How Are DUI Charges and Implied Consent Tied Together?

What is Implied Consent?

Implied consent is consent that is not expressly given by the person, but rather it is implied consent due to an understanding of prior agreement or might be granted by one’s actions surrounding the circumstances. When you applied for your driver’s license, you gave consent in future situations that require an officer of the law to perform a field sobriety or chemical test.  In practice, this law states that you have given consent already by agreeing to your respective state’s terms and conditions of obtaining your license. At this point, if an officer suspects you are under the influence there is practically no way out without major consequences. As alluded to before, you are agreeing to the “terms and conditions” of being a licensed driver for your respective state. It is like the box you check for agreeing to sign up for a certain service saying that you read their underlying conditions.

When you get your driver’s license, you are wanting to enjoy the privilege of driving legally, but you have to agree to oblige to certain laws and regulations first. The main one is (pre)consenting that you will provide a breath test or blood or urine sample if you are suspected of driving under the influence.

Refusing to “consent” doesn’t really exist in this case and can lead to some major issues such as:

• Considerable consequences that vary from state to state.
• A potential blood sample may be taken if you are unconscious and injured and are suspected of DUI.
• Typically, blood, breath, and urine samples can count as a form of search and seizure and mandate a warrant. In most cases, though, police do not require a warrant for an order to provide a sample

What Tests Does Implied Consent Apply To?

The implied consent rule only applies to chemical tests after you have been arrested for driving under the influence. If you have been pulled over and have not been arrested yet, and the officer asks you to take a preliminary breath test (PBT) test, you can always refuse without consequence.

In Ohio, rather, you can refuse to give blood, breath or urine if you are pulled over/arrested for an OVI (operating a vehicle under the influence of alcohol or drugs), but not without consequence. Ohio’s implied consent law states that if you are lawfully arrested by an officer of the law who has reason to believe that you have been driving under the influence, then you consent to take a chemical test of either your breath, blood, or urine to determine your blood alcohol content, also known as BAC. The test has to be taken within two hours of driving and the officer has the option to choose the test you will take. If you do not submit to a chemical test you face administrative penalties and an enhancement of the OVI statute.

Be careful in Ohio because you could be arrested for an OVI even if you are not actually operating the vehicle. You only have to be in “physical control” of the vehicle, which in Ohio, could be being behind the wheel even if the keys are not in the ignition.

What Are Possible Penalties for Refusing a Breath, Blood or Urine Test?

Upon being pulled over, you can NOT refuse a test without facing other serious consequences. Under the law of implied consent, the officer is not required to tell you the penalties that will ensue. There are harsh implications for refusing to take a test. The first offense will result in an administrative license suspension of 1 year, a 2nd offense (within 6 years) will result in a 2-year suspension, 3rd offense (within 6 years) will result in a 3-year suspension, and 4th offense (within 6 years) will result in a 5-year suspension. In addition, if you have had prior OVI convictions, the state can and will count those against you by increasing your suspension period. To add insult to injury, you are required to pay a $475 fine to retrieve your license after your term is up.

Can an Officer Make You Take a Chemical Test In A DUI Charge?

In the case of you having been convicted of an OVI two or more times within six years of your last offense, a law enforcement officer can use any means, within reason, to have you take any chemical test and is required to inform you before asking you to take it. The means being “reasonable” completely depends on the specific situation. An example of acceptable restraint would be an officer holding a driver’s arms down by the wrists as for a nurse to draw blood. The case of State v. Slates, 2011 Ohio 295 (2011) shows you a real application of the prior example. Once you have submitted to a blood test, you have the right for another medical professional of your choice take a separate test. The officer should tell this to you, as well.

While there are evidential reasons to refuse to take a blood, breath, or urine test when you are arrested in Ohio you still face consequences for the refusal. Even though the penalty for a first OVI offense in Ohio is steep, you will face up to three days in jail, a fine of at least $375, and your license will be suspended for any time between one year and three years; you cannot escape fully the ramifications of an OVI by refusing a test. In Ohio, the state does not have proof of your blood alcohol being over the legal limit, you still could be found guilty of an OVI. As long as prosecutors can prove that you were appreciably or noticeably impaired at the time you were operating your motor vehicle, you still could be convicted. In fact, prosecutors can use your refusal against you. They could argue that you refused the test because you knew that you were intoxicated and guilty of driving under the influence.

If you have any questions about implied consent laws in Ohio or have been charged with a DUI, please contact us today. We will fight for your rights in your Ohio DUI charge.

ATTORNEY KELLY FARRISH

Kelly Farrish always knew he wanted to be an attorney, but he the path he took to get there isn’t like most. He served five years in the United States Air Force and did two voluntary years in South Vietnam. When he returned to Cincinnati, he worked the midnight shift as a technician at Cincinnati Bell, all the while attending college full time year round for three years. He graduated Cum Laude from the University of Cincinnati. [ ATTORNEY BIO ]