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Refusing the breathalyzer

What to know before saying 'No'

By Kate Liebers

Never take a breathalyzer! was the message Ohio State senior Erdem Muharrem proclaimed, as if his freedom depended on avoiding the device used to chemically determine how much alcohol is in one's system.

"It just puts you at more risk," graduate student Andrew Raber said of taking a breathalyzer test. "It gives proof that you're drunk."

Yet this "never, no way, no how" attitude is what one lawyer calls the flawed "urban rule." Deciding when to refuse to take a breathalyzer test only moments after being pulled over is a delicate debate.

Attorney Ed Hastie, who specializes in DUI/OVI cases, insists that there is no one piece of advice that applies to every situation.

"People who adhere to the 'I never blow' rule have to understand what the punishment is," said Hastie.

The consequences of declining
In some regards, the penalties for declining a test are harsher than those for actually failing the test.

Carrie Glaeden, a judge at the Franklin County Municipal Court, said the administrative penalties for first-time offenders refusing to take the test include lose their license for a year, while those who took the test and failed incurred a license suspension for only 90 days.

According to the Ohio Bureau of Motor Vehicles, "The administrative suspension is independent of any jail term, fine or other criminal penalty imposed in court for a OVI offense."

The BMV listed other penalties for a first offense, including a minimum of three consecutive days in jail or a three-day driver intervention program, a fine of $250 to $1,000 and a court license suspension of six months to three years.

Regarding the jail time, fines and court costs, the consequences are the same as if had failed the test.

"Test or no test, that's the same penalty," Glaeden said.

Your rights: is punishing refusal unconstitutional?
Hastie brought up the Fifth Amendment, which protects against self-incrimination.

"They're penalizing you criminally for exercising your rights," Hastie claimed.

He continued to liken the situation to if a suspect drug dealer was told that the jail time would be significantly less he or she admitted to the crime.

"It's wrong. It's wrong on a lot of levels," said Hastie.

Yet Glaeden said that the court did examine the law, and determined that a law that gives enhanced penalties for refusing to take a breath test is, indeed, legal. Instead of the drug dealer analogy, Glaeden compared the situation to rape - the person charged with the crime would be subject to a DNA test.

"Driving is a privilege, not a right," Glaeden clarified. "When you sign your license, you're agreeing to submit to a test."

As the Ohio alcohol laws states, according to the BMV, "Anyone operating a motor vehicle will be assumed to have given implied consent to a chemical test or a test of the person's blood, breath or urine."

Consequently, if a driver refuses to take that test, Glaeden said the legislators have the right to impose more penalty.

Attorney's advice for keeping a clean record
When refusing the test has similar - if not steeper - penalties than taking the test and failing, it seems like taking a chance with the test would be the practical course of action. This is, if you're willing to risk the integrity of your criminal record.

"The OVI record - that's the thing with college students. That's the big thing - creating this record that you have to answer to on every job application," said Hastie.

Furthermore, if the offense occurred on campus, the student could face university penalties. According to Justin Moses, assistant director of student judicial affairs, the student could be put on probation, suspended or assigned various interventions.

"If people don't fully understand what their rights are, they can't make an informed decision," said Hastie.

His advice: Don't give the officer a reason to believe you shouldn't be driving.

"If you have been drinking - unless you are positive you are going to pass - you shouldn't take a breathalyzer test because you are going to give [the officers] evidence," advised Hastie.

The 2 types of charges
According to the Ohio BMV, illegal per se blood alcohol content law is .08 for drivers over 21. Hastie said the only way to confirm a driver's BAC to get the "per se" charge would be to take a chemical test, such as a breath test.

Yet a driver may also be charged with impaired driving, which is more subjective. Hastie said an "impaired" charge could be proven with circumstantial evidence, such as admitting to having six beers or failing a field sobriety test.

"So if you don't give the police officer all the information, if you didn't take the breathalyzer, there isn't much they can use," said Hastie.

