Courts Begin to Adopt Findings in State v. Hoover

Courts are beginning to adopt the findings in State v. Hoover, 2009 Ohio 4993, permitting lower courts to enhance a person’s sentence for refusing to submit to a chemical test in OVI prosecutions.

Historically, it was thought that a defendant had a constitutional right to refuse to submit to a chemical test. While the refusal could result in an administrative suspension under Ohio’s Implied consent Law, O.R.C. 4511.191, it was thought that it was a violation of the defendant’s Fourth Amendment right to enhance a sentence due to the defendant refusal.

The Third District Appellate Court (Union County, Ohio) had reiterated this long established thinking in rejecting a lower court’s enhancement of a defendant’s sentence due to the defendant’s refusal to submit to a test. But the Ohio Supreme Court rejected this long held interpretation and overruled the appellate court’s opinion. In its opinion the supreme court stated:

"It is crucial to note that the refusal to consent to testing is not, itself, a criminal offense. The activity prohibited under R.C. 4511.19(A)(2) is operating a motor vehicle while under the influence of drugs or alcohol. A person's refusal to take a chemical test is simply an additional element that must be proven beyond a reasonable doubt along with the person's previous DUI conviction to distinguish the offense from a violation of R.C. 4511.19(A)(1)(a).”

"Hoover contends, however, that he has a constitutional right to revoke his implied consent and that being forced by threat of punishment to submit to a chemical test violates his rights under the Fourth Amendment to the United States Constitution and Article I, Section 14 of the Ohio Constitution, which provide that persons, houses, and effects are protected against unreasonable search and seizure. However, Hoover has no constitutional right to refuse to take a reasonably reliable chemical test for intoxication...Asking a driver to comply with conduct he has no right to refuse and thereafter enhancing a later sentence upon conviction does not violate the constitution.”

In rejecting an appeal from the Coshocton Municipal Court, The Fifth Appellate District adopted the findings in State v. Hoover. It appears that court, prosecutors and police have an additional hammer to hold over the head of a detainee to demand that they submit to a chemical test.

It would be wise that any advocate advising those arrested for OVI rethink their unwavering advise to refuse a test. There may be valid reasons to do so, BUT the possibility of additional sanctions should be part of the decision making process.