In Ohio, as opposed to most States, you do not have the choice of which one of these three tests (blood, breath or urine) you will take. The officer gets to pick the test(s) he offers you. The only choice you get to make is to agree to submit to the test or refuse the test.

In the past, if a motorist declined to provide a sample of blood, breath or urine, the accused driver’s license would automatically be suspended for declining, however there'd be no alcohol test to use as evidence against the motorist. Now the rules have changed just last year, when the Ohio legislature passed a law stating, if an individual with prior DUI / OVI convictions will not submit to a blood, breath or urine test, “the police officer who made the request may make use of whatever reasonable means are necessary to make sure that the individual submits to the required test of the individuals blood.

The law permitting forced blood tests has been recently considered by an Ohio court of appeals in a case where the individual was arrested for DUI / OVI along with prior convictions. The arresting police officer requested that the accused submit to a breathalyzer test, but the defendant declined, therefore the police officer took the defendant to the hospital for blood to be drawn. the defendant stated over and over again they didn't want their blood drawn as well as physically resisted any attempt to perform the procedure. The police officer restrained the defendants arm while the healthcare professional implanted the needle and drew the defendants blood. The trial court ruled that this blood test will be admissible at trial, thus the defendant plead guilty to OVI / DUI. and appealed to the District Court of Appeals.

Upon appeal, the defendant contended that the law permitting forced blood draws is unconstitutional because a forced blood draw happens to be an unreasonable search and seizure. The Court of Appeals found that the intrusion on an individual’s Fourth Amendment interests is outweighed by the promotion of the government’s genuine interest in public safety. Thus, the court came to the conclusion, any forced blood draw with these kinds of circumstances is constitutional.

An Individual with prior DUI / OVI convictions that refuses a breath, urine or blood alcohol test will be in a losing situation: there are going to be longer Administrative License Suspension for declining the test, and also the results of the blood test will be admissible at trial.

First, you do not get your license back until your case and suspension are over in Ohio.  Do not go to the Bureau of Motor Vehicles and get a state ID. If you do this you may lose all of your driving privileges in the State of Ohio and have to re-test to get them back.  

● In Ohio there are two different driving suspensions when you are charged with an OVI. There is a suspension from Court and a suspension from the BMV. The rules are different for both.  If you are pulled over and charged with an OVI you will receive an Administrative License Suspension which suspends your right to drive immediately.  This suspension must be appealed or stayed in order to get your driving privileges back.  

● A motion for driving privileges must be filed which requires proof of your auto insurance and employment. Some courts impose the requirement of an interlock during the pendency of your case, such as Mentor Municipal Court.  The good news is after the case is resolved, if you are a first offender the interlock will terminate.  In Euclid Municipal Court you must file two motions for driving privileges. The first one while the case is pending and the second after the case is resolved. The court will not grant driving privileges after the case is resolved unless all fines are paid in full.  Medina Municipal Court also follows this policy.  Some courts have their own procedures for filing for driving privileges.  This is true in Berea, Rocky River and Medina. You must use the Court’s forms.

● All ALS suspensions have hard time which means there is an amount of time you cannot drive at all.  You need an experienced lawyer who knows the procedure to get you driving as soon as possible.  For first time offenders the minimum suspension from the court is six months. The BMV suspension varies depending upon the facts and circumstances of your case.  The BMV suspension and the court suspension will run at the same time.  The statute provides for driving privileges for work, school, vocational, medical, drivers license exam, and court ordered treatment for AA.  Most of my clients need driving privileges for personal needs, child care and other issues which can be obtained under the right circumstances.

● Talk to your attorney before you do anything.  What you DON’T know can hurt you and affect your case.  You need to discuss all issues in your case with your attorney before you do anything so you don’t make a mistake.

The government must prove to the jurors beyond a reasonable doubt the person operated a vehicle under the influence.  An arresting officer may charge a defendant with O.V.I. based on observations and evidence like field sobriety tests and chemical tests.

