Recently in DUI/OVI blood/breath/urine tests Category

November 23, 2013

DRIVER'S LICENSE SUSPENDED FOR INABILITY TO URINATE ON CUE

Imagine that you are arrested for DUI (called OVI in Ohio), and the officer takes you to a police station to take a urine test. You want to comply, because you're sure the test will prove you are under the legal limit, but you don't need to go. In fact, you can't go. You drink a bunch of water and wait a while, but you still can't go. The officer then says you refused the urine test, so your driver's license is suspended for one year.

Urination handstand.jpgThat's what happened in State v. Brown, a case decided last week in an Ohio Court of Appeals. In that case, Brown first took a breath test, and the result was 0.00. The officer likely suspected that Brown was under the influence of a drug other than alcohol, so the officer asked Brown to submit a urine sample. Brown agreed, drank several glasses of water, and attempted to provide a urine specimen four or five times but was unable. The officer seized Brown's license and placed him under a one-year driver's license suspension for 'refusing' the urine test.

Officers are authorized to suspend a driver's license, on behalf of the Ohio Bureau of Motor Vehicles, if a driver is arrested for DUI/OVI and refuses to submit to a breath/blood/urine test. A driver's license can also be suspended if a driver submits to the test and the result is over the legal limit. These suspensions are called 'Administrative License Suspensions' (A.L.S.) and are separate from the sentence that is imposed if the driver is found guilty of DUI/OVI. The A.L.S. can be appealed, and the trial court has the authority to terminate the A.L.S.

Brown did appeal his A.L.S., and the trial court held a hearing on his appeal. For this type of hearing, the burden is on the defendant to prove he did not refuse the test. At the hearing, the arresting officer acknowledged that Brown apparently "was not refusing the urine specimen", and "it was very apparent to me that he was trying but just could not produce." Nevertheless, the trial court concluded that Brown failed to prove he did not refuse the test, so the one-year suspension remained.

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October 19, 2013

MARGIN OF ERROR IN OHIO DUI/OVI ALCOHOL TESTS

From your bathroom scale to a police officer's laser gun, every measurement device has a margin of error. For a device to be considered reliable, the margin of error must be known (and should be small!). In a recent Ohio DUI / OVI case, the court decided the admissibility of test results from a device with an unknown margin of error.

The case is State v. Butler. Gas chromatograph.jpgA police officer arrested Butler for DUI / OVI, and Butler provided a urine sample for an alcohol test. The urine sample was tested on a gas chromatograph (pictured) at the county crime lab, and the result was .113. For the defendant to be found guilty of DUI / OVI 'per se' in Ohio, the prosecutor has to prove the defendant's urine alcohol concentration was at or over .110. That means Butler's alcohol level was four one-thousandths of one gram too high, so the accuracy of the test result is critical.


Butler's attorney filed a motion to suppress the urine test based on its lack of scientific reliability, and the attorney asked the crime lab analyst a good question: What is the scientific accuracy of the urine test? The lab analyst said, "There is no method in place to calculate any type of uncertainty of the results." The analyst went on to testify that it is possible to determine the "degree of uncertainty" in the urine test results, but the crime lab just doesn't do it.

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August 31, 2013

STATE v. LANCASTER MAY CHANGE INTERPRETATION OF OHIO BREATH TESTING LAW

Intoxilyzer 8000 Declared Unreliable In Ohio DUI/OVI Case
This blog has discussed Intoxilyzer 8000 litigation in many previous posts. One of those posts (November 18, 2012) mentioned the case of State v. Lancaster in the Marietta Municipal Court. I was asked to help with that litigation as counsel for Lancaster. Like many of the I-8000 cases throughout Ohio, the Lancaster case involves the reliability of the I-8000. Unlike most of the other cases, however, the Lancaster case includes testimony of expert witnesses for the prosecution and defense. After five days of testimony, the verdict is in, and the breath test is out! The decision has already been appealed and is staged to possibly change the interpretation of breath-testing law in Ohio.

