We have written a number of articles on OVI in Ohio. Occasionally, we have mentioned the breath test. Most Ohio drivers have probably heard of the breath test. But they may still have questions about it. For example, what happens if you fail the breath test and what happens if you refuse the breath test? This article will hopefully shed some light on the subject of the breath test in Ohio.
Failing the Breath Test
Oftentimes, law enforcement officers offer a breath test after they have arrested someone for OVI. The police can arrest you for OVI because you appear to be inebriated. Their perception often includes the way the driver looks, smells, and how they perform on the field sobriety test. Once the driver is arrested for OVI, the breath test is used as additional information. A breath test failure serves as evidence that you were OVI when your case is in court. However, refusing the breath test has consequences as well.
Immediate Effects of an OVI Refusal
If you are operating a vehicle in Ohio, you are bound by Ohio’s Implied Consent laws. This means that by driving on Ohio’s roads, you are effectively consenting to take a breath test if a law enforcement officer asks you to do so. In some sense, you do not “have the right,” to refuse a breath test. You physically can refuse and the, and if you do, the police will not administer one. However, this refusal is in itself outside the law and you will be subject to the penalties.
The penalty for refusing the breath test is a minimum of a year’s suspension of your driver’s license. If the court finds you guilty of OVI, you face the penalties for OVI in addition to the year’s suspension. These penalties can include jail time and fines. OVI penalties themselves vary depending on several factors, such as how many previous OVIs you have. In fact, one of the things that affects the penalties of an OVI conviction is whether you have a breath test refusal on your record.
Breath Test Refusal on Your Record
When you are convicted of OVI in Ohio, the court looks at how many misdemeanor OVI convictions you have in the last 10 years, and how many felony OVI convictions you have in your lifetime. Given which number (and degree) of OVI conviction you are on, the penalties change based on whether or not you have a high test (BAC of 0.17% or higher).
Now, if you have refused to take the breath test any time in the past 20 years, you often face the same penalties you would for a high test. Even if you had a low test, your penalties are often increased because of the OVI refusal.
Conclusion
Knowing your rights and responsibilities is important any time you are facing legal charges. Many times people run into trouble because they have rights they don’t know they have. In the case of the breath test in Ohio, they often have the opposite problem; they think they have the right to refuse and don’t realize there are penalties for doing so. Granted it is very hard to keep track of all the OVI laws and penalties in Ohio, let alone any approaches you can take to avoid some if not all of the penalties. That’s it is best practice to call an attorney when facing OVI (or any other criminal charge). If you have criminal charges in Ohio, feel free to contact the expert attorneys at Dearie, Fischer & Martinson. With over 30 years of experience, our lawyers operate primarily in Warren, Montgomery, Clinton, Butler, and the surrounding Ohio counties.
