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Breath-tests Unpopular

By Erik Johns
Advocate Reporter


To blow or not to blow, that is the question.

There are many nuances to Ohio’s drunken-driving laws, and the recent conviction of Ohio Supreme Court Justice Alice Robie Resnick for operating a motor vehicle while intoxicated brings up many questions about the statues.

Mainly, if arrested on suspicion of drunken driving, should a person blow the Breathalyzer, or decline? And what happens if you refuse?

On Jan. 31, Resnick was pulled over near Toledo for erratic driving and registered a 0.22 percent blood alcohol percentage during a field breath test, almost three times the legal limit of 0.08 percent.

She refused to take an official breath test, and the field test is inadmissible as scientific evidence in court.


defense lawyer Rob Calesaric says people should always refuse field tests, which include portable Breathalyzers and field sobriety tests such as walking a straight line, and instead agree to go to the police station to take an official test.

“If you’re going to take any test, fall back on a more scientific test,” he said.

Official breath tests are administered at police stations with a more accurate, court-admissible machine.

However, according to Ohio law, that suspension can be terminated if the person pleads guilty or no contest to the drunken-driving charge for which they originally refused to test, as Resnick did.

Any sentence the court imposes upon conviction is independent of the automatic administrative suspension.

Resnick was sentenced to a six month license suspension after pleading guilty Monday. According to the Ohio Revised Code, if she would have stuck with her original not-guilty plea, the one-year administrative suspension would have stayed in place.

According to the Ohio Bureau of Motor Vehicles, anyone serving and administrative suspension can petition for driving privileges for work.

Calesaric doesn’t have a hard-and-fast rule for clients on whether they should refuse the official test.

“If you have any prior offenses within 20 years, refusal gets you double the minimum mandatory sentence,” he said.

Calesaric added that efforts in the works to criminalize refusals could make doing so illegal.

However, he said he does see some possible benefits to refusing an official test.

If a person had little to drink and feels they could prove to a court that they weren’t impaired, even if they were right around the 0.08 legal limit, refusal may be prudent. Police wouldn’t be able to present an analysis showing an illegal blood-alcohol level in court.

On the other end of the spectrum, if a person is completely inebriated and could receive a substantial sentence from the court, Calesaric said it may be smart to refuse, prohibiting that information from getting to the court.

Nonetheless, drunken driving remains a serious offense that killed more than 17,000 people nationwide in 2003, according to statistics from Mothers Against Drunk Driving.

Punishment for drunken driving in Ohio can range from a minimum $200 fine, three-day safety course, and a six-month license suspension for first-time offenders to a maximum of one year in jail, a $10,000 fine, vehicle impoundment and permanent license revocation for fourth-time and beyond offenders.

For law enforcement officers, the breath test is not the only thing considered when building a case.

Although the portable breath tests aren’t admissible as scientific evidence of blood-alcohol level, they can be introduced as probable-cause evidence, said Lt. Lawrence Roseboro, commander of the Granville Post of the Ohio Highway Patrol.

Roseboro said other factors such as visibly impaired driving, slurred speech, odor and appearance are all used to build a drunken-driving case, and breath tests are “icing on the cake.”

State Trooper Bob Franks said that more people take the breath test than refuse – slightly more than 50 percent – and those who do refuse tend to be people “who think they know the system.

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Robert E. Calesaric Attorney at Law

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NewarkOH 43055

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