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Defending Against a DUI Breath Test Refusal Charge in Ohio

Breath Tests & Ohio DUI Law

You have the right to refuse a DUI breath test in Ohio before you have been arrested. Law enforcement officers will often attempt to have you take a portable breath test, or PBT, which the law enforcement officer will use to determine if there is probable cause to arrest you for driving under the influence. The results from the portable breath test is not admissible in a trial to prove that you were over the legal limit because of its unreliability. Refusing this pre-arrest breath test can deprive police of their best evidence showing probable cause to arrest you and thus be able to force you to submit to tests.

Can You Refuse the Breath Test Without Penalty?

You can refuse the pre-arrest DUI breath test, without facing automatic suspension of your driver’s license. You will, however, face consequences if you refuse to submit to an alcohol or drug testing after you are arrested and taken into custody by the law enforcement officer for driving under the influence.

What is the Penalty For Refusing A Breath Test After Being Arrested?

Ohio, like most states, recognizes an implied consent to submit to DUI tests by your affirmative action of getting a driver’s license and driving in Ohio. Ohio’s implied consent law can be found under Ohio Revised Code section 4511.191. As a result, if you refuse a DUI breath test after being arrested when one is ordered by a law enforcement officer, your license will be automatically suspended and will double the time you must wait in order to receive limited driving privileges for purposes such as driving to and from school or work, and the penalties for your DUI offense will likely be stiffer.

Furthermore, under O.R.C. section 4511.191(A)(5)(b), if you have been convicted of two or more times within six years of your last offense and you refuse to submit to a chemical test upon a request by law enforcement officer after you have been arrested, the law enforcement officer who made the request may employ whatever reasonable means are necessary to ensure that you submit to a chemical test of your whole blood or blood serum or plasma. Any law enforcement officer acting according to this provision who “ensures” that you submit to the chemical test, is protected by this section from any civil or criminal liability based upon a claim for assault and battery or any other claim for the acts, unless the officer acted with malicious purpose, in bad faith, or in a wanton or reckless manner. The law enforcement officer must notify you that he may employ such measures as necessary to require you to submit to the test if you fall under this category, but after notifying you and failing to gain your cooperation, the officer can employ whatever means are deemed appropriate for your particular situation. One example of an acceptable restraint is an officer holding your arms down by the wrists, so a nurse can draw blood.

In addition, if you have prior DUI arrests in Ohio, you could also face increased penalties for this refusal. If this is your first refusal, you could lose your driver’s license for one year, for two years for your second refusal within six years, and for three years for your third refusal within six years. Any subsequent refusal will cause a license suspension for five years. The state will also count any prior OVI/DUI convictions against you by increasing the time of your suspension for refusal. Finally, you will also have to pay a $475 reinstatement fee to get your driver’s license back after you finish the term of your suspension. If you were charged with your second DUI in six years and refused to submit to the breath or other tests, you could also receive an additional 10 days in jail for refusing to submit.

Does It Make Sense To Refuse A Breath Test?

While refusing the breath test results in an automatic suspension of your driver’s license for at least a year, it may still be the advisable choice if you have been drinking when you are stopped by the law enforcement officer. By refusing to submit to the breath test, you ultimately deny the prosecution easy evidence to show that you were driving under the influence of alcohol because the breath test shows that your blood alcohol concentration, or BAC, was over the legal limit of .08%.

However, while it could potentially be easier for your DUI defense attorney to argue that you were not driving under the influence without any chemical test results indicating otherwise, the prosecution can also argue to the court that your refusal to submit to the breath test, knowing that such refusal would result in the automatic suspension of your driver’s license for at least a year, is a sign that you were guilty and knew you were driving under the influence of alcohol and knew that your breath test results would show that your BAC was over the legal limit.