The Intoxilyzer 8000 And Ohio DUI/OVI Cases
In 2009, the Ohio Department of Health (ODH) purchased about 700 Intoxilyzer 8000s for a cost of approximately $6.5 million. The transaction was facilitated by the head of the ODH Bureau of Alcohol and Drug Testing, Dean Ward. Soon thereafter, Ward began working for the I-8000 manufacturer, C.M.I. Use of the machines began in 2010 and gradually increased.

Intoxilyzer 8000 I Make Mistakes.jpg
As law enforcement increasingly used the machines, defense attorneys increasingly challenged their reliability. In State v. Gerome, an Athens County judge heard expert testimony and found the I-8000 is prone to errors. The judge concluded that evidence from the I-8000 is admissible, but defendants may challenge the test results based on circumstances that may make the results inaccurate.

Courts throughout Ohio have ruled that I-8000 test results are not admissible, but most of those rulings have been overturned on appeal. For example, in State v. Reid, a Circleville judge excluded evidence from the I-8000 because the prosecution did not demonstrate that the I-8000 is accurate and reliable. Reid was overturned by the Fourth District Court of Appeals, which reasoned that State v. Vega prohibits a general attack on the reliability of breath testing instruments, including the I-8000.

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July 13, 2013

COURT RESCUES INTOXILYZER 800 FOR USE IN OHIO DUI/OVI CASES

But for a technical legal issue that may only be interesting to an Ohio DUI/OVI lawyer, the case of State v. McMahon would be pretty generic. An officer pulled him over for speeding, noticed the odor of alcohol, administered field sobriety tests, arrested him, gave him a breath test on an Intoxilyzer 8000, and charged him with O.V.I. McMahon filed a motion to suppress the results of the breath test, claiming the Department of Health was required to make rules for obtaining 'operator access cards' (to operate the I-8000) and never did. The trial court agreed with McMahon and threw out the breath test.

Thumbnail image for Intoxilyer 8000 photo with sign saying do not use.jpgThe history of Ohio regulations regarding breath testing shed light on the significance of this issue. Before the regulations were changed in 2009, Ohio had two approved breath-testing machines; the BAC Datamaster and the Intoxilyzer 5000. The regulations contained requirements for obtaining a 'permit' to operate those machines. In 2009, the regulations were changed to add the Intoxilyzer 8000 to the category of approved machines. The regulations for the Intoxiyzer 8000 require an 'operator access card' but do not contain requirements for obtaining an access card.

In State v. McMahon, the prosecution appealed the trial court's ruling to the First District Court Of Appeals. The reasoning of the appellate court was essentially this: (1) the breath test must be conducted by a person with an operator permit; (2) the Department of Health is responsible for issuing operator permits to qualified persons; (3) the qualifications to obtain an operator permit are listed in section 3701-53-07 of the Ohio Administrative Code; and (3) an operator access card is a type of permit. The Court relied on the testimony of Mary Martin, head of the Department of Health's Alcohol and Drug Testing program, who testified that an operator access card is a type of permit. Consequently, the Court of Appeals reversed the trial court's ruling, and the breath test is now admissible in McMahon's case.

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April 20, 2013

U.S. SUPREME COURT DECISION RAISES QUESTIONS ABOUT BLOOD TESTS IN OHIO D.U.I./O.V.I. CASES

In a previous post, this blog questioned whether police should be able to draw blood against your will without a search warrant. At that time, oral arguments had recently been held in the case of Missouri v. McNeely. A few days ago, the United States Supreme Court issued a decision in the McNeely case. Based on that decision, the Constitutionality of the law for forced blood tests in Ohio O.V.I. cases is questionable.

In McNeely, the defendant was arrested for D.U.I. and taken to a hospital. When McNeely declined to give a blood sample, his blood was drawn without his consent and without a warrant. The trial judge suppressed the blood test, and the case was appealed through the Missouri state courts to the United States Supreme Court. The Court framed the issue as follows: "The question presented here is whether the natural metabolization of alcohol in the bloodstream presents a per se exigency that justifies an exception to the Fourth Amendment's warrant requirement for nonconsensual blood testing in all drunk-driving cases."

