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 warrant-less 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)
[courtesy thenewspaper.com]
“It is crucial to note that the refusal to consent to testing is not, itself, a criminal offense,”
“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”
So, they’re saying that refusal to submit to search is a criminal act that must be proven in court, while at the same time saying that it’s not a criminal offense? I’m confused. I must be dumb compared to these brilliant legal minds.
This will be shot down by defense lawyers so fast it will make these judges’ heads spin.
Hope this goes up to the US Supreme Court. The Ohio Supreme Court’s reasoning makes no sense to me. I’m all for stopping drunk driving. But this is not the way to do it.
Yeah, that does seem to cross a line. The only possible way I can see it working is if one of the conditions of the reinstatement of his license after the previous DUI was that he was waiving his right to refuse the test in the future.
But I’m not even sure if that’s Constitutional, since encouraging people to waive the protections of the Constitution could raise some serious public policy questions.
Refusing a breath test has been a criminal offense in Manitoba for years. Same penalties imposed as though you blew over .08
Actually I think the Court got it right. Refusing to take the test is not an independent criminal act, nor does it enhance the maximum penalty for DUI – at least not from what I’ve read here. All it does is raise the mandatory minimum jail time for those who are convicted of DUI after refusing to take the test.
Look at it another way: suppose the mandatory minimum jail time had been 20 days all along, and the legislature decided to reduce that mandatory minimum to ten days for those who elected to make things easier on the prosecution by submitting to the breath test. Surely you wouldn’t have a problem with that sort of “incentive” to submit to the breath test, would you? The additional punishment imposed here effectively yields the same result.
I’m just not seeing the problem here. This is no more “criminalizing” the refusal to take the breath test than hate crimes legislation criminalizes “hate” in the abstract.
But… but… think of the children!!!!!
…we shall pay any price, bear any burden, meet any hardship, support any friend, oppose any foe to assure the survival and the success of even one child.
(attempting to become more politically correct so as to meld into the New World Order)
Strippo: Surely you wouldn’t have a problem with that sort of “incentive” to submit to the breath test, would you?
Surely I would!
Strippo: It doesn’t matter whether you characterize it as a reward for submitting: It is still imposing a more severe sentence for exercising a Constitutional right than for waiving it.
Suppose this was not a traffic/dui case, suppose it was a drug case. Would the court allow a more severe sentence for a criminal who refused a consensual search of his vehicle or home than for one who submitted voluntarily? They absolutely would not, because then they would be imposing a penalty for exercising a Constitutional right.
Despite the heated rhetoric that always comes up over DUI cases, I think this is the same thing. It is tantamount to a penalty for exercising a right, no matter how sweetly it’s characterized.
This is why the residents of Ohio (a/k/a Cop Ridden Hellhole) call the Ohio Supreme Court, the “Seven Potted Geraniums”.
Their decisions on this topic are undoubtedly shaped by the recent arrests of a former potted plant.
Strippo: It doesn’t matter whether you characterize it as a reward for submitting: It is still imposing a more severe sentence for exercising a Constitutional right than for waiving it.
Actually, the driver waives the right to avoid submitting to a breath test by taking advantage of the privilege of driving on public roads by virtue of implied consent laws. You still have the power to refuse the test, but not the right to refuse; you already gave that up. So refuse to submit and suffer the consequences.
I don’t make the rules. I’m just saying, technically the Court got it right.
Strippo: the Court may be correct, but they’re sure as hell not right.
@Rick To be right as you see it would require judicial activism. Hate on the legislature, not the Supremes.
Strippo: I’m not up on Ohio law but in most states the implied consent rule applies to the drivers license which is issued by the state subject to certain conditions.
IOW, you apply for a DL, and the state says “in order to receive this DL, you agree to submit to a sobriety test when asked.” If you don’t want to agree, you don’t have to take the DL. And the only penalty that the state can assess for refusing the breathalyzer is linked to the DL, that is, they can revoke your DL for refusal.
The revocation of a driver’s license is an administrative, civil matter.
A criminal conviction (and sentencing) is a completely, totally, separate matter.
