Implied Consent

Ohio law requires you to take a blood, breath, or urine test if you are arrested for an OVI. Ohio’s “implied consent” law says that if you are lawfully arrested by an officer who has probable cause to believe that you have been operating under the influence, then you consent to taking a chemical test of your blood, breath, or urine for the purpose of determining your blood alcohol content (BAC). The test must be taken within two hours of driving and the officer gets to choose which test you take.

You could be arrested for an OVI even if you are not driving. If you have physical control of a vehicle while under the influence, then that can be enough for an officer to arrest you. In Ohio, physical control of a vehicle means being in the driver’s seat and having the keys, even if the keys are not in the ignition.

You can read Ohio’s implied consent law in the Ohio Revised Code 4511.191. For more on physical control of a vehicle, see Ohio Revised Code 4511.194.

Refusing to Take the Test

Once you are arrested, you can’t refuse a test without facing the consequences of refusal. The officer does not need to tell you the following penalties for refusing a test. You will lose your license for one year if this is your first refusal, for two years for your second refusal within six years, and for three years for your third refusal within six years. For any subsequent refusal, you will lose your license for five years. If you have had any prior OVI convictions, then the state will count those against you by increasing the time of your suspension. Also, you have to pay a $475 fine to get your license back after you finish your term.

If you have been convicted of an OVI two or more times within six years of your last offense, the officer can use any reasonable means to make you take any chemical test and should tell you this before asking you to take one. Whether the means are reasonable will depend on the particular situation, but an officer holding a person’s arms down by the wrists so a nurse could draw blood is a good example of acceptable restraint. You can find this example in the case State v. Slates, 2011 Ohio 295 (2011). Once you submit to the blood test, then you have the right to have a medical professional of your choice take an additional test, and the officer should tell this, too.

Should You Refuse to Take a Mandatory OVI Test in Ohio?

It does not help you to refuse to take a blood, breath, or urine test when you are arrested in Ohio because an officer can use reasonable force to make you take one. Although the penalty for a first OVI in Ohio is high - you face up to three days in jail, a fine of at least $375, and your license will be suspended for any time between six months and three years – you may not be able to avoid these consequences by refusing a test. Even in the unlikely event that no test was possible, so the state does not have proof that your BAC was over .08%, you still could be found guilty of an OVI. In fact, the prosecution can use your refusal against you by arguing that you refused the test because you knew that you were intoxicated and guilty of OVI.

Get Help With Your OVI

If you have been arrested on an OVI charge in Ohio or any other state, get help from an experienced OVI attorney. Unlike other traffic related charges, which might be worth fighting without a lawyer, conviction for an OVI has serious consequences – especially if the incident involved injury to people or property, or if it’s your second or subsequent OVI. To avoid or reduce the consequences, your best bet is to find an attorney who is knowledgeable about your state’s laws and about how the system works in your county’s court.

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