The Supreme Court analyzed the search and seizure issue. A blood draw is invasion of the suspect's bodily integrity that implicates the most personal expectations of privacy. Blood draw.jpg A warrantless search of a person's body is only reasonable if conducted pursuant to a warrant or a recognized exception to warrant requirement. One recognized exception to the warrant requirement is 'exigent circumstances', times when "there is a compelling need for official action and no time to secure a warrant". One situation involving exigent circumstances is preventing imminent destruction of evidence. In drunk driving cases, the evidence is being destroyed because blood alcohol concentration decreases by .015% to .02% per hour once the alcohol is fully absorbed. The question is, therefore, whether that dissipation of evidence creates 'exigent circumstances'.

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February 16, 2013

APPELLATE COURT RULES ON INTOXILYZER 8000 ADMISSIBILITY IN CENTRAL OHIO OVI CASES

For the first time, an appellate court in Central Ohio addressed whether evidence from an Intoxilyzer 8000 is admissible in an O.V.I./D.U.I. trial. The court of appeals ultimately decided that the defendant is prohibited from challenging the general reliability of the Intoxilyzer 8000, so the results of that machine's breath tests are admissible. The court's opinion, however, contained language questioning whether that prohibition should continue to be the law in Ohio O.V.I. cases.


The case is State v. Reid. Intoxilyer 8000 photo with sign saying do not use.jpgA previous post in this blog (June 11, 2011) discussed the ruling of the trial court. The trial judge concluded that breath test results from the Intoxilyzer 8000 are not reliable enough to be admitted as evidence. The trial judge wrote, "Having heard the testimony presented in the above cases, the court finds that the Intoxilyzer 8000 has not been demonstrated by expert testimony by the Ohio Department of Health to be an accurate and reliable instrument for breath testing in O.V.I. cases." Because the breath test result was not reliable, the judge excluded breath test evidence from the defendant's trial. Without the breath test evidence, the defendant took the case to trial and was found not guilty. The prosecution appealed the trial judge's decision to the Fourth District Court of Appeals.

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January 25, 2013

SHOULD OHIO POLICE BE ABLE TO DRAW BLOOD AGAINST YOUR WILL?

Trooper Mark Winder stopped Tyler McNeely for speeding and observed the usual trilogy of intoxication signs: odor of alcohol, bloodshot eyes, and slurred speech. Winder gave McNeely field sobriety tests and arrested him for driving while intoxicated. The trooper drove McNeely to a hospital and asked McNeely to give a blood sample. McNeely declined. Without obtaining or even seeking a warrant, the trooper had a lab technician take a blood sample from McNeely while McNeely was restrained. The blood sample was later analyzed, and it was determined that the concentration of alcohol in the blood was .154.

The trial court suppressed the results of the blood test, and the case made its way through the Missouri Court of Appeals and the Missouri Supreme Court to the United States Supreme Court. The question before the Supreme Court is: whether a law enforcement officer may obtain a nonconsensual and warrantless blood sample from a drunk driver under the exigent circumstances exception to the Fourth Amendment warrant requirement based upon the natural dissipation of alcohol in the bloodstream. The McNeely oral argument was held earlier this month and can be heard here.

1336409_syringe.jpg The prosecution in McNeely argues that involuntary warrantless blood tests are necessary to effectively enforce D.U.I. laws. The prosecution points out that alcohol in a suspect's blood dissipates with time, so the blood alcohol evidence is destroyed if time is taken to obtain a warrant. Due to those "exigent circumstances", the prosecution states, officers should be permitted to draw blood without a warrant.

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November 18, 2012

INTOXILYZER 8000 CHALLENGES CONTINUE

Previous posts in this blog discussed developments with the Intoxilyzer 8000 breath-testing machine. On May 30, 2011, the post summarized the Gerome case in Athens. In Gerome, the judge held the defendant is permitted to introduce evidence of factors affecting the breath test results. Another post reported the disappearing Intoxilyzer 8000 records maintained by the Ohio Department of Health. On June 11, 2011, this blog reported the judge's decision in the Reid case in Circleville. In Reid, the prosecution did not present expert witnesses, and the judge concluded the machine's results are not reliable enough to be considered as evidence. After the Reid decision, prosecutors have taken a couple different approaches with Intoxilyzer 8000 cases.

