Under Ohio law, if you are pulled over for DUI/OVI and refuse to take the breathalyzer or other chemical test, or you test over the legal limit, your license will be subject to an automatic suspension. This suspension is called an Administrative License Suspension (called an “ALS” suspension).

This type of driver’s license suspension is through the BMV. It is separate from any suspension that you might receive at the conclusion of your DUI/OVI case in court. However, the court has the power to terminate the ALS suspension at the end of the DUI/OVI case.

So, what happens if you try to blow into the breathalyzer, but couldn’t because of a medical condition or other issue? What occurs if the police marked you down as a “refusal” even though you attempted to blow? First, hire a criminal defense attorney who can help you deal with these issues. An attorney, like David Johnson, will file a motion for an administrative license suspension hearing if the suspension was imposed due to an error. However, this hearing must be requested within 30 days from the date of the suspension notice (this often occurs during the arrest).

An example of where this occurred can be found in State v. Williams. In Williams, the court held an ALS hearing to decide whether or not the driver refused the breathalyzer test. The arresting officer stated that since the driver stopped blowing into the breathalyzer machine, the driver refused. However, the driver’s attorney presented evidence that the driver had esophageal surgery, which made the driver physically unable to provide a proper breath sample.

The court held that “unless there is a refusal to comply with the test instructions, a failure to produce an adequate breath sample is not a refusal to submit to the chemical test upon the request of the arresting officer.” Essentially, the court held that it is not a refusal if a person is unable to perform the act (i.e., breath into the breathalyzer).

At the ALS hearing, the Ohio Supreme Court has held that courts can consider the defendant’s words, acts and conduct, along with other manifestations of a willingness or unwillingness to take the sobriety test, in determining whether there was a refusal or not. See Andrews v. Turner.

Columbus and Delaware, Ohio DUI/OVI Attorney

If you have been charged with DUI/OVI in Columbus or Delaware, Ohio, contact Johnson Legal, LLC and speak with an experienced criminal defense attorney. Attorney David Johnson of Johnson Legal, LLC will discuss your case and assist you in fighting the charges. Call (614) 987-0192 or send an email to schedule a consultation regarding your DUI/OVI case.