By Colin Maher
Yourright to refuse a breath test after getting pulled over for suspected drunk driving depends on where the traffic stop occurs and how far along in the detention and arrest process you are. Some states allow drivers to refuse breath testing until they are already in custody and in a secure facility. Other states require individuals who are suspected of driving under the influence to use a Breathalyzer as soon as an officer asks them to do so.
In Ohio, where I practice as a Traffic Lawyer, authorities are not supposed to administer breath tests until they are at a police station with the appropriate testing machine or a mobile unit with the appropriate machine comes to the scene. Once an Ohio driver is in custody, however, saying no when asked to blow into a breath-testing device will result in an immediate license suspension.
A Closer Look at a State That Recognizes a Strong Right of Refusal
As noted, Ohio laws allow drivers to simply say no when a police officer asks them to use a Breathalyzer by the side of the road or at a DUI checkpoint. This right of refusal actually extends to every field sobriety test, including walking a straight line and standing on one foot. Also, Ohio police cannot issue charges or make arrests just because a driver declines requests to perform field sobriety tests.
The reason my DUI clients in Columbus and elsewhere in central Ohio have this strong right of refusal is that state courts have ruled that Fifth Amendment protections against self-incrimination can be violated by doing the tests. Breathalyzer readings can be highly inaccurate, and there are no purely objective ways to assess how well someone walks a line or maintains balance.
Drivers Should Know About Implied Consent Rules
When it comes to alcohol breathtesting, implied consent means that police officers do not need to obtain warrants before taking and analyzing breath samples from a suspected drunk driver. The fact that a law enforcement official has stopped you or transported you to a testing facility implies that sufficient grounds exist to conduct a test for alcohol use.
Most states enforce implied consent at some point during a DUI investigation. But even in states that do not, obtaining an electronic warrant to do alcohol breath testing without visiting acourthouse has become as simple as sending an email to a judge.
In Ohio, implied consent for breath, blood and urine testing exists at police stations and health care facilities that are certified to conduct alcohol and drug tests. A suspected drunk driver can still refuse to provide test samples, but he or she will face penalties for doing so.
A final thing to note is that a Columbus DUI attorney will contest Breathalyzer results, as well as results from any blood and/or urine tests. Police officers and lab techs have to follow very strict rules when collecting, transporting, analyzing, and storing testing samples. Any procedural error or oversight can destroy the test results’ usefulness as evidence of driving under the influence.
If you are facing OVI charges, call The Maher Law Firm at (614) 205-2208 to speak to a DUI defense lawyer now.