In the Bedford Municipal Court, the prosecutor used a novel approach. At the prosecutor's request, the two judges held a hearing with an "expert" witness for the prosecution but with no defense attorney even involved. When one side is not present, that's an ex parte hearing, which is generally prohibited in criminal law. With the "expert" witness from the Ohio Department of Health not being cross-examined by a d.u.i. defense attorney, guess what happened? The judges concluded that the Intoxilyzer 8000 is accurate and reliable! In addition to having the appearance of impropriety, the decision is not binding because it was held ex parte.

In the case of State v. Lancaster in the Marietta Municipal Court, the prosecutor is doing things in the way contemplated by the adversarial system. In response to the defense challenging the reliability of the 8000, the prosecutor provided reports of three expert witnesses, and the judge is holding hearings in which the defense can cross-examine the prosecution's expert witnesses. Like the Gerome case, the local defense bar obtained the assistance of two attorneys from the O.V.I. Committee for the Ohio Association of Criminal Defense Lawyers (Timothy Huey and me). On November 15, 2012, the first day of hearings was held, and I had the privilege of cross-examining the manager of engineering for CMI, the manufacturer of the 8000.

Two additional days of testimony have been scheduled for the State v. Lancaster case. In addition to the prosecution witnesses, the defense is going to call its own expert witnesses to discuss the 8000's reliability. When a decision is issued, which will be a few months, I'll report it here.

September 22, 2012

RULES NOT FOLLWED = BLOOD TEST THROWN OUT

There are rules for blood testing, and they aren't new. If the prosecution wants to admit a blood test as evidence in an Ohio O.V.I./D.U.I. case, the prosecution has to prove certain procedures were followed for the blood test. A few days ago, an Ohio court of appeals held that the procedures weren't followed, so the blood test should have been thrown out in Statev. Ragle.

Blood draw.jpgThe procedures that must be followed for an Ohio O.V.I./D.U.I. blood test are listed in chapter 3701‑53 of the Ohio Administrative Code. Section 3701-53-05 says "Blood shall be drawn with a sterile dry needle into a vacuum container with a solid anticoagulant...." In the Ragle case, there was no testimony about whether the needle was sterile and dry, and when the nurse was asked if there was an anticoagulant in the container where the blood was stored, she said: "You know, I don't have any idea what's in there."

The Ohio 9th District Court of Appeals concluded that the prosecution did not prove compliance with the rules in Section 3701-53-05. As a result, the court of appeals reversed the defendant's O.V.I. conviction. This result is not surprising. What's surprising is that the trial court concluded the blood test was admissible with testimony that "I don't have any idea" whether the rules were followed.

The Ragle case is a good example of an Ohio D.U.I./O.V.I. case that may seem hopeless for the defendant at the beginning (a blood test result over the limit) but turns out to be problematic for the prosecution. It's a good reminder that an Ohio D.U.I./O.V.I. lawyer needs to fully investigate cases, file motions to suppress evidence, and litigate those motions to effectively represent clients in Ohio D.U.I./O.V.I. cases.

February 5, 2012

INTOXILYZER 8000 RECORDS DISAPPEARING IN OHIO DUI/OVI CASES

The State of Ohio may be regretting its $6.4 million purchase of Intoxilyzer 8000 breath-testing machines. In State v. Gerome, the judge wrote a decision critical of the Intoxilyzer 8000 that stated the machine is "capable of producing an inaccurate result." In Statev. Reid, the judge decided the Intoxilyzer 8000 result was not even reliable enough to be admitted as evidence.

