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OVI Test Refusal

Refusing a chemical test can lead to stricter penalties than failing the test itself. Under Ohio’s implied consent law, refusal of a chemical test results in an automatic Administrative License Suspension (ALS) that starts immediately and lasts longer than the suspension for a failed test. This can leave drivers facing significant disruptions to their lives, even before their case is heard in court.

Cincinnati OVI Refusal Attorney

While advice given by lawyers is mixed regarding on-site breath testing, chemical tests are absolutely non-negotiable. If you are asked to take a blood or urine test after a traffic stop, you are legally required to do so under Ohio’s implied consent law. However, if the test was conducted after an improper stop, or the chain of custody was disrupted, the prosecuting attorney may not have a leg to stand on.

Proving that your stop was illegal, that there was something faulty with the machine, or that you were not informed of the consequences of your refusal is difficult. It takes an aggressive, experienced OVI defense attorney to get the results you need, fast.

The Wieczorek Law Firm, LLC, is led by former Ohio prosecutor Mark Wieczorek. Attorney Wieczorek has over 16 years of experience, and is ready to hear your case. The Wieczorek Law Firm, LLC serves Hamilton County, including the major Cincinnati metropolitan area. Call Mark Wieczorek at (513) 317-5987 for a free consultation or complete our contact form.

Overview of OVI Test Refusal in Ohio

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OVI Test Refusal under Ohio Law

Ohio law governs OVI test refusals under its implied consent statute, ORC Section 4511.191. This law states that anyone operating a vehicle in Ohio implicitly agrees to submit to chemical testing—such as breath, blood, or urine tests—if lawfully arrested on suspicion of OVI.

First-Offense OVI Test Refusal

Under Ohio Revised Code Section 4511.191, first-time OVI test refusal results in a one-year Administrative License Suspension (ALS). Drivers may also face a first-degree misdemeanor OVI charge under Section 4511.19(A)(1). Additional penalties include reinstatement fees, proof of insurance, and potential court-ordered programs. These penalties occur regardless of whether the driver is later convicted of OVI in criminal court.

Second-Offense OVI Test Refusal

A second refusal within ten years of a prior OVI offense or test refusal leads to a two-year ALS under Section 4511.191. The driver also risks enhanced OVI charges with mandatory jail time under Section 4511.19(A)(2). Courts may impose stricter penalties, including fines and extended ignition interlock device requirements.

Habitual Offender or Third-Offense OVI Test Refusal

For those with two or more prior convictions within ten years, a test refusal triggers a five-year ALS. Under Section 4511.19(G), these cases often escalate to felony charges. Habitual offenders face lengthy jail terms, substantial fines, and permanent license revocation in severe cases. Courts may also order substance abuse evaluations and treatment as part of sentencing.

Defenses to OVI Test Refusal Charges in Ohio

Challenging the Basis for the Traffic Stop

Defense attorneys often argue that the initial traffic stop lacked reasonable suspicion. If the officer cannot justify the stop with valid evidence, all subsequent actions—including the test request—may be invalid. Surveillance footage, witness testimony, or inconsistencies in police reports can strengthen this defense.

Inadequate Explanation of Implied Consent

Under Section 4511.192, officers must inform drivers of the consequences of refusal. Missteps, such as failing to provide clear warnings or miscommunicating the driver’s rights, can render the refusal inadmissible. This defense requires a close review of bodycam footage and arrest records.

Medical Inability to Submit to Testing

Some drivers refuse chemical tests due to medical issues, such as respiratory conditions preventing breathalyzer compliance or needle phobia for blood draws. Providing medical records or expert testimony can demonstrate that the refusal was not willful.

Unlawful Use of Force to Obtain a Blood Sample

Ohio law permits law enforcement to obtain warrants for blood tests, but excessive force or failure to follow warrant protocols violates constitutional protections. Evidence obtained through such means may be suppressed, reducing the strength of the prosecution’s case.

Misunderstanding of Refusal by Non-Native Speakers

Non-native English speakers may not fully understand the implications of refusal. Language barriers or the lack of an interpreter can lead to unintentional refusals. In such cases, defense attorneys argue that the refusal was not a conscious decision, casting doubt on its validity.

