Court of Appeals Sustains Lower Court’s Right to Enhance a Sentence for Refusing to Take Beathalyzer Test

You’ve heard the advertising from some DUI defense practitioners: “Refuse the breathalyzer.  It will make it harder to prove you were driving under the influence.”  This might be true, but a recent Ohio case might give you and your attorney second thoughts.

As now constituted, Ohio’s DUI law incorporates penalty enhancement for subsequent offenses.  For example, a first DUI calls for a minimum of three days in jail or diversion, a second in six years requires a minimum of ten days in jail and so on.  Historically, in most instances, courts adhered to these minimums notwithstanding the defendant’s refusal to submit to a test.

Due to a case decided in the Fifth Appellate District (Coshocton, Ohio), this may drastically change.  The case, State of Ohio v. Adam Hill, upheld a courts right to punish a defendant for refusing to take a breathalyzer.  In that case Mr. Hill was arrested for driving under the influence.  He was asked to take a breathalyzer and he refused.  The court gave the Defendant an additional ten days in jail for refusing to take the breathalyzer.  

The Defendant appealed his sentencing arguing his constitutional rights were violated when the court sentenced him to an additional ten days incarceration solely because he refused to submit to a breath alcohol test.

The court stated, “...there is no constitutional right to refuse a chemical test...the choice to submit to or refuse the test is not a constitutional right, but rather a matter of legislative grace.”  

The court went on to say, “Since Ohio has long accepted the principle that a defendant’s refusal may be used in considering whether the defendant is under the influence, we see no distinction in the use of that same refusal as an element to enhance a minimum term of imprisonment.”  

Therefore, this appellate court upheld the lower court’s decision to add ten days to the defendant’s sentence for refusing to the breath test.  

While this case is only law within the Fifth Appellate’s area of jurisdiction, other Ohio courts are permitted to adopt this reasoning to enhance sentences for a defendant’s refusal to take a test.  And while this decision was made on the appellate level, if the Ohio Supreme Court sustains this case, it will become the law throughout Ohio allowing police to use this leverage to mandate a defendant’s compliance.Court of Appeals Sustains Lower Court’s Right to Enhance a Sentence for Refusing to Take Beathalyzer Test