Implementing and maintaining the Intoxilyzer 8000s is the responsibility of the Ohio Department of Health's (ODH) Bureau of Alcohol and Drug Testing. Before the Intoxilyzer 8000s were purchased, individual police departments maintained breath testing machines and the records for the machines. Now, ODH maintains the records for all Intoxilyzer 8000s in Ohio. Like many states, Ohio maintains those records online where, as public records, they can be viewed by anyone at any time.

The records are changing and disappearing. Until recently, the records for breath tests indicated how many "sample attempts" there were in a test. After there were tests with unusually high numbers of sample attempts (indicating a possible problem with the machines), all records of breath tests were changed to delete the number of sample attempts. Also deleted from all records was the breath volume and duration of the breath sample. The records for breath tests also used to indicate the results of "subject test 1" and "subject test 2". After a judge found the test results did not comply with Ohio regulations (written by the Department of Health), the Department of Health changed all of the online records to say "subject sample 1" and "subject sample 2". After Intoxilyzer 8000 machines gave outrageous results, (like 10.00 and 23.00), the records of those tests were entirely deleted.

Is ODH permitted to alter and delete records? According to Ohio law, and written on the "Breath Instrument Data Center" of the ODH website, records of breath tests "shall be retained for not less than three years". Interestingly, this requirement is contained in a regulation authored by ODH. Implicit in that regulation seems to be a requirement that the records be retained without being altered. The deletion and altering of records may be more than a violation of a regulation. Ohio Revised Code section 2921.12 (Tampering With Evidence) says no person shall "alter, destroy, conceal or remove any record, document, or thing, with purpose to impair its value or availability as evidence in such a proceeding or investigation". Violation of this statute is a felony.

Whether a felony has been committed or not, altering and deleting records that are used as evidence in court has the appearance of impropriety. The ODH may have crossed the line in its efforts to protect the State's multi-million-dollar purchase of machines that courts are calling unreliable.

November 13, 2011

BLOOD TEST THROWN OUT IN OHIO OVI CASE BECAUSE DEFENDANT'S CONSENT WAS INVALID

Occasionally, evidence in Ohio O.V.I. (D.U.I.) cases comes from a blood sample taken at a hospital. When the blood sample is obtained in a hospital setting, issues arise regarding the admissibility of the blood test. One issue is whether the suspect's consent to giving the blood sample is valid. For the second time in a year, a court of appeals has concluded that a defendant's consent to a blood draw was not valid because it was not made knowingly and voluntarily.

The case in which the court of appeals reached this conclusion is State v.Rawnsley. In Rawnsley, the defendant was involved in a two-car accident and taken to the hospital. At the hospital, a police officer read to the defendant an Ohio BMV form that informed the defendant of the consequences of consenting to a blood test and refusing a blood test. Ohio's 'implied consent' law says there is an Administrative License Suspension for refusing the test or testing over the limit. The defendant consented to a blood test, and the result was presumably over the limit. The other driver involved in the accident was seriously injured, so the defendant was charged with Aggravated VehicularAssault.

The appeals court analyzed whether the defendant's consent to the blood test was valid. The court reasoned that, for the defendant to be subjected to an Administrative License Suspension, the defendant must be under arrest. As this defendant was not under arrest, she could not be subjected to an Administrative License Suspension for refusing the test. Because the officer erroneously told the defendant her license would be suspended for refusing the blood test, the defendant's consent to the blood draw was not made knowingly and voluntarily. As her consent was invalid, the blood test evidence was suppressed. The prosecution will not have to decide whether there is enough evidence to go forward with the charge of AggravatedVehicular Assault without the blood test evidence.

The officer was in a difficult position because he was following the typical protocol for O.V.I. cases, but there are some exceptions for unusual circumstances. The best practice for an officer in that position is to obtain a search warrant for the defendant's blood sample rather than relying on the defendant's consent. This case illustrates some of the complexities of Ohio O.V.I. law and the need for a skilled O.V.I. / D.U.I. lawyer.

August 13, 2011

MIAMI COP INVOLVED IN STRANGE AND TRAGIC INCIDENT ON ATV

In Miami, there's nothing strange or tragic about a police officer riding down the beach on an ATV. What makes this incident strange is the on-duty officer is taking a female passenger on a joyride while he's on duty. What makes this incident tragic is the officer plows into two pedestrians and severely injures both.

