An OVI arrest is terrifying. At the heart of any OVI or DUI charge in Columbus is the allegation that the driver was impaired and/or was driving with a higher amount of alcohol or drugs — even legal prescription drugs — in his or her blood than is allowed under Ohio law. There are several DUI tests that might be used by law enforcement officers to gauge how impaired a driver is or what the alcohol or drug content of a person’s breath or blood is at the time he or she is pulled over.
How Alcohol Affects the Body
When you drink alcohol, about 20 percent of it passes through your stomach walls and the rest of it gets absorbed into your bloodstream through your digestive tract. How fast alcohol is absorbed into your blood will be affected by factors such as your gender, weight, rate of consumption, and the number of drinks. Women tend to absorb alcohol faster than men, and skinnier people will become intoxicated faster than heavier people as a general rule. Drinking on an empty stomach also can speed up the process of absorbing alcohol into your bloodstream.
It’s the alcohol in your bloodstream that many of the tests administered by police are designed to measure. Once alcohol hits your bloodstream, it moves throughout your body. When alcohol reaches your brain, it alters how your brain sends messages to other parts of your body, and that can affect your ability to think clearly, your movements, your speech, your behavior, and your emotions.
When you refuse to give a breath, blood, or urine sample, there are legal penalties under Ohio law. Learn and better understand why and what could happen to you if you decline to agree to a test.
Implied Consent and Refusal
In Ohio, when you get a driver’s license you are considered to be giving your consent to submit to BAC testing when you’re suspected of driving under the influence. Ohio Revised Code 4511.191 requires you to submit to breath, blood, or urine testing upon the request of police when you’re arrested for OVI / DUI when the officer has reasonable grounds to believe that you are impaired by alcohol or drugs.
When you refuse to give a breath, blood, or urine sample, there are legal penalties under Ohio law. The statutory penalties for refusing to submit to a breath, blood, or urine test are:
- First refusal — One-year license suspension
- Second refusal — Two-year license suspension
- Third refusal — Three-year license suspension
- Subsequent refusals — Five-year license suspension
A breath test machine calculates the amount of alcohol in a sample of the person’s breath. When you blow into a breathalyzer machine, the machine uses infrared light to detect alcohol. Alcohol absorbs infrared light, and the machine gauges how much infrared light is absorbed and uses that to calculate your BAC.
The Ohio Department of Health must approve breath test machines before they can be used by police in the state. There are a few types most commonly used: the BAC Datamaster, Intoxilyzer 5000, Intoxilyzer 8000. The health department has specific regulations for how breath test machines must be maintained and calibrated, how tests should be administered, how records should be kept, and how operators must have permits. Tests using these machines typically are administered at the police department, and these results may be used against you in court.
Breath samples have to be taken within three hours of the time you’re pulled over. There are a number of factors that can affect the results of a breath test. For example, if you vomit or burp right before the test that can lead to a reading that is higher than your actual BAC.
It’s been the law in Ohio for some time that people accused of OVI / DUI can’t challenge the overall reliability or validity of breath-testing machines. However, a 2013 case may open the door for more breathalyzer challenges, and in particular challenges to the reliability of the Intoxilyzer 8000.
Portable Breath Tests
An officer may have a handheld breath machine when he or she pulls you over, but the results of breath tests using portable machines are not admissible in court as evidence of your OVI / DUI because they often can be unreliable. However, some jurisdictions in the state will allow the results of portable breath tests to be used as evidence that the officer had probable cause to arrest you.
You are not required to submit to a breath test using a portable breathalyzer, and in Columbus, you can’t lose your license for refusing to submit to a portable breath test.
Blood and Urine Tests
A blood or urine test may be the next step police take when you refuse to take a breath test, but most often they are used when you’re suspected of driving under the influence of drugs. If you’re on prescription drugs, those are likely to show up in a blood or urine test, and if the drugs are of a type that could impair your driving then you can be charged with OVI / DUI even though you were taking the drugs lawfully as prescribed.
Like a breath sample, a blood or urine sample also must be collected within three hours of the time you are alleged to have been driving under the influence. Police should first ask you to consent to give a blood or urine sample. If you refuse, they may ask a judge for a warrant compelling you to provide a sample.
