Sunday, November 8, 2009
Mandatory Longer Sentence for DUI Breath Test Refusal Found Consitutional
In still another ruling on the ongoing debate about DUI sentencing statutes, the Supreme Court of Ohio recently ruled that the extra 10-day sentence mandated by Ohio law on those who (i) have a prior DUI conviction and (ii) refuse the breath test on a subsequent DUI arrest and conviction is not a violation of the Fourth Amendment of the Ohio and United States Constitution. The defendant in State v. Hoover, 2009-Ohio-4993 alleged that the mandatory breath test required under Ohio DUI law violated his Constitutional right against "unreasonable searches and seizures" - a right protected by the Fourth Amendment of the Ohio and United States Constitution. However, in a narrow 4-3 decision, the Supreme Court of Ohio rejected that argument, holding that a series of decisions by the Court have already held that a defendant does not ever have a right to refuse a breath test, and, therefore, any increased in penalty for a refusal of the test cannot be unconstitutional. These prior holdings have all been based upon the idea that when a person requests and obtains an Ohio driver's license, that persons has consented to having their breath tested at any time they are arrested for a DUI. So if a person has a prior DUI conviction, and that person is subsequently arrested for another DUI and refuses a breath test, that person is facing (i) a 10-day sentence for a 2nd DUI and (ii) an ADDITIONAL 10-day sentence for refusing the test - for a total minimum sentence of 20 days. If that same person had consented to the test (and tested over the legal limit), they would only be facing a mandatory sentence of 10-days. A person with a prior DUI conviction has to really ponder whether refusing a breath test if arrested for a 2nd DUI is worth the extra penalty. Suggestion, consult with a lawyer as soon as you are confronted with this issue.