However, even if you refuse the breathalyzer test, the officer can call a judge to get a warrant to take a blood test if there is probable cause.

"So they can take the evidence anyway," Glaeden countered. Simply refusing a field sobriety or a chemical test is "not a fool proof way of getting out of a DUI," she said.

Often times, a field sobriety test can be conducted to obtain such probable cause. Asking drivers to engage in a series of coordination and reflex exercises is another technique officers employ to gauge one's ability to drive safely.

The judgment call
As Glaeden said, it's not illegal to consume some alcohol before driving - you are allowed to have a .08 BAC. Without a chemical test, the officer - like the driver - has to make a judgment call.

And according to Hastie, officers "are always gathering information." For example, when they ask you to step out of the car.

Staying true to the "don't give the officer evidence" advice, Hastie said that, unless the driver is under arrest, he or she is not obligated to step out of the car. If the officer asked a driver to step out of the car to conduct a field sobriety test, Hastie said he could make the argument that the officer was putting the driver under arrest. Yet field sobriety tests, Hastie included, are used to give probable cause for arrest in the first place.

While Hastie emphasized the importance of being polite to the officer, Glaeden's advice went a step further - to immediately comply with the officer's request.

Glaeden said that the officer doesn't often ask a driver to step out of a car for basic traffic violations.

"If you refuse [to get out of the car], they have the right to get you out," Glaeden said.

As Glaeden and Hastie both described the situation, an officer will pull someone over for suspicious driving or for a traffic violation.

"Consuming alcohol is not in the picture yet," said Glaeden - that investigation begins when the officer approaches the driver.

The one that got away
Unlike the chemical breath test, according to both Hastie and Glaeden, there are no penalties for refusing to take a field sobriety test.

The field sobriety test is subjective, unlike the chemical breath test - the administering officer gauges your coordination and ability to drive, taking public safety into account, before determining if you are fit to drive, said Glaeden.

Going against what Hastie would advise, one student participated - and passed - field sobriety test despite admitting he was drunk.

"Don't say shit, just smile," said the student, who did not want to be held accountable for past driving behaviors.

Although he lied to the officer about how much beer he had consumed that night (he insisted he "hadn't had a drop"), the student believes the outcome was fair.

"I think that if I was an officer and [a suspicious driver] passed the sobriety test, that means he's probably fine to drive."

But maybe this student just got lucky.

Hastie said he noticed a difference in the way college students suspected of drinking and driving were treated.

"Courts generally treat college students a little bit better," said Hastie. "[There is an] unspoken sentiment that you don't want to punish college students for the rest of their lives."

That's not to say, of course, that they aren't pulled over or convicted of DUIs or OVIs, Hastie added.

"If you drink alcohol, and get behind the wheel, it's an equal opportunity offense," said Glaeden."

The simplest advice to follow
"I don't want to drink and drive," said the student who had been intoxicated when he got behind the wheel. "But when you drink you make bad decisions."

"That's the problem with alcohol. It's a legal drug and it's pushed," said Glaeden, citing advertisements and happy hours. "But the first thing is that it impairs your judgment. You think it's okay to drive."

If you find yourself in the back of a cop car after getting behind the wheel, Glaeden's advice: "Consult an attorney."

According to the attorney: "Rule number one is don't freaking drink and drive," Hastie said. "Then we don't have to go through these shenanigans."

DUI or OVI
"Same animal, different name - known as drunk driving," Franklin County Municipal Court Judge Carrie Glaeden explained.

Driving Under the Influence implies motion, Glaeden continued, while Operating a Vehicle while Intoxicated simply means keys are in the ignition - whether the engine is running or not. The same penalties apply to both charges. For those who sleep in their cars until sobriety regained, Glaeden said to put the keys in the glove box and get in the back seat of the car to avoid an OVI charge.

If you have any legal questions about DUI/OVI, you may contact Ed Hastie at 614-488-2800 or ed@hastielegal.com

Originally Published: November 11, 2009

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