A police officer must have probable cause to pull anyone over. Probable Cause is usually a traffic infraction speeding, stop sign, red light or weaving. When you are pulled over for a traffic infraction the police officer has no evidence that you may be driving under the influence. Once you are stopped, the officer begins gathering evidence against you for OVI/DUI. If you do not give him the evidence I can always win a charge of DUI/OVI.

Examples of giving evidence are (1) engaging in conversation with the policeman. By doing this he hears your speech hears your thought processes and learns whether or not you are impaired. He smells your breath. During the process he also views your eyes to see if they are red, bloodshot, or watery.

If you engage in a conversation you are giving him evidence to use against you. If he observes slow or slurred speech or smells an odor of alcohol he then goes to the next step (2) license, insurance, and registration. Have this ready. If you search for it, fumble through a wallet or purse, or cannot find it this is another strike against you.

Never admit that you consumed alcohol. Admission is another strike against you. If you have given him enough evidence he will ask you to perform Field Sobriety Tests. There is no legal obligation or requirement to perform these tests. Do not take Field Sobriety Tests. Again you are giving him evidence against you. Finally, do not try to justify your conduct. Everything you say will all be written down in a police report and used against you. Once he has made a decision to charge there is nothing you can say or do to avoid it so do not say anything. Be polite and cooperative. Do not take a breathalyzer test and call a skilled Cleveland Ohio DUI defense lawyer.

Should I submit to the field sobriety tests?  

The answer is NO.  There is no legal requirement in the State of Ohio for you to take field sobriety tests.  There are no consequences if you refuse to take them, so do not take them.  Be polite and cooperate and refuse to take any field sobriety tests.  Don’t even start to take them! The police will threaten and try to convince you to. The National Highway Traffic and Safety Administration (NHTSA) designed field sobriety tests to prove that you are intoxicated. They are designed for you to fail.  By taking these tests you only give the prosecution more evidence against you. You are testifying against yourself, DO NOT DO IT.  

If you’ve already been arrested and charged with an OVI don’t worry, I can help.  I have taken the 24 hour NHTSA field sobriety test course (FST).  If you have already taken the FSTs I will obtain your dashcam video for review.  I find that police officers make mistakes in performing the field sobriety tests. If they make a mistake the tests cannot be used against you.

Officers make mistakes in giving these tests in two ways:

1.) they do not give the tests properly and;

2.) they do not score the tests properly.  

After I review your field sobriety tests the police say that you failed, I often find that you have passed the test.  If that happens the test cannot be used against you in Court and the charges may be reduced or dismissed.  In order for the test to be used against you the officer must perform the test in substantial compliance with NHTSA standards.  If the officer makes mistakes, you have to file a Motion to Suppress (Evidence) to throw the test results out. 

Should I submit to the breath test? 

If you take a breath test and blow over .08 you will receive a second charge under the OVI statute.  It is illegal to drive if your blood alcohol is greater than .08 in the State of Ohio.
 
By taking the breath test called BAC and blowing over .08:

1.) You prove the state’s case against you for BAC.  I cannot advise you not to follow the law and refuse to take the breath test, but you are incriminating yourself if you take the test and blow over .08.  

2.) Even worse, if you blow over a .17 all of the penalties are doubled.  

3.) You should know that there are consequences if you refuse to blow.  The Bureau of Motor Vehicles will automatically suspend your license for one year.  Once you are pulled over and the police get you out of the car to perform field sobriety testing, the officer has already made a decision to charge you with OVI. You are going to be arrested and your license will be suspended.  If you blow over the legal limit you are going to be charged with a second DUI violation, (BAC). 

Either way they are going to get you driving privileges, whether you blow or don’t blow, whether you take the field sobriety tests or don’t take the field sobriety tests.  You have put yourself into a better position if you don’t take the Field Sobriety Tests or the breath test because the State does not have as much evidence to use against you.  If you do not take a breath test you avoid the second DUI charge and make it much more difficult for the prosecution to prove their case.