According to the Miami Herald, the officer and his partner went, on-duty, to a bachelorette party. After drinking and dancing with the women at the party, the officer gave the bachelorette a ride on his ATV and struck the two pedestrians. One suffered a broken leg, and the other was treated for a broken leg and a damaged spleen. Five hours after the accident, the officer's blood alcohol concentration was .088. The officer now faces charges of D.U.I. with serious bodily injury and Reckless Driving with serious bodily injury. He posted bond of $30,000 and is scheduled to appear in court on August 24, 2011.

In Ohio, the officer would be charged with two counts of Aggravated Vehicular Assault. A person is guilty of Aggravated Vehicular Assault if it is proven that his operation of the vehicle under the influence (or over the legal limit) caused serious physical harm to another person. The penalties include a prison sentence of one year to five years (on each count) and a license suspension of up to ten years (on each count).

It is curious that it took five hours to take a blood sample from the officer. The blood sample was drawn by Miami Fire & Rescue personnel. In Ohio, a blood test is admissible if the sample is drawn within two hours of operating the vehicle (R.C. 4511.19). After two hours, the blood test is admissible only with expert testimony.

The officer has already been fired from the Miami Beach Police Department. According to the Miami Newtimes Blogs, he has a less-than-stellar record with the police department. Strange and tragic indeed.

June 11, 2011

OHIO JUDGE RULES INTOXILYZER 8000 EVIDENCE INADMISSIBLE

The last post of this blog discussed the Gerome case in Athens, Ohio. In that case, which is still pending, the judge will make decisions about the reliability of the Intoxilyzer 8000 and whether a defendant must be given an opportunity to challenge the breath test's general reliability at trial. In a similar case in Circleville, Ohio, the judge recently ruled that evidence from the Intoxilyzer 8000 is not even reliable enough to be introduced as evidence at trial.


The case in Circleville is State v. Reid. In that case, three defendants were charged with O.V.I. and tested over the legal limit on Intoxilyzer 8000 breath tests. The defense attorney filed a motion challenging evidence concerning the Intoxilyzer 8000, and Judge Gary Dumm ruled in favor of the defendants.

In his decision, the judge stated, "The court has an obligation as a gatekeeper of evidentiary concerns to make its own assessment of the accuracy and reliability of the Intoxilyzer 8000 and this court has heard no evidence from ODH to lead it to believe that the machine is accurate and reliable." The judge went on to conclude, "Having heard the testimony presented in the above cases, the court finds that the Intoxilyzer 8000 has not been demonstrated by expert testimony by the Ohio Department of Health to be an accurate and reliable instrument for breath testing in OVI cases."

According to the Circleville Herald, Intoxilyzer 8000s in the Circleville area were immediately taken out of service and replaced with other breath-testing machines. According to my sources, the Ohio State Highway patrol is returning to using different breath-testing machines throughout the state. If the Intoxilzyer 8000 is no longer used in Ohio, what will the state do with the 700 machines it purchased at a cost of $6.4 million?

May 30, 2011

INTOXILYZER 8000 CASE MAY OPEN DOOR TO CHALLENGING BREATH TESTS IN OHIO

In previous posts, this blog has discussed two separate but related issues. The post on May 3, 2010 explained that defendants in Ohio O.V.I. cases do not have the ability to challenge the general reliability of breath testing machines at trial due to the holding in State v. Vega. The post on May 29, 2010 described how the Ohio Department of Health purchased 700 Intoxilyzer 8000 breath testing machines and is implementing use of the machines throughout Ohio. This post ties together those two issues because a case in Athens County involving the Intoxilyzer 8000 may open the door to challenges regarding the general reliability of breath tests.

The case in Athens County is State v. Gerome. In that case, the defendant was arrested for O.V.I. and tested over the legal limit on an Intoxilyzer 8000. The trial judge indicated that this case would be a test case to assess the reliability of the Intoxilyzer 8000. The local attorney representing the defendant obtained the assistance of two attorneys from the O.V.I. Committee for the Ohio Association of Criminal Defense Lawyers (Jon Saia and Timothy Huey).

