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What Does Refusal To Blow Mean?

When an individual is suspected of Driving Under the Influence (DUI) a law enforcement officer may have you participate in field investigation, which may include you participating in a portable breathalyzer test.  A portable breathalyzer test (PBT) can be refused without consequences, the station breath test, if refused, will cause enhancements to come into play. At the station is really where the decision of whether to submit to the test or to refuse will take place.  You should be aware of the possibilities that come from each of these choices. It should be known that you do not have to take the breathalyzer test, the officer must read you your rights and the consequences of the refusal. As a citizen of Ohio, you should be aware of the pros and cons of refusing to submit to the breathalyzer test, what are some defenses if you were to blow over the limit, and whether you should cooperate with law enforcement.

What Is The “Pro” Of Refusing To Blow?

It should first be noted that it is not a crime to refuse a breathalyzer test. CDL drivers, commercial driver’s licenses drivers, must take the test. Most importantly if you do not participate in the breathalyzer test then you will not be giving the Government a “per se” DUI charge. This is where it is evident that your alcohol level was over the .08 legal limit, or even worse the .17 where there are heavier penalties and possibly sentence enhancements. With the lack of precise measuring the prosecution is most likely going to have to work harder to get a conviction because it is easily seen that you are over the limit. However, you could still be arrested and charged because all the police officer needs is probable cause that you are is intoxicated while driving. But again, this makes it harder for a conviction because the police officer is going to have to articulate that the person was swerving, had slurred speech, could not stand, and so on. As compared to “they blew a .09, thus they were intoxicated.” Because of this, an Ohio DUI Defense Attorney will be able to make a case for the client since it is not so black and white. When you are alleged to have been drinking and driving you want the best possible outcome for your case, as does your DUI defense attorney. When there is less evidence against a client the professional DUI attorney will be able to build a stronger case, which enables him to earn a better outcome for the client.

What Is The “Con” Of Refusing To Blow?

There are a couple of downsides if you were to choose not to patriciate in the breathalyzer test. The main one being a loss of your driver’s license for one year and a $475 reinstatement fee. This is longer than if you were to fail the test where a driver’s license would be suspended for 90 days. Though it is not a crime to refuse to blow, this is called an administrative license suspension.

In Ohio, you automatically give implied consent to this when you receive your driver’s license. Also, it is possible the police officer tests an individual’s alcohol level another way, usually by drawing blood or by a urine test. Blood tests do not require a judge or search warrant and non-consensual blood tests may occur.

What Defenses Will I Have If I Were To Blow?

An experienced Ohio criminal defense attorney will have some defense that he or she can possibly apply to your case depending on your specific situation and facts. A common defense would be an “operator error.” First, if the operator is not certified or licensed, or it has expired the test would be deemed inadmissible in court which would be a great help to your case. Also, an operator error could cover when the officer administering the test has failed to include the value of the simulator solution used in the machine. Moreover, there is a possibility of the breathalyzer machine has an error. These are machines that have to be finely tuned and regularly checked. It is not hard for one of these machines to be improperly calibrated. With our experienced Ohio Criminal Defense Attorneys, we know how to make sure the breathalyzer machine was calibrated correctly.

In addition, mouth alcohol can cause an inaccurate reading from the breathalyzer machine. Mouth alcohol is residual alcohol that is located in the mouth. The breathalyzer machine is only supposed to pick up alcohol in the lungs because that is an accurate reading of how intoxicated you really are. Mouth alcohol can be caused by mouthwash, medications, cough drops, dental work, and possibly piercings in the mouth. Lastly, even a low carb diet could provide the breathalyzer with a false result. This is because your body has a different chemical makeup while on this diet and the reaction could provide a false alcohol to the machine. Therefore, an experienced Ohio Criminal Defense Attorney can help you by finding an applicable defense to your situation.

Would I Be Better For Me To “Cooperate” With The Law Enforcement Officer?

It is understandable that a person would feel uncomfortable telling a law enforcement officer “no.” However, you have to make the best decision for yourself. If that is refusing to blow then so be it. You are acting within your rights. In addition, police officers cannot “cut deals” with you. When they say that this will make it easier on you this is not necessarily true. But you should always be respectful to the police officer and act within your rights.

Please contact your Ohio DUI Attorney and discuss the particulars of your case.