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.