The United States Supreme Court ruled recently on the constitutionality of laws criminalizing the refusal of breath and blood BAC tests. Birchfield v. North Dakota, 579 U. S. ____ (2016).
The Court found that states cannot make it a crime to refuse to submit to a warrantless blood test. States can, however, make it a crime to refuse to submit to a breath test.
This case has implications for O.R.C. 4511.19(A)(2), which criminalizes refusing a chemical test if the driver has a prior within 20 years. Under Birchfield, Ohio can no longer make it a separate crime under 4511.19(A)(2) to refuse to submit to a warrantless blood test.
Laws That Criminalize Breath Test (Chemical Test) Refusal
In many cases, the penalty for refusal of a breathalyzer or other chemical test is suspension or revocation of the motorist’s license. But some states go further than that and actually make it a crime for a driver to refuse to be tested after being lawfully arrested for DUI.
In North Dakota, for example, the standard penalty for first-time DUI offenders is license suspension and a fine. But an offender with a BAC of 0.16% or higher must spend at least two days in jail.
But if the penalty for blowing a high BAC is worse than the penalty for refusing, some states thought that incentivized refusing. And in some States, the refusal rate is high. On average, over one-fifth of all drivers asked to submit to BAC testing in 2011 refused to do so. NHTSA, E. Namuswe, H. Coleman, & A. Berning, Breath Test Refusal Rates in the United States— 2011 Update 1 (No. 811881, Mar. 2014). In Ohio, the refusal rate was almost 40% in 2005 (the last date for which data is available).
Ohio Criminalizes Refusing a Breath Test if You Have a Prior OVI within 20 Years
Ohio doesn’t make refusing on a first offense a separate crime.
But if you have a prior offense within 20 years, ORC 4511.19(A)(2) makes it a separate misdemeanor crime to refuse to submit to a chemical test (blood, breath or urine). Penalties for refusing are below.
Penalties for Second Offense Refusal of Chemical Test
1st in 10 years + 2nd in 20 years + Test Refusal 6 days in jail OR 3 days in jail, 3 days in DIP. If the judge grants unlimited driving privileges with interlock, jail time will be suspended. $375-$1,075
2nd in 10 years + Refusal of Chemical Test 20 days in jail OR 10 days in jail and 36 days house arrest and/or continuous alcohol monitoring $525-$1,625
The North Dakota law at issue in the Supreme Court case similarly made refusal of a chemical test a separate misdemeanor offense.
The question presented to the Supreme Court was whether such refusal laws violate the Fourth Amendment’s prohibition against unreasonable searches.
All of the facts took place in North Dakota, which is subject to different DUI laws than Ohio.
Fourth Amendment: No Unreasonable Searches
All three Petitioners challenged the refusal of a warrantless breath and blood test under the Fourth Amendment as an illegal search.
The Fourth Amendment states:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
This amendment therefore prohibits unreasonable searches.
Previous cases dictate that taking a blood sample is a search as shown by Skinner v. Railway Labor Executives’ Assn., 489 U. S. 602, 616–617 (1989) and Schmerber v. California, 384, U. S. 757, 767–768 (1966).
Therefore, the issue in this case rests on the reasonableness of search. In order to judge the reasonableness of a search, the Court balanced the privacy interests of the Petitioners being tested against the government’s interest in obtaining the BAC results.
Breath Tests Not Intrusive; Blood Tests Are Intrusive
The Court found that breath tests do not significantly impact privacy interests because it is a minimal intrusion (blowing into a straw), it is not an embarrassing procedure, and the results can only be used to show BAC and cannot be preserved (like blood results in a vial).
The Court found that blood tests do significantly impact privacy interests because they require piercing the skin, and the blood sample could be preserved and used to obtain information far beyond the BAC.
Do Government Interests Outweigh these Privacy Concerns?
The Court found that it was the government’s duty to keep the roadways safe, and that drunk drivers pose a serious threat to that safety. Likewise, the government has an interest in deterring drunk driving. Thus, the Court found that government has a great interest in obtaining BAC information.
The Court found that breath tests serve a very important government function. It is also noted that requiring a warrant for every breath test would simply overwhelm the courts, given that there are more than 1 million DUI arrests each year.
