Imagine that the police show up at your door and want to search your house. If you don’t consent, the police can’t search without a warrant or an applicable exception to the warrant requirement. Refusing to consent to a search is not ordinarily a criminal offense. In a recent case from the Ohio Supreme Court, however, the Court concluded that it can be a criminal offense for some people to refuse consent in some circumstances.
In State v. Hoover, the Court upheld the Constitutionality of Ohio’s law criminalizing the refusal of a chemical alcohol test (breath, blood, or urine). The Ohio law, R.C. 4511.19(A)(2), makes it a separate criminal offense to refuse to submit to a chemical alcohol test if the suspect is arrested for OVI (DUI) and has a prior OVI (DUI) conviction in the last 20 years. Violating this law carries a minimum mandatory jail sentence that is double the minimum mandatory jail sentence for the underlying OVI charge.
In Hoover, the Ohio Supreme Court held that R.C. 4511.19(A)(2) does not violate the fourth amendment to the United States Constitution or Article I, section 10 of the Ohio Constitution. The Court pointed out that, as part of enjoying the privilege to drive in Ohio, a driver implicitly consents to a chemical test to determine the amount of intoxicating substances in the driver’s body. The Court acknowledged that the test is a search but decided that certain drivers cannot refuse the search. The Court went on to conclude that, “Asking a driver to comply with conduct he has no right to refuse and thereafter enhancing a later sentence upon conviction does not violate the constitution.”
The Constitutional provisions discussed in Hoover protect individuals from unreasonable searches and seizures. Taking a breath, blood, or urine sample for a chemical alcohol test is a search. A search must be done pursuant to a warrant or some applicable exception to the warrant requirement. One exception to the warrant requirement is consent.
If a person does not consent to a chemical alcohol test, police may be able to obtain a blood, breath or urine sample without a search warrant anyway (based on another applicable exception to the warrant requirement, such as “exigent circumstances”). The presence of another exception to the warrant requirement should not affect the suspect’s right to refuse to consent or criminalize that refusal. As far as I know, there is not what some commentators call a “DUI exception to the Constitution“.