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When a Signed Waiver of Counsel May Not Be Sufficient to Enhance an OVI to a Felony With felony OVI arrests on the rise, practitioners need to look in depth at each client’s prior OVI convictions to…

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Two Strikes and You’re Out! Commercial Driver’s License and a second-offense OVI = Disqualification for life The intersection of Commercial Driver’s License (CDL) law and…

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Should Lawyers Advise Motorists to Refuse a Breath Test Upon Arrest for Operating a Vehicle Under the Influence (OVI)?

Date:May 21, 2012 Posted By: James Publishing

The Following is an Article, authored by Attorney, which was published in December 2011.

With holiday parties in full-swing, many of us will get called upon to answer the question: “So, if I get pulled over for an OVI, should I take the breath test or refuse it?” The answer to that question is simple from an OVI defense practitioner’s standpoint: It is always best to refuse a chemical test. But, what counsel should first ask themselves is whether we should even give that advice in the first place.

When a motorist refuses a chemical test upon being arrested for OVI, the trier of fact has no “number” to pin on a defendant. And, learned counsel will be able to bring out through expert witnesses that there are many valid reasons for refusing a chemical test. Moreover, the officer will readily admit on cross-examination that the defendant would have been charged with OVI whether he blew over the limit, refused, or blew under the limit. Thus, the refusal had nothing to do with the officer’s decision to arrest the defendant for OVI.

But, before advising motorists “to refuse,” counsel should be aware of the potential dilemmas attached to that advice. Without knowing, counsel may be advising motorists to commit a criminal offense.

Under Ohio R.C. 4511.19 (A)(2), it is a misdemeanor of the first-degree for a person to refuse a breath test, if that person has a prior conviction for OVI or Underage OVI within the previous 20 years. Prior to R.C. 4511.19 (A)(2), although refusal of a breath test meant the offender’s drivers license would be suspended for a longer period of time for the refusal—it is now a M-1 offense to refuse a chemical test if previously convicted of OVI or Underage OVI within 20 years.

What does that mean for counsel?

Without knowing the specific situation involved with the person you are giving advice to, you may be advising the person to commit an M-1 offense. In turn, you may arguably be violating the R.C. yourself through your advice—or at a minimum violating the Ohio Rules of Professional Conduct.

A non-comprehensive review of the potential Ohio Disciplinary Rules includes possible violations of:

DR 6-101. FAILING TO ACT COMPETENTLY.

(A) A lawyer shall not:

(1) Handle a legal matter which he knows or should know that he is not competent to handle, without associating with him a lawyer who is competent to handle it.

(2) Handle a legal matter without preparation adequate in the circumstances.

DR 7-102. REPRESENTING A CLIENT WITHIN THE BOUNDS OF THE LAW.

(A) In his representation of a client, a lawyer shall not:

(7) Counsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent.

(8) Knowingly engage in other illegal conduct or conduct contrary to a Disciplinary Rule.

So what should counsel advise motorists to do?

When advising on a first-offense OVI, counsel can advise a motorist to refuse a chemical test—because there are no criminal penalties for refusing a chemical test.

But, when the motorist has a prior conviction for OVI, counsel must make sure it was more than 20 years ago, if counsel specifically advises the motorist to refuse a chemical test.

The best advice for counsel to give to motorists may be:

  1. If the motorist refuses a breath test – there are defenses;
  2. There are many reasons why a chemical test result may not be accurate;
  3. Although I cannot tell you whether to take a test or refuse it—from my experience, the best defense is always when there is no number to pin on a motorist.

Drunk Driving Library

Trial strategy
Client Testimony
Cross-examination of the arresting officer on field sobriety tests
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Trial Strategy
Client Testimony
Cross-Examination of the Arresting Officer on Field Sobriety Tests
Closing Arguments
Frequently Asked Questions