Historically, if a driver refused to give a sample of blood, breath or urine, the driver’s license would immediately be suspended for refusing, but there would be no alcohol test to use as evidence against the driver. Things changed in 2009, when the Ohio legislature passed a law saying, if a person with prior O.V.I. convictions refuses to submit to a chemical test, “the law enforcement officer who made the request may employ whatever reasonable means are necessary to ensure that the person submits to a chemical test of the person’s whole blood or blood serum or plasma.” R.C. 4511.191(A)(5).
The law authorizing forced blood draws was recently reviewed by an Ohio court of appeals in State v. Slates. Slates was arrested for O.V.I. and had prior convictions. The arresting officer requested that Slates submit to a breath test, but Slates refused, so the officer took him to the emergency room for blood to be drawn. Slates repeatedly said he did not want his blood drawn and physically resisted. The officer held down his arm while the nurse inserted the needle and drew his blood. The trial court ruled that the blood test would be admissible at trial, so Slates pled No Contest to O.V.I. and appealed to the Ninth District Court of Appeals.
On appeal, Slates argued that the law authorizing forced blood draws is unconstitutional because a forced blood draw is an unreasonable search and seizure. The Court of Appeals found that the intrusion on an individual’s Fourth Amendment interests is outweighed by the promotion of the government’s legitimate interest in public safety. Therefore, the court concluded, a forced blood draw in these circumstances is constitutional.
A person with prior O.V.I. convictions who refuses a chemical alcohol test will be in a lose-lose situation: there will be a longer Administrative License Suspension for refusing the test, and the results of the blood test will be admissible at trial. At least Ohio has not gone to the use of “phlebotocops” like those in Arizona, where police officers conduct forced blood draws on the street.