To Test or Not to Test – The Truth Behind the Barstool Debate
When it comes to OVIs in Ohio, nothing is debated more than the age-old question—to test or not to test. Many hours of barstool time has been spent bantering on this subject. Everyone has an opinion, and everyone knows an “expert” on the topic. But in reality, very few know the real issues lurking behind the debate.
To really understand the dilemma, we must first get through a few basics. In Ohio, there are two ways to get charged with OVI.
The first is called an “impaired” violation. This is pretty self-explanatory. The prosecutor must prove that the driver was impaired (too drunk to drive). Prosecutors typically rely on the driver’s demeanor, odor of alcohol, and performance on field sobriety tests.
The second type of OVI is called a “per se” violation. Here, the only question is the driver’s breath alcohol content, blood alcohol content, or urine alcohol content. So, if a person is driving with an alcohol content above the legal limit, there is an OVI. This is true even if the driver looks and acts sober.
So what does this have to do with the breath test debate? In simple terms, if a driver refuses the breath test, there is no “per se” OVI. As one might expect, the “per se” OVI is easier to prove. The only real questions are: 1) Was the person driving? and 2) Did the person have a breath test above the legal limit?
When we defend cases in Ohio where the person took the test, the job is far more complex. We have to check and re-check the breath machine maintenance records. We have to carefully look to see if the police properly checked the machine for calibration. And we are often stuck looking for hyper-technical problems with the machine.
The problem in Ohio is somewhat unique. The Ohio Supreme Court has determined that we are not allowed to attack at trial the general reliability of the machine. In other words, we can’t stand in front of a jury and argue that the machine, even if working the way it’s supposed to, can make mistakes. We can’t say that breath machine, like our personal computers, can screw up. So, at trial on a “per se” breath test case, the jury gets to assume that the machine works.
Logically, then, it is easier to defendant an OVI case where there is no chemical test. But that does not mean it’s always best to refuse the test. There are other considerations. For instance, now in Ohio, it can be a separate crime to refuse the test. If a person has a prior OVI conviction and they refuse the test, they can be charged with a crime for refusing. And that crime carries the same potential penalties as the OVI charge.
Even where there is no prior OVI conviction, it may not be beneficial to refuse the test. If the person would pass the test, it is probably better to have a test result below the limit. But how can we be sure that someone will pass the test. A little common sense is helpful. If someone has not been drinking, they will pass. Or, if the person had only one or two beers, they will likely pass. This is where it gets complicated. Everyone is different. And let’s face it, these decisions are not so easy when confronted on the side of the road by a cop with his sirens, gun, and badge.
We are often called in the middle of the night to help people answer these tough questions. If possible, it’s always better to consult with an attorney before making any decisions. Police usually allow people to call an attorney before deciding on the breath test. Good, experienced OVI lawyers make themselves available 24 hours a day for this very purpose. We have learned to ask certain questions of people who are facing this tough decision. Based on a few questions and answers, we can give good advice on whether to take the test.
Remember, when in doubt, make every effort to call a good lawyer. That’s why we are here.