Implied Consent

Many of my colleagues claim if a person is found not guilty of driving under the influence, the violation of the implied consent law (for refusing to take a chemical test) is obviated and their client will not loose their driving privileges. A recent Ohio case, City of Westlake v. Pesta, 2009 Ohio 4713 proves them to be wrong.

In this case, the defendant refused to submit to a chemical test. In addition to the OVI charge, his license was suspended, immediately, for his violation of Ohio’s implied consent law. Pesta was eventually found not guilty of OVI and petitioned the court for a reinstatement of his driving privileges. His petition was denied.

In Ohio, no person may operate a motor vehicle on the public roads or on any private property used by the public without a valid license, R.C. 4510.123(A)(1). The licensed operation of a motor vehicle in this state is a privilege, not a right. Maumee v. Gabriel (1988), 35 Ohio St.3d 60, 63, 518 N.E.2d 558.

One of the conditions attached to the privilege of being licensed to drive is the operator's consent to chemical or other tests of the operator's blood, urine, or breath if a law enforcement officer has reasonable grounds to believe that the operator had been driving while intoxicated or impaired. R.C. 4511.191(A)(2).

The operator may refuse to take any requested tests, but does so at the peril of losing driving privileges. If the operator of a motor vehicle refuses to submit to a requested test, the arresting officer must seize the operator's license and immediately administratively suspend the driver's operating privileges. R.C. 4511.192(D)(1). An administrative license suspension goes into effect immediately, and the suspension is not affected by any subsequent finding that the person is not guilty of the charge that resulted in the person being requested to take the chemical test or tests.

What does all this mean? It means that even if one is found not guilty of driving under the influence, their refusal to take a test will result in a suspension. The time for appealing their suspension is within the statutory period for appealing an administrative license suspension, not after the adjudication of the OVI charge.