Should I Refuse a Breathalyzer Test?

Like many questions asked of lawyers, the answer to the question “Should I refuse to take a Breathalyzer test?” is that it depends.

This may not be the most satisfying answer, but it’s the one that any good, responsible lawyer will tell you. Be very skeptical of anyone that gives a concrete answer to this question without knowing your unique situation!

Keep reading to find out the factors that should influence your decision to take a Breathalyzer or not.

Consequences for Refusal

Refusing to take a Breathalyzer or blood alcohol content (BAC) test comes with consequences. That’s because Ohio is an “implied consent” state. Ohio law states:

“Any person who operates a vehicle, streetcar, or trackless trolley upon a highway or any public or private property used by the public for vehicular travel or parking within this state or who is in physical control of a vehicle, streetcar, or trackless trolley shall be deemed to have given consent to a chemical test or tests of the person’s whole blood, blood serum or plasma, breath, or urine to determine the alcohol, drug of abuse, controlled substance, metabolite of a controlled substance, or combination content of the person’s whole blood, blood serum or plasma, breath, or urine if arrested for a violation of division…” (Emphasis ours)

Essentially, this means that—by getting a driver’s license and driving down the road—you’ve already said “yes” to a Breathalyzer, or other blood alcohol test. Saying “no” is a crime punishable by law.

There can be serious penalties for refusing to take a Breathalyzer or blood test:

• 1st refusal: Automatic one-year license suspension
• 2nd refusal: Automatic two-year license suspension
• 3rd refusal: Automatic three-year license suspension
• License re-instatement fee of several hundred dollars at the end of suspension

If you have any previous OVI convictions on your record and refuse a Breathalyzer, the court will likely increase the length of time of your suspension.

These penalties can apply even if you are not convicted of an OVI. This is a very important note: many drivers think that, by refusing to take the Breathalyzer, they are avoiding all penalties by avoiding an OVI conviction; however, they may still end up with penalties from the refusal.

If you do refuse a BAC test, know that all is not lost! You are allowed to appeal an automatic license suspension for a number of reasons. An OVI attorney can help you fight the penalties of Breathalyzer refusal.                                                                                         

Breathalyzer or Not: You Decide

With all that said, why would you want to refuse to take a chemical test? One reason is that, if you take the test and your results show that your BAC is more than 0.17, the penalties and charges you face will be more severe. Another is that it may be more difficult for prosecutors to build a case against you if you refuse to take all field sobriety and chemical tests.

It is up to you to decide whether or not submitting to a BAC test is in your best interests.

If you are pulled over under suspicion of drunk driving, the best thing you can do is to calmly cooperate while asserting your rights. Besides giving the officer your identifying information, you are not required to answer such questions as, “Have you been drinking tonight?”, “Where are you going?”, or “Where are you coming from?”

These types of questions are designed to get you to incriminate yourself. The law enforcement officer is looking out for answers like, “Yes, I had a few beers earlier” or “I just came from the bar up the road.”

Instead of answering, you may politely tell the officer that you will not answer any more questions without the advice of an attorney. Remember that, while the officer may seem to be just chatting with you, he or she is actually looking for evidence to use against you.

You also do not have to submit to field sobriety tests (such as the walk-the-line or pen tests). It is not a crime to refuse to take them, unlike refusing a Breathalyzer. You won’t face any additional penalties for saying “no” to field sobriety tests. (We talk more about field sobriety tests in a previous blog post.)

After an OVI Arrest

Whatever you decide, know that Casper & Casper is here to help you fight an OVI charge and license suspension.

We are a team of experienced and understanding OVI defense attorneys in Middletown, Ohio who know what it takes to successfully overcome OVI-related charges and penalties.

We’ll work with you to develop a plan for your specific case. Depending on your unique situation, we will advocate to appeal your automatic license suspension or restore driving privileges lost from an over-the-limit test result. We will also work to avoid an OVI conviction or lessen the penalties you face.

If you are facing OVI charges, contact Casper & Casper today for a free consultation. During this consultation, we will listen to you, let you know your options, and help you determine the best path to take to fight your charges.

 

Sources:

• Ohio Bar Association: here and here
• NOLO
• Ohio Revised Code: here and here
• Photo Credit: West Midlands Police Flickr via Compfight cc