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Ohio’s Implied Consent Warnings May Be Unconstitutional

On Behalf of | Jun 23, 2016 | OVI |


After hearing oral arguments on April 20, 2016, the Supreme Court issued a landmark (in the OVI world) decision today in the case of Birchfield v. North Dakota, et al. The question posed to the Court was whether a blood or breath test can be taken without a warrant and if a warrant is not required, whether an individual can be charged with a crime for refusing to take a chemical test. Currently 13 states criminalize certain refusals, including Ohio.

Does it violate the 4th Amendment?

The Court answered that question by finding that, while the Fourth Amendment permits warrantless breath tests incident to arrests, warrantless blood tests violate the Fourth Amendment and are unconstitutional. As such, a State may criminalize the refusal of a breath test, but a defendant has a Constitutional right to refuse a blood test. In justifying its decision, the Court opined,

“Because the impact of breath tests on privacy is slight, and the need for BAC testing is great, the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving. Blood tests, however, are significantly more intrusive, and their reasonableness must be judged in light of the availability of the less invasive alternative of a breath test. Respondents have offered no satisfactory justification for demanding the more intrusive alternative without a warrant. In instances where blood tests might be preferable-e.g., where substances other than alcohol impair the driver’s ability to operate a car safely, or where the subject is unconscious-nothing prevents the police from seeking a warrant or from relying on the exigent circumstances exception if it applies. Because breath tests are significantly less intrusive than blood tests and in most cases amply serve law enforcement interests, a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving. No warrant is needed in this situation.”

Ohio’s OVI Law

Ohio law requires an arresting officer to issue certain warnings to arrestees regarding their decision to take or refuse a blood, breath or urine test called “implied consent” warnings. This information and advice is provided to arrestees on a specific form and must be read verbatim when an officer requests a bodily substance test. Because these mandated warnings treat blood, breath and urine tests the same, the warnings and the form on which they are provided may now be unconstitutional.

At The Law Offices of Saia, Marrocco & Jensen Inc., our Columbus OVI defense attorneys have the skill and experience to build the defense you need after an arrest. Let us protect your rights by calling (888) 684-6446 and schedule your free consultation today.

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