Can Your Sentence be Enhanced if You Refuse to Take A Chemical Test?

Legal experts have debated for years the issue of restricted freedoms due to actions that might not be criminal by definition. The major debate centers around sentence enhancement due to one’s refusal to submit to chemical testing, i.e. blood draws, DNA tests, etc. Even the US Supreme Court has raised the ire of many legal scholars because of its differing opinions relating to many of these freedoms.

If you read this blog, a recent article discussed one appellate court’s opinion regarding the criminalization of a defendant’s right to refuse to submit to a chemical test. While most legal scholars side on a defendant’s right to refuse without the stigma of an enhanced sentence, the Fifth Appellate Court in State of Ohio v. Adam, sustained the lower court’s right to enhance the defendant’s sentence for his refusal to submit to a chemical test.

Apparently, the Ohio Supreme Court, in its recent decision in State v. Hoover, 2009 Ohio 4993, has put the issue to rest (at least in Ohio) for multiple offenders. In that case, the defendant refused the breathalyzer and his sentence was doubled due to his violation of O.R.C. 4511.19(A)(2). That statute permits the enhancement of an OVI sentence if the defendant refused to submit to a chemical test and has a prior conviction in the last 20 years.

The defendant argued that the statute violated his Fourth and Fifth Amendment Rights which protects him from illegal searches and seizures and violations of his due process rights. The court disagreed stating that the right to drive in Ohio is not an inherent constitutional right. It is a privilege that does not have the same constitutional safeguards.

The court cited the cases of Westerville v.Cunningham, 15 Ohio St. 2d 121 and Schmerber v. California, 384 U.S. 757 that stated section 4511.191 of the Ohio Revised Code, does not violate the search and seizure provision of the Fourth Amendment, nor the self-incrimination clause of the Fifth Amendment to the United States Constitution.

The court also cited State v. Gustafson, 76 Ohio St.3d 425 which declared that the administrative license suspension provisions of the 4511.19 was not a violation of the defendant’s Fourth and Fifth Amendment Rights to further rationalize its findings.

In conclusion, the court declared the enhancement provision for refusing to submit to a chemical test is constitutional and allows a court to enhance a defendant’s sentence if the following are proven beyond a reasonable doubt: (1) a DUI conviction within 20 years of the current violation, (2) operation of a motor vehicle while under the influence of alcohol or drugs, and (3) a refusal to submit to a chemical test while under arrest for the current DUI.

You will note the court did not address the issue of court’s right to enhance the sentence of a first time offender for their refusal to submit to a chemical test. This is still under debate as discussed in a prior blog.