox on a front page of the form. The proper box must be checked to give correct and proper notice of the hearing.
  2. Improper Admonishment— If you refuse to consent to the test the officer must inform you that your license will be suspended or revoked upon doing so. The state has the burden of proving that the officer made you aware of this. If the officer never informed you of that then your testimony is a key defense. Even if the officer told you that your license could be suspended or revoked, instead of would be, that is still improper admonishment.
  3. Officer-Induced Confusion— Often times officers try to explain things in plain English, which can worsen matters. If you did not understand something like your right to have an attorney because the officer confused then this is a good defense.