Lack of Probable Cause for OVI Arrest

If the officer did not have sufficient evidence to arrest the driver for OVI, any subsequent request for testing becomes invalid. This defense hinges on disproving claims of impairment, such as erratic driving or failed field sobriety tests.

Miscommunication During the Testing Process

Drivers confused by conflicting instructions from law enforcement may appear to refuse testing unintentionally. Attorneys can present evidence that highlights unclear communication, reducing the credibility of the prosecution’s claims.

Coercive Tactics by Law Enforcement

Threats or undue pressure from officers can lead to an involuntary refusal. Documenting instances of coercion through witness testimony or audio recordings can support a defense that the driver was unfairly forced into noncompliance.

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How Administrative License Suspensions Interact with Criminal Penalties

Ohio’s OVI laws impose both administrative and criminal penalties for test refusal, and understanding the interaction between these systems is critical. The Administrative License Suspension (ALS) begins immediately after the refusal and is separate from the criminal case, which may take months to resolve. This dual-track system means that even if the criminal charges are reduced or dismissed, the ALS may still apply. Drivers may also face overlapping penalties, such as mandatory jail time and fines under Ohio Revised Code Section 4511.19.

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Ignition Interlock Device Requirements After Refusal

In many OVI cases involving test refusal, Ohio courts may require the installation of an ignition interlock device as a condition for restoring limited driving privileges. This device, which measures the driver’s blood alcohol concentration before allowing the vehicle to start, must often be installed at the driver’s expense. The costs include the device itself, monthly monitoring fees, and maintenance. Additionally, failing to comply with interlock device requirements—such as attempting to tamper with it—can result in further penalties, including extended suspensions or criminal charges.

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Rights During Police Stops and Chemical Testing Requests

Drivers have specific rights during an OVI stop, which are critical to understand when faced with a test refusal charge. Under Ohio law, individuals have the right to remain silent and request an attorney before answering questions or agreeing to chemical testing. Additionally, drivers may request an independent chemical test at their own expense after being tested by law enforcement, as outlined in Ohio Revised Code Section 4511.192. However, any form of noncompliance, such as arguing with officers or refusing to provide basic information like identification, can escalate the situation and be used against the driver in court.

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Local Rules Relating to Refusal of Testing: Cincinnati Police Department Procedure 12.235

Cincinnati Police Department Procedure 12.235 provides specific guidelines on handling situations where individuals refuse chemical tests—blood, breath, or urine—in Operating a Vehicle Under the Influence (OVI) investigations. The rule ensures that refusals are documented properly and that the legal and administrative consequences of such refusals are enforced.

Implied Consent and Refusal Consequences

Under Ohio Revised Code Section 4511.191, all drivers in Ohio are subject to implied consent laws, meaning they agree to chemical testing when lawfully arrested for OVI. Cincinnati Police Department Procedure 12.235 enforces these laws by requiring officers to inform the individual of the consequences of refusing to submit to a chemical test, including:

  • Immediate Administrative License Suspension (ALS)
  • Use of the refusal as evidence in court
  • Potential enhancement of penalties for repeat offenders

The ALS is issued at the scene, and the individual’s license is seized if applicable. The refusal is recorded on the ALS Form BMV-2255, which must be signed by a witness if the individual refuses to sign.

Informing the Individual of Refusal Consequences

Cincinnati Police Department Procedure 12.235 requires officers to read the “Consequences of Test and Refusal” section of Form BMV-2255 to the individual in the presence of a witness. This step is critical to ensure the individual is fully aware of the legal implications of their refusal. Officers must document whether the individual signed the form or refused to do so.

Handling and Documentation of Refusals

The rule emphasizes proper documentation of a refusal to ensure that it is admissible in court. Officers must:

  • Record the refusal on Form BMV-2255
  • Indicate the refusal on the Uniform Traffic Ticket (MUTT)
  • Include the refusal in the summary section of the OVI Investigation Record (Form 495)
  • Notify the Traffic Unit to process the refusal, particularly in cases involving high-risk offenders or felony charges

The refusal and related forms are included in the OVI case jacket, which is reviewed by supervisors for accuracy and completeness.

Administrative License Suspension (ALS) Procedures

When an individual refuses testing, Cincinnati Police Department Procedure 12.235 requires the officer to:

  1. Seize the driver’s license, if applicable.
  2. Complete and sign the ALS form in the presence of a witness.
  3. Provide the individual with a copy of the ALS form.
  4. Route the original ALS form and the driver’s license to the Traffic Unit for further processing.