It would be as if the state had passed a law that said that if you were accused of murder and you invoke the 5th amendment privilege against self-incrimination, you could be sentenced to death, but that if you waived your right against self-incrimination and took the stand, the maximum sentence would be life in prison. In essence, the state would be saying that if you invoke a Constitutional right, you will be subject to a more severe penalty than if you waive that right.
Actually, the driver waives the right to avoid submitting to a breath test by taking advantage of the privilege of driving on public roads by virtue of implied consent laws.
No. I’m not up on Ohio law but in most states the implied consent law applies to the issuance of a driver’s license. It goes like this: The state says “we will issue you a driver’s license but one condition is that if you’re asked to take a breathalyzer, you have to take it.” A person who doesn’t want to be subject to the implied consent law can avoid it by not getting the license.
If the person violates the implied consent law by not consenting, the only penalty is that the state can revoke the driver’s license, which is a civil and administrative proceeding.
A criminal conviction and sentence is not the same thing.
It would be as if the legislature passed a law that said that if you are accused of murder and invoke your 5th amendment privilege against self incrimination, you can get the death penalty but that if you waive that privilege and testify the most you can get is life in prison. They would be penalizing a defendant for exercising a Constitutional right.
Anyone who says it’s a “privilege” to drive on the roads should be deported to become subjects of the European Union.
That legal canard is always thrown around as justification for anti-motorist money-raising schemes that require setting aside the Bill of Rights (as here, double jeopardy, self-incrimination and warrantless search protections are made utterly meaningless). I can’t think of a more un-American notion.
Imagine Paul Revere not doing his midnight ride because he didn’t renew the license on his horse in time.
Strippo:
It is neither “brave” nor “activist” (depending on one’s side of the fence for the given issue) for a court to say that the constitution takes precedence over legislation. It’s in the job description.
“Actually, the driver waives the right to avoid submitting to a breath test by taking advantage of the privilege of driving on public roads by virtue of implied consent laws. You still have the power to refuse the test, but not the right to refuse; you already gave that up. So refuse to submit and suffer the consequences.”
This is why the police state loves cars. The implied consent of exercising one’s driving privileges trumps the Bill of Rights. You have very few rights as a motorist. Your car is not your home nor, strangely, your person. So it’s exempt from the Fourth Amendment protections. Gotta love it.
The argument is that one doesn’t have to drive. I wonder how long this fallacy can be perpetrated upon the vast majority of Americans who, when they lose their license/car, fall quickly into poverty. I’m no lawyer. But, to me, this sounds suspiciously like a contract of adhesion. When you have no choice, it’s not a “choice” at all.
Bunkie: I don’t know where you heard that cars are “exempt” from the 4th amendment but it’s wrong.
An automobile, like a home, can only be searched under certain specific circumstances. A car on the highway can be searched without a warrant but there still has to be probable cause. If a car is not on a public road, it cannot be searched without a warrant unless there are exigent circumstances.
Of course, parts of the interior of a car can also be searched if one of the occupants of the car is arrested even if there is no other probable cause to search the car, but then again, the same thing applies to a house: If a person is arrested, the police can search the immediate area that the arrestee had access to in order to determine whether he stashed weapons or contraband there.
@bunkie I agree, but that battle seems lost. In this case implied consent is taken as a given.
@Rick It is neither “brave” nor “activist” (depending on one’s side of the fence for the given issue) for a court to say that the constitution takes precedence over legislation. It’s in the job description.
Yeah, if that conclusion is correct. Here it isn’t, so it wouldn’t be. The bottom line, conventional view is that a car is potentially a deadly weapon, so by law you’ve got to accept limited compromises to your freedom in order gain the privilege of driving one. The constitution does not forbid such laws from being passed. It just doesn’t. Ditto state constitutions.
“Bunkie: I don’t know where you heard that cars are “exempt” from the 4th amendment but it’s wrong.”
There was a U.S. Supreme Court ruling on this issue back in the mid-1970s that specifically stated that a car was not granted the same protections under the 4th Amendment as a person’s home.
