If you are stopped for operating a vehicle under the influence (OVI) and the officer asks you to take a blood, breath, or urine test, can you refuse? Generally, you can’t refuse.
Ohio’s “implied consent” law requires all drivers lawfully arrested for an OVI to submit to chemical testing to determine blood alcohol concentration (BAC) or the amount of drugs in the person’s system. For an arrest to be lawful, the officer who stops you must have reasonable grounds to believe you’ve been driving under the influence of alcohol or drugs.
The arresting officer chooses what type of test—blood, breath, or urine—you will be required to take. For your first and second OVI, the officer must explain you’re under arrest, your license will be suspended for refusing a test, and the consequences of failing a chemical test. And in some circumstances, the officer must tell you he or she can use “reasonable force” to compel testing (see below).
The implied consent law doesn’t require drivers to submit to chemical testing prior to a lawful arrest. However, to establish probable cause to make an arrest, some officers might ask you to take a voluntary “preliminary alcohol screening” (PAS) test. A PAS test is typically administered with a handheld breath test device (often called a “breathalyzer”). The PAS is only a screening test and if you are not under arrest, you can legally refuse to take it without penalty.
Once you are under arrest, the penalties for refusing to take a blood, breath, or urine test begin with a one-year Administrative License Suspension (ALS) from the Ohio Bureau of Motor Vehicles (BMV)—this is in addition to any suspension a court may later impose for an OVI conviction.
You could receive a two-year ALS for a second refusal if you had a prior refusal or OVI conviction within the last ten years. The penalty jumps to a three-year ALS for your third refusal or if you have had more than two OVI convictions within ten years. With three or more prior OVI convictions, guilty pleas, or a combination of convictions, pleas, and refusals, the ALS increases to five years.
You have 30 days from when you refuse a test to request a hearing with the BMV to contest a suspension.
If you have pled guilty or been convicted of OVI within the last 20 years, your current refusal carries enhanced penalties. Essentially, the minimum jail sentence of a regular OVI is doubled. Similarly, this refusal will remain on your record for 20 years rather than the ten-year OVI “look-back period.”
Even if you refuse testing, an officer with probable cause can get a search warrant from a judge authorizing an involuntary blood test. In rare “exigent circumstances,” you can be forced to test when a judge is unavailable to issue a warrant. An officer can also administer a test if the driver is unconscious or otherwise unable to refuse.
The wisdom of refusing a post-arrest blood, breath, or urine test depends on the circumstances. Refusal carries serious consequences. And refusal may not help you avoid an OVI conviction—you can be found guilty even without BAC test results. In fact, the prosecution can argue to a jury that your refusal shows consciousness of guilt—that you refused to test because you knew you were intoxicated.