The United States Supreme Court, in a trio of cases (Birchfield v. North Dakota, Beylund v. Levi and Bernard v. Minnesota), recently ruled on the issue of the constitutionality of laws criminalizing the refusal of breath and blood tests. The Court issued one opinion for all three cases under the caption of Birchfield v. North Dakota and held that states cannot make it a crime to refuse to submit to a warrantless blood test. However, the states can criminalize the refusal to submit to a breath test.

This case implicates Ohio law. Ohio Revised Code (ORC) 4511.19(A)(2) criminalizes refusing a chemical test if the driver has a prior DUI / OVI within the past 20 years. However, pursuant to Birchfield, Ohio can no longer make it a crime under ORC 4511.19(A)(2) to refuse to submit to a warrantless blood test.

It is a Separate Crime to Refuse a Breath Test in Ohio if You Have a Prior DUI / OVI Within 20 Years

Under Ohio law, it is not a separate offense to refuse a breath test on your first offense. However, if you have a prior DUI / OVI in the past 20 years, ORC 4511.19(A)(2) makes it a separate offense, which is a 1^st degree misdemeanor. See below for the penalties for a second DUI / OVI refusal of a chemical test.

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Fourth Amendment Prohibition Against Unreasonable Searches and Seizures

The North Dakota law at issue before the U.S. Supreme Court similarly made a refusal of a chemical test a separate offense. Thus, the question before the Court was whether such refusal laws violate the Fourth Amendment’s prohibition against unreasonable searches and seizures.

The Petitioners before the Court argued that a warrantless breath and blood test under the Fourth Amendment was an illegal search. So, what does the Fourth Amendment say about this? The Fourth Amendment provides:

“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.”

Therefore, the Fourth Amendment prohibits unreasonable searches. Moreover, prior cases have stated that taking a blood sample is a search. See Schmerber v. California. Since the taking of a blood sample is a search, law enforcement must either have a warrant or the search must qualify under an exception to the warrant requirement.

Here, the Court focused their opinion on the search warrant exception for searches incident to a lawful arrest. Under that exception, if an officer arrests a suspect, the officer may search the suspect’s person and the area within the suspect’s immediate control. Using this test derived from Riley v. California, the Court determined the applicability of this exception by weighing the intrusion on privacy interest against the need for the tests to promote legitimate government interests.

Here, the Court balanced the interests of the Petitioners against the government’s interest in obtaining the blood-alcohol content (BAC) results. In balancing these interests, the Court found that breath tests do not seriously impact privacy interests because it constitutes a minimal intrusion, the results are only used to show BAC levels, and the results cannot be preserved. However, the Court found that blood tests do significantly impact privacy interests because its involves an invasive procedure, can be preserved, and may be used to obtain information other than BAC.

Privacy Concerns Outweighed by Government Interests

The Court found that the government has an interest and duty to keep the roads safe from drunk drivers and, therefore, an interest in obtaining information about BAC. The Court noted that since there are more than one million DUI / OVI arrests every year, requiring a warrant for every breath test would overwhelm courts.

Therefore, since breath tests do not pose a significant privacy concern, but serve a significant government interest, breath tests may be administered after an arrest without the requirement of a search warrant. However, because blood tests are particularly intrusive, law enforcement must obtain a warrant prior to requiring a person to submit to a blood test.

Impact on Ohio DUI / OVI Law

The Birchfield opinion will impact Ohio DUI / OVI law. As stated above, ORC 4511.19(A)(2) makes it a crime to refuse a breath, blood or urine test if the driver is under the influence and has a prior DUI / OVI conviction within 20 years. The Ohio General Assembly may now dispense with the current prior conviction requirement and criminalize all breath tests refusals.

DUI / OVI Attorney – Columbus and Delaware, Ohio

If you have been charged with DUI / OVI in Columbus or Delaware, Ohio, contact Johnson Legal, LLC and speak with an experienced criminal defense attorney. Attorney David Johnson of Johnson Legal, LLC will discuss your case and assist you in fighting the charges. Call (614) 987-0192 or send an email to schedule a consultation regarding your DUI / OVI case.

Johnson Legal, LLC serves the following cities in the central Ohio area for DUI / OVI Defense:

Westerville, Worthington, Columbus, Polaris, Reynoldsburg, Grandview Heights, Shawnee Hills, Bexley, Pickerington, Gahanna, Sunbury, Powell, Upper Arlington, New Albany, Dublin, Hilliard, Lewis Center, Galena, Clintonville, Huber Ridge, Blacklick, Grove City, Delaware, Marysville, Groveport, Newark, Canal Winchester, Obetz, Marion, Mt. Gilead, Pataskala, Granville, Whitehall, Franklin County, Morrow County, Licking County, Union County and Delaware County