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To Blow Or Not To Blow

people-Breathalyzer_test-1000-ffccccccWhite.pngAs an OVI/DUI defense attorney, the question most frequently asked by friends, family, and complete strangers is this: “If I get pulled over for drunk driving, should I take the breath test?”

The short answer is “It depends.” The OVI/DUI laws in Ohio are focused on accomplishing two things: 1) If arrested for OVI/DUI, take the test, and 2) whether you take the test or not, plead guilty to OVI/DUI. Despite this, there are times when it is appropriate and times when it is not appropriate to take the breath test. Before making this decision, it is important to know what the ramifications are for either taking the breath alcohol test and failing it, or refusing to take the breath alcohol test. The following information assumes the facts of a first offense OVI/DUI and does not involve an individual that has a Commercial Drivers License (CDL).

Initially, it is important to understand that if an officer is requesting that you submit to a breath alcohol test, you have already been arrested because the officer believes that you are under the influence of alcohol. Whether you choose to take the breath test or not, you can still be convicted of an OVI because the breath test is not necessary for an OVI conviction. This is generally referred to as OVI-Impaired. However, having a breath test result above a .08 does give the prosecuting attorney additional evidence which will assist in obtaining a conviction. A positive breath test also results in an additional “OVI-per se” charge being filed against you because the State of Ohio has made it illegal to operate a vehicle with a blood alcohol level above a .08.

So, what happens if you take the breath test and test above a .08? First of all, the Ohio Bureau of Motor Vehicles will immediately suspend your driver’s license under what is called an Administrative License Suspension (ALS). If you submit to a chemical test and the results are at or above the legal limit of .08, your license will be suspended for 90 days. No driving privileges can be granted for the first 15 days of this suspension. This has been termed the “hard time” of the ALS, but thereafter limited driving privileges may be granted. The prosecutor will be able to file not only the OVI-Impaired, but also the additional OVI-per se charge against you. The positive breath test is pretty damaging evidence. If you test over a .17, the minimum jail time is doubled from 3 days to 6. If you are ultimately convicted of the OVI, the court can suspend your license from a minimum of six months to a maximum of three years. If you are found “not guilty” of OVI-per se, the ALS will be terminated.

Many attorneys will not bring an OVI-per se case to a jury trial because of the lopsided way in which OVI laws are interpreted in Ohio. While Ohio has rules and regulations that require the state to maintain breath-testing machines, check the accuracy of the machines, properly administer breath tests, issue operator permits, and maintain records, courts have interpreted Ohio’s OVI laws to the advantage of the State. The 1984 case of State v. Vega is the stronghold of this line of cases, holding that a defendant may not make a general attack on the reliability and validity of the breath-testing machine. Many Ohio courts have interpreted Vega to prohibit any defense regarding the accuracy of the breath test result. Interestingly, Ohio is one of the only states in the country that prevents a Defendant in an OVI case from challenging the accuracy and reliability of a breath test. Because OVI defense attorneys have had their hands tied by Vega for so long, the advice they give to those accused of drunk driving is generally, “refuse.”

If you refuse to submit to a chemical test, your license will be suspended for one year and you will not be eligible for limited driving privileges for the first 30 days of that suspension. The prosecutor in a “refusal” case will not be able to file the additional “per se” charge against you, will not have positive breath alcohol test results to use against you, and will have to rely on your driving, your performance on the Standard Field Sobriety Tests, and the Officer’s testimony to try to prove that you were too impaired to operate a vehicle at the time of your driving.

If you are convicted of OVI-Impaired, the court can suspend your license from a minimum of six months to a maximum of three years. Unfortunately, if you are found “not guilty” of the OVI, the ALS will remain in effect.

While refusal cases are sometimes viewed as more “triable” than OVI-per se cases, the Ohio Supreme Court may soon level the playing field for defense attorneys in test cases. On November 6, 2013, the Ohio Supreme Court accepted the case of State v. Ilg on appeal and will eventually answer the question of whether St ate v. Vega prohibits defendants in OVI cases from making attacks on the reliability of breath testing instruments. Should the Supreme Court choose to level the playing field in OVI cases and give a defendant charged with OVI the ability to challenge the breath test result to a jury, deciding whether to submit to a breath test may be become less important than simply finding a good OVI trial attorney.

Jessica G. D’Varga is an Associate Attorney at [nap_names id=”FIRM-NAME-1″] Contact the firm if you need powerful representation for criminal charges.