Ohio: Supreme Court Criminalizes Breathalyzer Refusal

The Newspaper
by The Newspaper

The Supreme Court of Ohio last Wednesday voted 4-3 to impose criminal sanctions for the first time on a motorist exercising his right to refuse to submit to warrant-less testing after being accused of driving under the influence of alcohol (DUI). Until recently, the only sanction imposed for such refusal was administrative. The decision came down in the case of Union County resident Corey Hoover who had been pulled over by Deputy Kelly S. Nawman on September 8, 2006. Nawman testified that Hoover’s tire crossed over the center line of the road, that he smelled of alcohol and that he performed poorly on field sobriety tests. Nawman arrested Hoover and asked him to perform a breathalyzer test at the sheriff’s office. Hoover refused.

In 2004, the Ohio legislature “enhanced” the criminal penalty for anyone with a prior DUI conviction who refused to take a breath test upon the demand of a police officer. As a result, Hoover was sentenced to serve the minimum twenty-day jail term set by the enhanced penalty statute. Had he not exercised the refusal option, Hoover’s sentence would have been reduced to just ten days in jail. The majority insisted that imposing criminal sanctions in this way did not violate the Fifth Amendment protections against self-incrimination and double jeopardy or the Fourth Amendment protection against warrantless searches.

“It is crucial to note that the refusal to consent to testing is not, itself, a criminal offense,” Justice Judith Ann Lanzinger wrote for the majority. “The activity prohibited… is operating a motor vehicle while under the influence of drugs or alcohol. A person’s refusal to take a chemical test is simply an additional element that must be proven beyond a reasonable doubt along with the person’s previous DUI conviction… 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 high court pointed out that only the license suspension penalty would be imposed on a driver who refused a breath test but was not convicted of DUI. Three justices disagreed with this analysis, insisting the majority was indeed criminalizing the exercise of a constitutional right.

“The issue here is whether the state can criminalize a person’s failure to consent to a warrantless search, or in other words, to force a consent to search through the coercive power of threatened jail time,” Justice Paul E. Pfeifer wrote in the dissent. “Imposing criminal sanctions for failure to consent goes far beyond the state’s power… to regulate the licensure of drivers. The statute at issue herein imposes a codified dilemma — consent to a warrantless search or face the possibility of a criminal penalty — and thus amounts to coercion. [The statute] therefore violates defendants’ rights under the Fourth Amendment to the United States Constitution and Section 14, Article I of the Ohio Constitution.”

A copy of the decision is available in a 65k PDF file at the source link below.

Ohio v. Hoover (Supreme Court of Ohio, 9/30/2009)

[courtesy thenewspaper.com]

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  • OfficerNelson OfficerNelson on Oct 06, 2009

    I don't know how you crazy Ohio folk do things, but here in California, drivers waive the right to refuse a BAC test when they obtain a license. Does Ohio not do the same thing? For that matter, here's an effective method of avoiding being "stripped" of your rights: don't drink and drive in the first place.

  • Martin Albright Martin Albright on Oct 07, 2009
    I don’t know how you crazy Ohio folk do things, but here in California, drivers waive the right to refuse a BAC test when they obtain a license. Does Ohio not do the same thing? I think this is a common misconception. You have to understand that there are two, completely, totally separate legal issues here: 1. The driver's license, which your state issues to you pursuant to certain rules and regulations that are promulgated by the executive agency (DMV or whatever it's called in your state.) and 2. The Criminal justice system, whereby a person can be charged criminally if they commit a crime. Regarding the license, the state sets up rules for the issuance of a DL. They can mandate training requirements, licensing restrictions, medical requirements, and so on. A person who meets all of the qualifications set up by the state is entitled to receive a license. A person can also challenge those requirements if he believes them to be unfair or discriminatory. One of the rules the states normally have is the "implied consent" rule (here in Colorado it's called the "express consent" rule but it's the same thing.) That rule states that, as a condition of receiving a license, a driver must submit to a blood, breath or other sobriety test when a law enforcement officer requests it (though generally speaking such request must be supported by at least some reasonable suspicion, though that, too, varies by state.) A person who does not comply (by refusing the test) is then in violation of the agreement under which the license was issued and the state, acting under the rules set up by the DMV, can then move to revoke the license for failure to comply with the implied/express consent provisions of the law. Note that this is an administrative, civil process, not a criminal matter. Now, if the driver does consent to the test, then that evidence can then be used for purposes of criminal prosecution. As with all criminal prosecutions, the burden of proof is on the State to prove, beyond a reasonable doubt, that the driver was driving while intoxicated. If you refuse to take the sobriety test, the state can revoke the license (as stated above) and the prosecutor can still charge the driver with DUI, using the evidence that is available (the officer's testimony that the vehicle was 'weaving', the driver's appearance and demeanor when stopped, any dashboard-camera videos of the driver taking the field sobriety test, any observations made by the police or the jail personnel when the driver was taken to jail, etc.) What is troubling about this case is that the judge appears to have enhanced the criminal sentence because the defendant exercised his 4th amendment rights to not consent to a warrantless search, and this was affirmed by the highest court in the state. To use another analogy, it would be as if a court were allowed to increase your sentence because you exercised your Miranda rights and asked for a lawyer instead of confessing.
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