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The Constitutionality of Breathalyzer and Blood Draws in Ohio OVI Cases

The Constitutionality of Breathalyzer and Blood Draws in Ohio OVI Cases

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In the case of  Birchfield v. North Dakota (579 U.S. ___ (2016), the Supreme Court ruled on the constitutionality of a refusal to submit to warrantless blood alcohol content ((BAC) and blood tests. The Court confronted the following issue: Is the absence of a warrant in OVI/DUI cases violative of Fourth Amendment dictates against improper searches and seizures when administering BAC and blood tests and, if so, can persons suspected of such offenses rightfully refuse testing?

Note: Illegal searches conducted in the absence of a warrant are subject to “the exclusionary rule.” This means that all evidence seized as a consequence of the illegal search is deemed to be “fruit of the poisonous tree,” and therefore, inadmissible at trial.

 In Birchfield, the Court balanced the Petitioners’ privacy concerns against the government’s interest in obtaining the pertinent information.  The Court held that refusal to take a breath (BAC) test (a less invasive means of determining alcohol levels in the system than a blood test), is in the public interest and, therefore, it is a crime to refuse such testing.  In contrast, blood tests are significantly more invasive and reveal details more intricate and personal than BAC tests. Furthermore, the results of a blood test, unlike a simple breath test, are derived from piercing the skin and can be preserved in a vial. BAC tests, on the other hand, require more topical procedures and are not violative of a person’s dignity and privacy. As such, the BAC test, may be administered incident to a lawful arrest (and Miranda rights), without a warrant, since the government has a compelling interest in protecting the public against intoxicated drivers.

When administering a blood test, however, law enforcement must be in possession of a valid search warrant before compelling a suspect to submit to testing. 

Conclusion: Both BAC and blood tests constitute “a search” within the meaning of the Fourth Amendment. In distinguishing the tests, the Court found that warrantless BAC tests are permissible under the compelling-state-interest review standard, while warrantless blood tests are violative of Fourth Amendment protections.

OVI/DUI suspects must submit to BAC tests, even in the absence of a warrant, whereas in the case of blood tests, law enforcement must have a valid warrant, in the absence of which suspects can refuse testing.

Impact of Birchfield on Ohio OVI/DUI Statutory Law:

Pursuant to ORC 4511.19, first time offenders are not affected by the Birchfield decision and will not be penalized for a refusal to submit to BAC or blood tests. However, ORC § 4511.19(A)(2) criminalizes refusals to submit to both BAC and blood tests after being apprised of the driver’s implied consent, pursuant to Ohio law.

ORC § 4511.19(A)(2) provides, in pertinent part:

(2) No person who, within twenty years of the conduct described in division (A)(2)(a) of this section, previously has been convicted of or pleaded guilty to a violation of this division, a violation of division (A)(1) or (B) of this section, or any other equivalent offense shall do both of the following:

(a) Operate any vehicle, streetcar, or trackless trolley within this state while under the influence of alcohol, a drug of abuse, or a combination of them;

(b) Subsequent to being arrested for operating the vehicle…being asked by a law enforcement officer to submit to a chemical test or tests under section 4511.191 of the Revised Code, and being advised by the officer in accordance with section 4511.192 of the Revised Code of the consequences of the person's refusal or submission to the test or tests, refuse to submit to the test or tests.

Therefore, separate from an OVI/DUI charge, a suspect may be subjected to arrest for the refusal to submit to chemical tests, if the suspect has a prior conviction within the last twenty years.

Learn about your rights from an expert OVI/DUI attorney in the state of Ohio.

About The Author
Brian Joslyn
The Joslyn Law Firm is pleased to be accepted as one of Ohio's most qualified criminal defense and OVI attorneys. Our criminal defense lawyers in Columbus have handled over 15,000 criminal cases. Our firm's founding attorney, Brian Joslyn has been recognized by the National Academy of Criminal Defense Attorneys as one of the top ten best criminal attorneys in the state of Ohio. Columbus CEO Magazi ...read more


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