Implied Consent
Dayton, Ohio’s implied consent law states that everyone operating a motor vehicle gives implied consent to submit a blood, urine, or breath test. This implied consent applies regardless of whether the driver has a valid driver’s license or is driving while underage. Although this implied consent takes effect anytime a person operates a motor vehicle, the driver may refuse to submit a chemical test despite its name.
There are several chemical tests, but this refusal commonly occurs during breathalyzer tests. The law does not mandate that the driver has a right to a Miranda reading nor an attorney when the officer asks them to take a chemical test, such as a breathalyzer test.
Ohio Implied Consent Lawyer
If you have been arrested for a DUI or subjected to a forced chemical test, contact Joslyn Law Firm. You have rights and unfortunately, law enforcement is not on your side in these cases. In a situation like this, it is best to retain legal advice from a skilled criminal defense lawyer.
Brian Joslyn is knowledgeable in all areas of Ohio’s OVI and DUI laws and will work hard to achieve a favorable outcome for your case. Call (937) 356-3969 to schedule a free consultation today.
Joslyn Law Firm serves clients in the areas of Dayton, OH including Kettering, Huber Heights, Troy, Piqua, Springfield, Beavercreek, and Fairborn.
Information Center
- Refusing A Breathalyzer Test In Dayton, Ohio
- Refusing A Breathalyzer Test Penalties
- Refusing A Breathalyzer Defenses
- Additional Resources
Refusing A Breathalyzer Test In Dayton, Ohio
Ohio statute says that anyone who drives gives officers their implied consent to be tested for intoxication, whether for drugs or alcohol. However, drivers may refuse a breathalyzer test—they may refuse a breathalyzer test because they assume it will help their case should an officer arrest them for drunk driving. Sometimes, drivers refuse a breathalyzer test because they believe it will prevent an arrest and license suspension. There are other individual reasons why someone may prefer not to take a chemical test.
But despite the apparent advantages that drivers may think this refusal affords them, refusing a breath test is not without its penalties. When a suspect refuses a breath test, the police must confiscate the driver’s license and turn it in for suspension, per Ohio Revised Code Section 4511.191. The police may still arrest the driver for alcohol or drug-related offenses under other circumstances. For example, if the driver reeks of alcohol or marijuana, was driving erratically, has bloodshot eyes, and fails a field sobriety test, the officer has sufficient probable cause to make an arrest. An open container in plain sight is also grounds for an arrest.
This law doesn’t apply to anyone who does not have physical control over the vehicle, such as a passenger.
Refusing A Breathalyzer Test Penalties
There are significant penalties for refusing a breathalyzer test. If this is the defendant’s first refusal, the court will suspend their license for one year. The license suspension is for two years if this is their second refusal. A third refusal results in a three-year suspension, and a fourth suspension results in a five-year suspension. The time the defendant must wait before requesting a limited driving privilege license varies depending on how many times the defendant has refused a breath test within twenty years of each other. For example, a first-time refuser must wait thirty days, but a fourth-time refuser must wait three years before requesting a restricted license.
Refusing A Breathalyzer Defenses
Lack Of Knowledge
Before administering a chemical test, the arresting officer must inform the suspect of the penalties for refusing a breathalyzer test. If the officer fails to inform the suspect that the court will suspend their license and a judge may use their refusal as proof of guilt, this evidence may be thrown out. Thus, an officer’s failure to inform the suspect of their legal rights to refuse the test and the legal repercussions for such refusal may be grounds to suppress evidence of refusal. A defendant must voluntarily, knowingly, and intelligently refuse a breath test. The defendant cannot knowingly refuse a breathalyzer if they’re not informed of the repercussions and legalities surrounding a refusal.
Mistake Of Fact
If the defendant would like to prevent the court from admitting the breathalyzer refusal into an OVI case, the defendant may raise a mistake of fact defense. Perhaps the officers misinformed the defendant about their right to refuse a breath test and the consequences of such refusal. If the defendant mistook something as false to be true under the guidance of the arresting officers, the defendant could request the court to suppress the breath test refusal, excluding it from evidence in court.
Not A Refusal
Suspects have two hours from the time of the police pulling them over to take the chemical test. Thus, a defendant may refuse to take the test initially but reconsider within that two-hour gap. If the officer prematurely faults the defendant for refusing to take the breathalyzer test, the defendant may use this as a defense.
Operating A Vehicle While Intoxicated
The most common Ohio drunk driving charge associated with refusing a breath test is operating a vehicle while intoxicated. The driver may be intoxicated by alcohol or drugs, including prescription medication. The driver must have a blood alcohol content level of 0.08 or higher to violate the law. If the driver has a blood alcohol content level of 0.08 or more, they must not drive a vehicle, streetcar, or trackless trolley on public or private property. The court will assume the BAC impaired the driver if their BAC is beyond legal limits. Therefore, a defendant facing this charge should immediately speak with a qualified OVI defense lawyer.
Operating A Vehicle While Intoxicated Penalties
Operating a vehicle while intoxicated is a misdemeanor. If the drunk driver injures someone, this crime becomes a felony. Whether a misdemeanor or felony, this crime comes with serious penalties, such as excessive fines, extended license suspension, and lengthy incarceration. Due to the implied consent law, refusing to take a breathalyzer may increase the defendant’s sentence. Recall that standard field sobriety tests can also reveal that a suspect is under the influence, so a breath test refusal won’t necessarily allow the defendant to escape these penalties.
Additional Resources
Ohio Revised Code Section 4511.191 – This Ohio statute provides the definitions and legal explanation of Ohio’s implied consent law.
Ohio Mental Health And Addiction Services – This Ohio website provides information on a driver intervention program for drivers living with a substance use disorder.
Ohio Implied Consent Attorney | DUI Defense
If you have been arrested for a DUI offense including implied consent to submit a blood, urine, or breath test, seek the help of a practiced defense attorney in Dayton, Ohio. A skilled Dayton DUI attorney such as Brian Joslyn from Joslyn Law Firm can identify mitigating factors or defenses that will be beneficial to your cases and work hard to obtain a reduction or dismissal of the charges against you.
If you have been accused of driving under the influence offense throughout the areas of Montgomery County, Miami County, Clark County, and Greene County, call (937) 356-3969 to schedule a free consultation today.
