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Ohio Imposes Harsh Penalties for Refusing Breathalyzer
In September the Ohio Supreme Court ruled that the law enhancing the penalties for refusing to take a breathalyzer is constitutional.

Ohio law has become increasingly intolerant of drivers charged with driving under the influence, or as it is more commonly referred to, with a DUI or OVI. The law penalizing drivers suspected of DUI who refuse to submit to a blood, urine or breath test is just one example of how harsh the penalties for drinking and driving in the state have become.

Punishments for Refusing to Submit to a Breathalyzer

Ohio is an implied consent state. This means that as a condition of holding a driver's license in Ohio, drivers have given consent to the police to perform a breathalyzer or other chemical test if arrested for a DUI/OVI (R.C. §4511.191).

Taking it a step further, the statute enhances the penalties for a DUI if the driver refuses to submit to the chemical test. Before the law was changed, drivers who refused the breathalyzer only faced administrative penalties, but under the changes, they also now face increased criminal penalties as well.

Under R.C. 4511.19(A)(2)(b), a driver who refuses to submit to a breath test and who has one prior conviction for DUI within the past 20 years faces:

  • Mandatory minimum of 6 days in jail or 3 days in jail plus a 72 hour driver intervention program (DIP)
  • Mandatory 1 year administrative license suspension (ALS) imposed by the Bureau of Motor Vehicles. The BMV imposed ALS increases for subsequent refusals.
  • Minimum 6 month court ordered license suspension (ALS) with maximum 3 year suspension
  • Fine between $375-$1075
  • Optional drug and alcohol treatment and education program

The amount of mandatory jail time and the length of the license suspension period increase for subsequent offenses. Drivers who who are charged with a second DUI within 6 years, who refuse the breathalyzer test and who have one prior conviction for DUI within the past 20 years face:

  • Mandatory minimum of 20 days in jail
  • Minimum 1 year ALS with maximum 5 year court imposed driver’s license suspension
  • Fine between $525-$1625
  • Mandatory 90 day immobilization of vehicle used in commission of the DUI (if registered to the offender)
  • Mandatory 90 day vehicle license plate impoundment
  • Both special license plates and interlock required during any period of time that limited driving privileges are imposed.

In comparison, a driver receiving his or her second DUI conviction within six years of the first conviction who did not refuse the breathalyzer only faces half of the time in jail — 10 days. The other penalties, including the ALS, fines, plate impoundment and vehicle immobilization, remain the same regardless if the driver refused to take the breathalyzer.

The amount of jail time for offenders with two or more previous DUI convictions within a six year period doubles if the drivers refused the breathalyzer on their most current conviction. For example, drivers with two previous DUI convictions who refuse the breathalyzer will receive a mandatory minimum of 60 days in jail; their counterparts who did not refuse the test will receive a mandatory minimum sentence of 30 days.

Ohio Supreme Court Rules Statute is Constitutional

This past year, there was a constitutional challenge brought against the state law that requires judges to impose harsher penalties on repeat DUI offenders who refused to submit to breathalyzers. The challenge claimed that R.C. 4511.19(A)(2) violates the federal 4th Amendment protection against unreasonable search and seizures as well as state and federal due process rights. The Ohio Supreme Court, however, ruled that R.C. 4511.19(A)(2) is constitutional and does not violate the provisions under either the state or federal constitution.

In State v. Hooper, defendant Corey Hooper was pulled over by a police officer after the officer saw him cross the center line. The officer smelled alcohol on the defendant's breath and the defendant admitted he had been drinking. After Hooper performed poorly on field sobriety tests, the officer arrested him for driving under the influence. At the police station, the officer attempted to administer a breathalyzer, but Hooper refused to take the test. Subsequently, Hooper was charged with a violation of R.C. 4511.19(A)(2) and faced enhanced penalties for having a previous DUI conviction within the past six years.

At trial, Hooper was found guilty and ordered to serve 60 days in jail, with 40 of those days suspended, making his final total amount of time in jail the mandatory 20 days required by state law. Hooper appealed the trial court's verdict, arguing that the state law was unconstitutional.

On appeal, the appellate court reversed part of the lower court's decision. The court agreed with Hooper that the section of the law enhancing his penalty for refusing the breathalyzer was unconstitutional. The court, however, did not believe the entire statute was unconstitutional and said that Hooper should be sentenced to 10 days in jail for receiving a second DUI conviction within 20 years under R.C. 4511.19(A)(2).

The Ohio Supreme Court disagreed with the appellate court's decision and ruled that the sentencing enhancement law was constitutional. The high court cited several reasons for its decision. The court noted that the state's implied consent law previously had been upheld as constitutional and not a violation of the Fourth Amendment (State v. Starnes).

The court also noted that the US Supreme Court had even gone so far as to rule that a state did not need to get consent from a driver before taking fluids to administer a chemical alcohol test so long as the police have probable cause (Schmerber v. California). The Ohio Supreme Court stated that since the police are not permitted to randomly administer breathalyzers, but first must arrest a driver for DUI based on probable cause, there was no Fourth Amendment violation of Hooper's rights.

Finally, the court noted that it previously had held in a 1968 case that a driver accused of intoxication had no constitutional right to refuse take a reasonably reliable chemical test for intoxication (Westerville v. Cunningham). Thus, in this case, Hooper did not have a right to revoke his implied consent to take the breathalyzer.

Based upon this case law, the court ruled that Hooper's state and federal constitutional rights had not been violated and that he had been properly sentenced to serve 20 days in jail for his second DUI conviction within six years.


The state law enhancing penalties for refusing to take a breathalyzer puts drivers suspected of a DUI in a bad position. On the one hand, if the driver agrees to submit to the test, the driver may be willingly providing the state with the evidence it needs to convict the driver of a DUI. But on the other hand, if the driver refuses to submit to the test and is convicted of a DUI anyway, then the driver faces an enhanced jail sentence for the refusal.

For more information on defending against a DUI/OVI charge, contact an experienced attorney today. With the ever-increasing penalties for driving under the influence, you cannot afford not to have a good defense.

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