The defense attorneys filed a motion challenging evidence concerning the Intoxilyzer 8000, and the prosecutor filed a motion seeking to exclude evidence at trial regarding the reliability of the breath test. The issues are framed as: (1) whether the holding in Vega still applies due to changes in the O.V.I. statute and case law; (2) whether evidence from the Intoxilyzer 8000 is reliable enough to be introduced as evidence at trial; and (3) if evidence from the Intoxilyzer 8000 is admissible at trial, must the defendant be given an opportunity to challenge the breath test's general reliability.

The Gerome case has captured the attention of the media. The case was the subject of multiple television news report and a Columbus dispatch article. The first hearing was held on May 28, and the next hearing will be held in June. It is anticipated that the trial judge will issue a decision by the end of June.

As part of the O.V.I. Committee for the Ohio Association of Criminal Defense Lawyers, I have had the pleasure of working on this case in preparation for these hearings. It is our hope that the Gerome case will mark the beginning of a new era in defending clients against O.V.I. charges in Ohio.

March 27, 2011

SHOULD I TAKE THE BREATH TEST IN AN OHIO OVI CASE?

As a D.U.I. defense attorney, this is one of the most frequently asked questions I receive (second only to "how can you do that?"). The answer is surprisingly complicated: it depends on factors that include how much alcohol you drank, whether you are more concerned about the short-term or long-term status of your driver's license, whether you have prior convictions, whether you're on probation, and whether you have a commercial driver's license.

If you are investigated for D.U.I. (O.V.I.), the process is going to involve the officer asking you to submit to a breath, blood or urine test. The first question to ask yourself is this: do I have a concentration of alcohol in my blood that is .08 or higher? Unfortunately, most people that have been drinking don't know the answer to this. While there are many variables that affect one's blood alcohol concentration (number of drinks, time period of drinking, weight, gender, etc.), a simple estimation can be found at the "drink wheel".

If you think there is a chance you are over .08, you probably don't want to take the test (subject to exceptions, including those discussed below). If you take the test, the prosecution will have additional evidence to use against you in court. If you don't take the test, there will be no test result to use against you, and the prosecution will have to prove that consuming alcohol impaired your ability to drive. If you take the test and the result is over .08, the prosecution must simply prove you operated a vehicle with a blood alcohol concentration over .08, even if the alcohol was not impairing your ability to drive.

A downside of declining the test is that the immediate license suspension is longer. If you refuse the breath test in Ohio (and you do not have prior convictions), the Administrative License Suspension is one year, and you are eligible for limited driving privileges in 30 days. If you take the test and are over the limit, the Administrative License Suspension is 90 days, and you are eligible for limited driving privileges in 15 days. The length of the Administrative License Suspension (and the waiting period for driving privileges) increases based on prior convictions and prior test refusals.

If you have prior convictions, there is additional incentive to take the test. Under Ohio Law (R.C. 4511.19[A][2]), a person with a prior O.V.I. conviction within 20 years who refuses the test is charged with a separate offense for refusing the test. That separate offense carries a jail sentence that is double the jail sentence for the O.V.I. charge.

You may also have additional incentive to take the test if you are on probation for an alcohol or traffic offense. Judges commonly order, as a condition of probation, that defendants not refuse chemical tests requested by law enforcement officers. If you are on probation and refuse the test, the refusal may be a probation violation that can result in a jail sentence.

If you have a commercial driver's license (CDL), refusing the test can be disastrous. Although a court can grant limited driving privileges during an Administrative License Suspension, a court cannot grant privileges to use a CDL. That means, if you refuse and get a one-year license suspension, it is actually one year without using the CDL.

Although "should I take the test" is a frequently asked question, there is not an easy answer. Hopefully, the issues discussed here will help you think through the issues to make the best decision. The issues are discussed from a strategic perspective: the best course of action is don't put yourself in a position where you have to make this decision.