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The Police Marked Me as a “Refusal” on the Breathalyzer Even Though I Tried to Blow. Can They Do That?

breathalyzer refusal tried to blow ovi

In Ohio, if you are pulled over for an OVI and refuse a breathalyzer or other chemical test or test over the legal limit, your license will be automatically suspended under what is called an Administrative License Suspension (“ALS” suspension).

This administrative suspension is through the BMV and is separate from any suspension you might have at the conclusion of your OVI court case.  The court, however, does have the power to terminate the ALS suspension at the end of the OVI case.

 First OVI Offense - Length of ALS SuspensionFirst OVI Offense - Driving Privileges EligibilitySecond OVI - Length of ALS SuspensionSecond OVI - Driving Privileges Eligibility
Test .08 BAC or Higher90 daysNo driving privileges for first 15 days1 yearNo driving privileges for first 30 days
Refused breathalyzer or other chemical tests1 year No driving privileges for first 30 days2 yearsNo driving privileges for first 90 days

So what if you tried to blow but couldn’t due to a medical condition or other issue?  If the police mark you as a “refusal” even though you tried to blow, is there any remedy?

Yes.  You have a right to an administrative license suspension hearing if you believe the suspension you were given was in error.  

However, you must request this hearing within 30 days from the date of the suspension notice.

One example of this is found in State v. Williams, 6th Dist. No. OT-03-020, 2004-Ohio-2453.  In that case, the court held an ALS hearing to decide whether or not the driver refused a breathalyzer test.

The arresting officer said that because the driver stopped blowing into the machine, she refused.  But, the defendant presented evidence that she had esophageal surgery and suffered from anxiety, which made her physically unable to give a proper breath sample.

The court found:

“Unless there is a refusal to comply with the test instructions, a failure to produce an adequate breath sample is not a refusal to submit to the chemical test upon the request of the arresting officer.

It is not a refusal if a person is unable to perform the requested act.  A person may be unable to produce an adequate breath sample due to a physical condition. Sufficient evidence of such condition must be presented at the ALS hearing.”

At an administrative hearing, the court will consider a defendant’s “words, acts, overall conduct and other manifestations of a willingness or unwillingness to take the sobriety test” in determining whether there was a refusal. Andrews v. Turner (1977), 52 Ohio St.2d 31, 36.

If the police marked you as a refusing the breath test but you believe this was wrong, talk to one of our Columbus DUI attorneys about the details of your case at (614) 361-2804.