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Can You Be Charged With OVI for Refusing to Take a Warrantless Chemical Test?


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Do you give up your Fourth Amendment rights merely by driving? That is what three states just argued for in front of the United States Supreme Court. In Birchfield v. North Dakota, which has been consolidated with cases from two other states, the Court will decide whether it is constitutional for a state to criminalize refusing to take a warrantless chemical test to determine the presence of alcohol in a person’s blood. North Dakota, among other states, makes it a crime to refuse such tests, and any driver in the state is deemed to have consented to a chemical test.

The drivers in these cases are challenging the laws, arguing that is unconstitutional under the Fourth Amendment for a state to criminalize refusing to submit to a chemical test, usually carried out by breath or blood. This is because the Fourth Amendment protects people from warrantless searches, and the often-invasive chemical tests are considered searches. The drivers do not believe they should be criminally punished merely for exercising a constitutional right. Additionally, in 2013 the Supreme Court held that the natural dissipation of alcohol in an individual’s bloodstream is not sufficient in every case to excuse the warrant requirement for conducting a chemical test.

Ohio does not currently have criminal penalties for refusal to submit to a chemical test. Rather, you receive an automatic license suspension, starting at one year for the first offense. Ohio also deems you to have consented to a chemical test by driving, but as of now does not make it a crime for refusing to take the test. However, if you have two or more OVI offenses within the last six years, an officer is allowed to use “reasonable means” to force you to take a chemical test. Ohio courts have determined “reasonable means” includes an officer holding down a person’s arms so blood can be drawn.

While this case has not yet been decided, the Court’s eventual decision could have serious implications for OVI law throughout the country. If the Court decides that it is constitutional to charge drivers with a crime for refusal to submit to a chemical tests, states including Ohio could revise their laws to make refusal a crime. Lardiere McNair will follow this case and provide you with updates once the Court makes its decision. Our firm is also experienced in handling OVI cases, so if you are charged with an OVI offense, don’t hesitate to contact us. You can trust Lardiere McNair to protect your rights.

Joe Burke is a Law Clerk at Lardiere McNair, LLC.  To read more about our firm, please visit

The information presented here has been prepared by Lardiere McNair for promotional and informational purposes only and should not be considered legal advice.  This information is not intended to provide, and receipt of it does not constitute, legal advice.  Nor does the receipt of this material create an attorney/client relationship.  An attorney client relationship is not established until such time as Lardiere McNair enters in to a written engagement agreement with a specific client for a specific legal matter.



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