“The bottom line, conventional view is that a car is potentially a deadly weapon, so by law you’ve got to accept limited compromises to your freedom in order gain the privilege of driving one.”
Yet, by the same token, If I build a meth lab in my basement (with the potential explosion risk), I’m still protected by the 4th Amendment. If I’m stopped for speeding, how is the content of my car’s trunk, in any way, material to the specific act of speeding?
Despite the twin handicaps of being Canadian and a non-lawyer, I too, think this is an odd situation. If the penalty for not taking the breathalyzer test were the same as the penalty for failure of the test, would that be acceptable? Is that what the situation was before this ruling?
I’ve often thought that a good way to speed up an overcrowded court system would be to have a stiffer penalty for a defendant who pleads ‘Not Guilty’ (despite the fact that they killed 5 people in cold blood in front of 100 witnesses, or had a suitcase full of cocaine in the trunk and sold half of it to undercover officers) and ends up convicted than if they just pled ‘Guilty’ in the first place to save everyone a ton of wasted time and effort. Maybe it’s not such a great idea after all…
Congratulations to OH Supremes, but I am dissapointed it was not a 7-0 but the narrowest of wins, a 4-3. Still, I’ll take it!
It is high time to REALLY throw the book at those criminal and irresponsible drunk scum!
If I’m stopped for speeding, how is the content of my car’s trunk, in any way, material to the specific act of speeding?
It’s not. The 4th Amendment applies in that context (at least until they arrest you). Just because car and home aren’t equivalent doesn’t mean the 4th Amendment has no application at all in the traffic stop context.
I don’t know how you crazy Ohio folk do things, but here in California, drivers waive the right to refuse a BAC test when they obtain a license. Does Ohio not do the same thing?
For that matter, here’s an effective method of avoiding being “stripped” of your rights: don’t drink and drive in the first place.
I don’t know how you crazy Ohio folk do things, but here in California, drivers waive the right to refuse a BAC test when they obtain a license. Does Ohio not do the same thing?
I think this is a common misconception.
You have to understand that there are two, completely, totally separate legal issues here:
1. The driver’s license, which your state issues to you pursuant to certain rules and regulations that are promulgated by the executive agency (DMV or whatever it’s called in your state.)
and
2. The Criminal justice system, whereby a person can be charged criminally if they commit a crime.
Regarding the license, the state sets up rules for the issuance of a DL. They can mandate training requirements, licensing restrictions, medical requirements, and so on. A person who meets all of the qualifications set up by the state is entitled to receive a license. A person can also challenge those requirements if he believes them to be unfair or discriminatory.
One of the rules the states normally have is the “implied consent” rule (here in Colorado it’s called the “express consent” rule but it’s the same thing.) That rule states that, as a condition of receiving a license, a driver must submit to a blood, breath or other sobriety test when a law enforcement officer requests it (though generally speaking such request must be supported by at least some reasonable suspicion, though that, too, varies by state.)
A person who does not comply (by refusing the test) is then in violation of the agreement under which the license was issued and the state, acting under the rules set up by the DMV, can then move to revoke the license for failure to comply with the implied/express consent provisions of the law.
Note that this is an administrative, civil process, not a criminal matter.
Now, if the driver does consent to the test, then that evidence can then be used for purposes of criminal prosecution. As with all criminal prosecutions, the burden of proof is on the State to prove, beyond a reasonable doubt, that the driver was driving while intoxicated.
If you refuse to take the sobriety test, the state can revoke the license (as stated above) and the prosecutor can still charge the driver with DUI, using the evidence that is available (the officer’s testimony that the vehicle was ‘weaving’, the driver’s appearance and demeanor when stopped, any dashboard-camera videos of the driver taking the field sobriety test, any observations made by the police or the jail personnel when the driver was taken to jail, etc.)
What is troubling about this case is that the judge appears to have enhanced the criminal sentence because the defendant exercised his 4th amendment rights to not consent to a warrantless search, and this was affirmed by the highest court in the state.
To use another analogy, it would be as if a court were allowed to increase your sentence because you exercised your Miranda rights and asked for a lawyer instead of confessing.