One of the most frequently asked question posed to OVI/DUI attorneys is whether or not you should refuse a breathalyzer test if you are pulled over for an OVI/DUI. When dealing with Ohio DUI/OVI charges, there are two things typically done by police officers. If you refuse the breathalyzer test, the officer will usually fall back on what is referred to as an “(A)(1)(a) OVI/DUI.” (referring to Ohio Revised Code 4511(A)(1)(a)).
Under this Ohio law, the alleged impairment is shown by subjective circumstantial evidence. The officer at the scene will usually testify as to their observations of your driving, balance, alcohol smell, slurred speech, conduct, or attitude in establishing impairment. Sometimes lawyers will say that you should refuse a breathalyzer and the main reason why in our opinion is that it is generally not as easy to establish your guilt or innocence when the evidence is based on this observations. If you plan to take your case to trial, a typical jury might have jurors who disagree on when a defendant is actually “impaired” by alcohol or other prohibited chemical substance. The circumstantial evidence may not be enough without the breathalyzer test results. Without a more scientific breathalyzer measurement, it can be difficult to convict and this may work in your favor when either working out a deal with the State or otherwise defending your innocence at trial.
There is no hard and fast rule that without this breathalyzer test evidence, the State cannot proceed. The State can and certainly does prosecute individuals who refuse breathalyzer tests relying solely on the Officer’s observations. It is the testimony of the police officer that will be central to the case and if there are concerns as to the efficacy of their testimony when they simply don’t have the hard evidence (i.e. the chemical test to get the conviction beyond a reasonable doubt) the case against you may simply be harder to make.
Having the results of a chemical test, however, changes everything. The per se DUI/OVI charge found in either O.R.C. 4511(A)(1)(d) or (h) (which involve the alcohol breath test) will be provided to the prosecutor. This occurs when the you agree to take the chemical test after arrest. The test may not only be alcohol but also blood or urine samples. If positive, this test will become conclusive proof of your impairment while driving a vehicle. The most used testing device is the breath machine. So, deciding to “blow” or not is a complicated decision.
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