Article from: www.thenewspaper.com/news/29/2921.asp
10/6/2009Ohio Supreme Court Criminalizes Breathalyzer Refusal
Supreme Court of Ohio upholds the imposition of criminal sanctions on drivers who refuse to take a breathalyzer test.
The Supreme Court of Ohio last Wednesday voted 4-3 to impose criminal sanctions for the first time on a motorist exercising his right to refuse to submit to warrantless testing after being accused of driving under the influence of alcohol (DUI). Until recently, the only sanction imposed for such refusal was administrative.
The decision came down in the case of Union County resident Corey Hoover who had been pulled over by Deputy Kelly S. Nawman on September 8, 2006. Nawman testified that Hoover's tire crossed over the center line of the road, that he smelled of alcohol and that he performed poorly on field sobriety tests. Nawman arrested Hoover and asked him to perform a breathalyzer test at the sheriff's office. Hoover refused.
In 2004, the Ohio legislature "enhanced" the criminal penalty for anyone with a prior DUI conviction who refused to take a breath test upon the demand of a police officer. As a result, Hoover was sentenced to serve the minimum twenty-day jail term set by the enhanced penalty statute. Had he not exercised the refusal option, Hoover's sentence would have been reduced to just ten days in jail. The majority insisted that imposing criminal sanctions in this way did not violate the Fifth Amendment protections against self-incrimination and double jeopardy or the Fourth Amendment protection against warrantless searches.
"It is crucial to note that the refusal to consent to testing is not, itself, a criminal offense," Justice Judith Ann Lanzinger wrote for the majority. "The activity prohibited... 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... 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."
The high court pointed out that only the license suspension penalty would be imposed on a driver who refused a breath test but was not convicted of DUI. Three justices disagreed with this analysis, insisting the majority was indeed criminalizing the exercise of a constitutional right.
"The issue here is whether the state can criminalize a person's failure to consent to a warrantless search, or in other words, to force a consent to search through the coercive power of threatened jail time," Justice Paul E. Pfeifer wrote in the dissent. "Imposing criminal sanctions for failure to consent goes far beyond the state's power... to regulate the licensure of drivers. The statute at issue herein imposes a codified dilemma -- consent to a warrantless search or face the possibility of a criminal penalty -- and thus amounts to coercion. [The statute] therefore violates defendants' rights under the Fourth Amendment to the United States Constitution and Section 14, Article I of the Ohio Constitution."
A copy of the decision is available in a 65k PDF file at the source link below.
Source: Ohio v. Hoover (Supreme Court of Ohio, 9/30/2009)
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