Suppose a person is charged with DUI (called ‘OVI’ in Ohio) and that person previously refused an alcohol/drug test when arrested for OVI. Can that person’s sentence be enhanced for the current OVI based on the prior refusal? This question was recently addressed by the Wisconsin Supreme Court. In Ohio, this question is addressed in the Ohio OVI statutes. The Ohio OVI statutes are nuanced and do provide consequences for prior convictions and test refusals.
Increased Sentences for Prior Test Refusals
Scott Forrett was charged with OWI in Wisconsin and had previously been subjected to an administrative license suspension for refusing a blood test. When Forrett was convicted of the OWI, his sentence was increased based on the prior blood test refusal. The Wisconsin Supreme Court held it was unconstitutional to increase the sentence because the prior blood test was requested without a search warrant. The Court based its decision on Birchfield v. North Dakota, which held that search warrants are generally required for blood tests. Therefore, the Court reasoned, Forrett had a right to refuse the previous warrantless blood test. Accordingly, he could not be punished in his current case for previously exercising a Constitutional right.
In Ohio, this issue is addressed in the OVI statute (ORC 4511.19). That statute provides for enhanced sentences based on prior OVI convictions within the past ten years (upheld by State v. Hoover). However, there is no provision for enhanced sentences based on prior test refusals. A person charged with OVI in Ohio cannot have the mandatory sentence enhanced based on a prior blood/breath/urine test refusal.
Increased License Suspensions for Prior Test Refusals
Although a prior test refusal does not increase the mandatory sentence in a person’s current OVI case, it may lead to a longer administrative license suspension. Ohio’s implied consent law (ORC 4511.191) imposes an administrative license suspension for a person who is arrested for OVI and refuses to submit to a blood/breath/urine test. The length of the license suspension increases if the person has one or more prior test refusals (or OVI convictions) within the past ten years. For a first refusal, the suspension is one year, a second refusal results in a two-year suspension, and a third refusal leads to a three-year suspension. On a person’s fourth (or more) refusal, the suspension is five years.
Increased Sentences for Refusing a Test and Having a Prior Conviction
While a prior test refusal does not increase the mandatory OVI sentence, a prior OVI conviction may. If a person is arrested for OVI and refuses a blood/breath/urine test, that person’s mandatory jail term is doubled if he or she has a prior OVI conviction within the last 20 years. For example, the minimum mandatory jail term for a second offense is ten days. If a defendant has a prior OVI conviction within 20 years and refused a blood/breath/urine test in the current case, the minimum mandatory jail term is increased to 20 days.
Nuanced Ohio OVI Sentencing
Sentencing for Ohio OVI convictions is complicated, and the impact of prior convictions and test refusals can be confusing. A person facing an OVI charge, particularly if they have a prior conviction or test refusal, would benefit from consulting an experienced OVI defense law firm.