If the individual is not in possession of their driver’s license at the time of the arrest, they are instructed to surrender it to the nearest police district as soon as possible.

Refusals in Specific Circumstances

Cincinnati Police Department Procedure 12.235 accounts for unique circumstances involving test refusals:

  • Multiple OVI Offenses: In cases where an individual has multiple prior OVI convictions, officers may seek a search warrant to compel a blood sample. However, if the individual refuses even after a warrant is obtained, further attempts to obtain the sample cease, and the refusal is documented.
  • Hospitalized Individuals: If the individual is hospitalized and refuses testing, officers follow hospital protocols and document the refusal on all applicable forms.

Juvenile Offenders and Refusals

For juvenile offenders, Cincinnati Police Department Procedure 12.235 requires officers to obtain parental or guardian consent before conducting chemical tests. If a juvenile refuses testing, the officer must still document the refusal and process the ALS as they would for an adult.

Supervisory Review and Compliance

All refusals must be reviewed by a supervisor before the end of the officer’s shift. The supervisor must ensure that:

  • Forms are complete and accurate.
  • The refusal is properly noted in the testing site logbook.
  • Evidence, including documentation of the refusal, is appropriately stored for court proceedings.

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Frequently Asked Questions

  1. What happens immediately after refusing a chemical test?
    Upon refusal, the officer will confiscate the driver’s license, and an immediate Administrative License Suspension (ALS) will be imposed, lasting one to five years depending on prior offenses.
  2. Can a driver challenge an Administrative License Suspension?
    Yes, a driver can appeal the suspension in court under Ohio Revised Code Section 4511.197. However, the appeal must be filed quickly, often within 30 days of the refusal.
  3. Is refusing a test better than taking it and failing?
    Refusing a test can result in harsher penalties, including longer license suspensions and additional charges under Ohio law, particularly for repeat offenders.
  4. What is the cost of reinstating a suspended license?
    Reinstatement fees vary, but they typically include a $475 reinstatement fee and proof of insurance. Additional costs may apply for court-ordered programs.
  5. Can a driver refuse all types of chemical tests?
    A driver can refuse any test—breath, blood, or urine—but each refusal carries the same penalties under Ohio Revised Code Section 4511.191.
  6. Does a refusal guarantee that no chemical test will be performed?
    No, law enforcement can obtain a warrant for a blood test in certain cases, particularly for repeat offenders or accidents involving injuries.
  7. Can a driver’s refusal be used against them in court?
    Yes, a refusal can be presented as evidence of consciousness of guilt during an OVI trial.
  8. Can a refusal affect insurance rates?
    Yes, an OVI test refusal is often reported to insurance companies and may result in higher premiums or policy cancellation.

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Additional Resources

Ohio Revised Code Section 4511.191 (Implied Consent) – This source provides the official text of Ohio’s implied consent law, which outlines the requirement for drivers to submit to chemical testing when suspected of OVI. It includes details about penalties for refusal, administrative license suspensions, and the process for challenging such penalties.

Cincinnati Police Procedure 12.235 (OVI Processing & Arrest) – This source outlines the Cincinnati Police Department’s policies and procedures for processing and arresting individuals suspected of OVI. It includes instructions for chemical testing, arrest procedures, and handling of evidence.

Ohio Bureau Of Motor Vehicles: Suspensions & Reinstatements – This source provides information on administrative license suspensions and reinstatement procedures for OVI offenses in Ohio. It explains penalties for test refusals and positive tests, including suspension durations, reinstatement fees, and required proof of insurance.

Ohio Legislative Budget Office Report on OVI Convictions – This report from the Ohio Legislative Budget Office examines trends in OVI-related convictions in Ohio over recent years. It includes statistical data on conviction rates, penalties, and driver behavior.

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Hire an Attorney for OVI Test Refusal in Hamilton County, OH

The Wieczorek Law Firm, LLC, is led by former Ohio prosecutor Mark Wieczorek. Attorney Wieczorek has over 16 years of experience, and is ready to hear your case. The Wieczorek Law Firm, LLC serves Hamilton County, including the major Cincinnati metropolitan area. Call Mark Wieczorek at (513) 317-5987 for a free consultation or complete our contact form.

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