Because breath tests are less of a privacy concern and greatly serve government interests, the breath test may be administered after an arrest without a search warrant.
However, because a blood test is so intrusive, police must have a warrant before compelling a suspect to submit to a blood test.
Birchfield Defendant-Petitioner #1: Refused Warrantless Blood Test
In the Birchfield case, Petitioner 1 drove his car off the highway. A state trooper arrived and watched Petitioner 1 try to drive out of the ditch where he was stuck. The trooper smelled alcohol and that Petitioner 1 was slurring his words and struggling to stand steady. Petitioner 1 agreed to take field sobriety tests and performed poorly on each one which included struggling to recite the alphabet and counting backwards.
The trooper then informed Petitioner 1 that he was obligated under state law to submit to a BAC test. Petitioner 1 agreed to the roadside breath test.
These roadside tests are not definitive (not admissible in court) and are used as a guide to see if a more formal test needs to be performed at the station.
Petitioner 1’s roadside test showed that he was heavily intoxicated—more than three times the legal limit of 0.08. He was arrested, read his rights, and was once again informed of his obligation to be formally BAC tested and that refusal would result in criminal penalties including: addiction treatment, jail time, and fines.
At the station, Petitioner 1 refused to have his blood drawn due to a previous citation for driving under the influence. He pled guilty to the misdemeanor violation of the refusal statute. He was sentenced to 30 days in jail, $1,750 in fines, and mandatory participation in a sobriety program.
Conclusion: The court found that Petitioner 1 was criminally prosecuted for refusing a warrantless blood draw. The warrantless search (blood test) was unjustified. Because he was threatened with an unlawful search, his conviction for refusing was reversed.
Birchfield Defendant-Petitioner #2: Refused Breath Test
Petitioner 2 was at a boat launch when state troopers arrived. There were three seemingly intoxicated men that had gotten their truck stuck when trying to remove their boat from the water. One of these men was Petitioner 2. Witnesses claimed that Petitioner 2, who was in his underwear, was the one driving the truck. Petitioner 2 denied driving, but was holding the keys.
He admitted he was drinking, but refused field sobriety tests. The trooper noted the smell of alcohol and Petitioner 2’s bloodshot eyes. The trooper arrested him for driving while impaired.
At the station, Petitioner 2 was informed that he needed to subject to a BAC test or he would face criminal penalties for his refusal. He refused and was charged with a first degree refusal.
Conclusion: Because officers did not need a warrant to administer the breath test, Petitioner 2 could be criminally prosecuted for refusing. His conviction was upheld.
Birchfield Defendant-Petitioner #3: Consented to Blood Test & License Was Suspended
Petitioner 3 was spotted by a police officer after failing to turn into a driveway, almost hitting a stop sign, and coming to a stop on the road. The officer went to the car and saw and empty wine glass in the car and Petitioner 3 smelled of alcohol. The officer had Petitioner 3 step out of the car, and when he did, he could barely keep his balance. Petitioner 3 was arrested for driving while impaired.
At the station, Petitioner 3 was informed that he needed to have his BAC tested or he would be criminally charged for refusing the test.
Petitioner 3 consented to having his blood tested. His BAC was 0.250. Petitioner 3’s license was suspended for two years.
Conclusion: Here, Petitioner 3 was not prosecuted for refusing a test. He submitted to the blood test after police told him that the law required him to submit. The Court remanded the case to determine whether his consent was “voluntary” given that he was incorrectly told he was required to submit or else face new criminal charges.
What Does This Case Mean for Ohio OVI Cases?
If a driver has a prior DUI / OVI offense within the past 20 years, ORC 4511.19(A)(2) makes it a separate misdemeanor crime to refuse to submit to a chemical test (blood, breath or urine).
Under Birchfield, the state can still charge a driver with criminal refusal under 4511.19(A)(2) if the driver refuses to submit to a breath test.
But if he is asked to take a blood test, the driver cannot be charged under (A)(2) for refusing to submit.
Thus, if you have been charged under ORC 4511.19(A)(2) for refusing to submit to a blood test, talk to one of our attorneys about your case. You may have been wrongfully charged given this recent Supreme Court precedent.
Our attorneys can be reached at (614) 361-2804.