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Ask The Cleveland DUI Lawyer: If You Are Stopped For Drinking And Driving Should You Submit To A Breath Test Or Field Sobriety Testing?

March 8, 2017

 

It is the age-old question that lawyers who defend drinking and driving charges get from clients, should I submit to a breath test?  The simplest answer I can give is that there is no one size fits all answer.  Certainly, if you have not had a drink or used any illegal substance than you should likely submit to the tests as they will tend to prove that you are not intoxicated.  For someone on the border however the answer is much more difficult.  The most basic advice I can give is that you should either consent to all testing or none.  The mistake I generally see is people who submit to the field sobriety testing but then refuse the breath test.  In this entry I will more fully explain the pluses and minuses to submitting to field sobriety and breathalyzer testing.          

 

Once a police officer properly determines that there is reasonable suspicion to believe someone might be operating a vehicle while intoxicated he/she will request that they submit to standard field sobriety testing.  In actuality, Ohio only recognized three field sobriety tests, and no reciting the ABC’s backward is not one of them.  The three recognized tests are as follows: (1) horizontal gaze nystagmus (HGN); (2) one leg stand; (3) walk and turn.  The HGN test is the one which is commonly known as following an object with your eyes.  The one leg stand is standing with one leg up in the air while counting.  The walk and turn is the test where an individual walks a straight line, turns, and then walks back. 

 

Should you decide to submit to the field sobriety tests it is important that you follow the officer’s directions specifically and make sure you do not actually begin the test until you are told to do so.  There are specific requirements an individual administering these tests must comply with so if you do submit to the field sobriety tests and are charged with an OVI thereafter you will want to promptly contact an attorney.

 

If you do not submit to the field sobriety tests it might be harder for a prosecutor to prove you are in fact guilty of drinking and driving but it is not impossible.  Further, regardless of whether or not you submit to the tests you might still find yourself under arrest for the OVI offense.  Once you are under arrest it is important to remain respectful to the police but you will want to exercise your right to remain silent.  This will not preclude the police from obtaining basic identifying information.  You will next be faced with the decision of whether or not you want to submit a breath sample for a chemical test.

 

Initially before being given the option to submit to a chemical test you will be read BMV Form 2255 which advises you of the possible license suspensions, called an administrative license suspension (ALS) you will face if you refuse to submit to the test or test over the legal limit.  If this is your first offense in six years the ALS for submitting to a chemical test and testing with a BAC of .08 or above as set forth in R.C. 4511.191(C) is a ninety day license suspension with no driving privileges for the first fifteen (15) days.  The ALS for refusing to submit to a chemical test as set forth in R.C. 4511.191(B) is a one year license suspension with no driving privileges for the first thirty (30) days.  There are additional suspensions and penalties if you have a commercial driver’s license.  Keep in mind that even if you are acquitted of a charged OVI offense at a trial the administrative license suspension will remain in effect unless specifically challenged. 

 

As you can see there are much more severe penalties for refusing to submit to the breath test which you must consider when deciding whether or not to take a breathalyzer test.  Additionally, with the introduction of House Bill 388 “Annie’s Law” set to go into effect in April, 2017 you will want to consult with an experienced attorney to more fully explore the changes to penalties regarding OVI offenses and license suspensions. 

 

If you are placed under an ALS you will likely want to obtain driving privileges.  Driving privileges are generally granted after your attorney files for them in the court where you have been charged.  There are also ways in which your attorney might challenge your ALS altogether and look to have your license suspension thrown out.  Under new laws in Ohio the courts have more leeway than ever in granting driving privileges and you will want to speak with your attorney to determine what privileges to request. 

 

OVI offenses in Ohio as well as the ALS carry escalating penalties for each subsequent offense.  While the look back period is currently six years under the new revision to the law it is set to expand to ten years.  Regardless of whether or not you decide to submit to field sobriety or chemical testing if you are charged with drunk driving you want to speak with an attorney immediately so that you can begin preparing your defense and determining the best way to get you driving as soon as possible.

 

As you can see there is no simple answer to whether or not you should submit to testing if you are stopped for an OVI offense in Ohio.  The general thought is to either submit to all tests including the field sobriety and breath tests or to refuse them all.  It is generally bad practice to submit to one and refuse the other.  If you refuse testing it might make it more difficult for a prosecutor to meet its burden to convict you at trial, although you will also be charged for the refusal, but the penalties regarding your driver’s license suspension will be more severe.  If you refuse the chemical/breath test and you go to trial and are found “not guilty” of the drunk driving charge that does not automatically remove the driver’s license suspension.  On the other hand, if you submit to the field sobriety and chemical testing and you have in fact been operating a vehicle while intoxicated in Cleveland or any other city in Ohio you might be providing the prosecutor with additional evidence that can be used against you in seeking a conviction for an OVI offense.  Ultimately, this is a critical and fact specific decision that you must be prepared to make quickly if you are pulled over for drunk driving.

 

If you are charged with and OVI or other alcohol or traffic related offense it is imperative that you contact legal help immediately.  We are here to help you with emergencies like this 24 hours a day 7 days a week.  We have extensive experience in fighting to defend against your drunk driving charge.  We know how important it is to be able to drive for work, school, your kids or just for every day necessities and we will put forth all of our knowledge and resources to get you back to driving as soon as possible.  If you have been charged with an OVI call us at (216) 456-2488 Ext. 3 or email us at info@schlachetlaw.com immediately. 

 

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The information found herein does not constitute legal advice or create an attorney client relationship with The Law Office of Jaye M. Schlachet or Attorney Eric M. Levy.  Furthermore, hiring an attorney does not guarantee a specific result. For more information regarding whether or not attorney Levy can provide you assistance please contact him for a free initial consultation at (216) 456-2488 Ext. 3.

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