When a police officer arrests a driver suspected of being under the influence of alcohol or drugs, the officer may request that the driver take a breath, blood or urine test. Under Ohio law, if the person refuses to take a test, his driving privileges are suspended for one-year. This suspension is not through a court; it is imposed through the Ohio Bureau of Motor Vehicles and begins as soon as the police officer notifies the BMV of your refusal. Even if a driver who is charged with DUI/OVI is later found not guilty, the suspension remains in effect. (This suspension is different than a suspension that must be imposed by a judge once a person is convicted of DUI/OVI.)
There are many confusing twists and turns that must be followed to understand the law regarding these suspensions, which are called Administrative Law Suspensions, or ALS, and which are imposed by the Ohio BMV. While an ALS can be appealed, it is a lengthy and complex process. You would be wise to contact an attorney to represent you after a DUI/OVI arrest and an accompanying license suspension. I have been practicing law in this area for xx years, and can guide you through the legal quagmire of these laws.
In many states, including Ohio, driving a car is considered to be a privilege, not a right. By obtaining a driver’s license, a person is deemed to have consented to being tested for alcohol or drugs if an officer has a reasonable suspicion that the person is violating the DUI law. It is “implied” that you consent to this testing if you are arrested. The police officer has the right to choose which test you should take and he must explain the consequences if you refuse to take the test, namely the ALS suspension. And it is not a defense to argue that you were too drunk to understand the consequences that were explained to you!
In one case, police found evidence that a motorcyclist had crashed his bike after hitting a deer. An officer found the man being treated in an emergency room for broken ribs, a broken wrist, cuts and bruises and a laceration to his head that was still bleeding profusely. His eyes were glassy, his speech was slurred, and the nurses told police he had smelled like alcohol when he was brought in. When the officer spoke to him, he was alert and responsive. The officer asked the man to consent to a blood test, but he refused, telling the officer that he was not the driver of the wrecked motorcycle. The man later tried to argue in court that he was so injured and intoxicated that he did not “voluntarily” refuse to consent to the blood test. But the court disagreed and rejected the defense of “too drunk to understand.” Because there was evidence that the man was awake, alert and speaking coherently when he refused the test, the ALS suspension remained in effect.
Even if you are arrested but later found not guilty, the one-year suspension remains in effect. It is unrelated to the criminal charge. If this occurs, you can request limited driving privileges for the purpose of work, school or medical examinations or treatments, for example.
If you do consent to take the test requested by an officer, and test over the legal limit, an ALS suspension lasting 90 days immediately takes effect. This does not mean that you will be able to drive after 90 days though: if you are convicted of DUI/OVI, your license will be suspended for six months to three years if this is your first offense.
Keep in mind that if you are asked to consent to a drug or alcohol test again, anytime during the next six years, the ALS suspension will increase with each refusal.
Bottom line: If you find yourself having to make the decision as to whether to submit to a chemical test or not, CALL AN EXPERIENCED DUI OVI ATTORNEY. You will be permitted to do so. Put my moblie phone number into your phone: (513) 260-2099. Hopefully you will never have to make that call. But, if the need arises, I can help you.
Scott A. Rubenstein
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