If you have two or more prior OVI / DUI convictions, then current Ohio law says that police can use “any reasonable means necessary” to take your blood sample, and police are the ones who get to decide what’s reasonable. However, the U.S. Supreme Court case Missouri v. McNeely, 2013 U.S. LEXIS 3160 (2013), may call that provision into question and possibly render it unconstitutional. In McNeely, the court ruled that warrantless blood draws without the person’s consent are a violation of the Fourth Amendment right to be free from unreasonable searches and seizures.
When an officer wants to arrest you for OVI / DUI, know that you have arrest rights. He or she needs probable cause to do that. The officer may ask you to go through a series of standard field sobriety tests designed to test whether your balance, coordination, or vision are impaired, or in other words to find probable cause to charge you with OVI / DUI. An inability to perform the tasks — even something that seems reasonable like struggling a little to stand on one leg because you lack the strength in your leg to balance that way — may give the officer an opening to arrest you.
You don’t have to submit to the field sobriety tests, but if you refuse you may be arrested anyway and your refusal may be used when the court is considering whether probable cause existed for your arrest. If you do submit to the tests, expect that the results will be used against you in court. However, these tests can be quite unreliable and a skilled DUI defense attorney may be able to successfully challenge the results in court.
The standard field sobriety tests are:
- Walk and Turn — In this test, the officer will ask you to walk heel-to-toe in a straight line, turn, and come back. Typically, he or she is watching to see if you can maintain your balance and follow instructions. There are a number of ways you could give clues that indicate impairment that might be totally unrelated to whether you consumed alcohol. You could be deemed impaired by starting too soon, using your arms to maintain your balance as you walk a narrow line, stumbling as you make the tight turn, stopping at any point during the test, taking strides that are too big, or taking the wrong number of steps.
- One Leg Stand — In this test, the officer will ask you to count while standing on one leg. The idea is to see if you can perform physical and mental tasks at the same time. However, all it takes is being a little out of shape to look like you’re impaired with this one, regardless of whether you’ve had anything to drink. If you sway, use your arms to keep your balance, hop, or lower your other foot, that may indicate to the officer that you are impaired.
- Horizontal Gaze Nystagmus — In this test, the officer will hold up a pen or a finger and ask you to follow the motion with your eyes and without moving your head. The officer will be looking to see if your eyes make any involuntary movements that might indicate you’re intoxicated. This is supposed to be the most reliable of the three standard field sobriety tests, but there still are dozens of external factors that could cause you to be deemed impaired, like having had one too many cups of coffee.
With the walk and turn or one leg stand tests, two or more “clues” — such as stumbling, wobbling or putting your foot down — are considered an indicator that your BAC is likely to be .10 or higher. This conclusion is believed to be accurate about 68 percent of the time with each of these tests. When an officer performs the horizontal gaze nystagmus test, he or she is looking for four or more clues, or an inability to complete the test, as an indicator that your BAC is likely to be .10 or more. This test is believed to be accurate about 77 percent of the time.
Accuracy of Test
There is no such thing as a test that is 100 percent effective at calculating your BAC or determining your level of impairedness. The results of a breath, blood or urine test can be affected by outside factors that have nothing to do with how much alcohol — if any — was in your body. Field sobriety tests are very subjective and come down to the interpretation of the officer administering the test, but also can be affected by external factors that have nothing to do with whether you’re impaired by alcohol. Simply having a head cold could throw off your balance and cause you to “fail” a field sobriety test.
If you’ve been charged with OVI / DUI based on the results of one of these tests, an experienced criminal defense attorney may be able to help. There may have been issues with the way the tests were administered, with how samples were collected or processed, or with how machines were maintained or calibrated. A good Columbus DUI lawyer can review the facts of your case and may see ways to fight your charge and possibly secure a dismissal or reduction in penalties.
At Luftman, Heck & Associates, we can help you confront the Ohio court system from your arrest through to your trial. By advocating for your rights and thinking strategically about your case defense, we will maximize your chances of obtaining a positive case result. If you’ve been charged with OVI, contact us today at (614) 500-3836 for a free and confidential consultation of your case.
Charged with OVI? Talk to an Experienced Columbus DUI Lawyer Today.
If you’ve been charged with a OVI / DUI, it’s important to know what you’re up against. If you have any questions left unanswered by this page, or if you need a competent, experienced Columbus DUI attorney to fight for you in court, please contact us at (614) 500-3836 or via email at [email protected].