Columbus OVI/DUI Attorney Blog
Imagine that you are arrested for DUI (called OVI in Ohio), and the officer takes you to a police station to take a urine test. You want to comply, because you’re sure the test will prove you are under the legal limit, but you don’t need to go. In fact, you can’t go. You drink a bunch of water and wait a while, but you still can’t go. The officer then says you refused the urine test, so your driver’s license is suspended for one year.
That’s what happened in State v. Brown, a case decided last week in an Ohio Court of Appeals. In that case, Brown first took a breath test, and the result was 0.00. The officer likely suspected that Brown was under the influence of a drug other than alcohol, so the officer asked Brown to submit a urine sample. Brown agreed, drank several glasses of water, and attempted to provide a urine specimen four or five times but was unable. The officer seized Brown’s license and placed him under a one-year driver’s license suspension for ‘refusing’ the urine test.
Officers are authorized to suspend a driver’s license, on behalf of the Ohio Bureau of Motor Vehicles, if a driver is arrested for DUI/OVI and refuses to submit to a breath/blood/urine test. A driver’s license can also be suspended if a driver submits to the test and the result is over the legal limit. These suspensions are called ‘Administrative License Suspensions‘ (A.L.S.) and are separate from the sentence that is imposed if the driver is found guilty of DUI/OVI. The A.L.S. can be appealed, and the trial court has the authority to terminate the A.L.S.
Brown did appeal his A.L.S., and the trial court held a hearing on his appeal. For this type of hearing, the burden is on the defendant to prove he did not refuse the test. At the hearing, the arresting officer acknowledged that Brown apparently “was not refusing the urine specimen”, and “it was very apparent to me that he was trying but just could not produce.” Nevertheless, the trial court concluded that Brown failed to prove he did not refuse the test, so the one-year suspension remained.
Brown appealed the trial court’s decision to Ohio’s Twelfth District Court of Appeals. On one hand, the appellate court cited previous cases saying that a person’s conduct can constitute a refusal, even if the person does not verbally refuse. On the other hand, the court reasoned, there are also cases that say a physical inability to complete the test is not a refusal.
What the court seemed to find ultimately persuasive was precedent indicating that whether a person refuses a test is based on an objective standard rather than a subjective standard: would a reasonable officer conclude the defendant was refusing the test. The court of appeals decided that a reasonable officer would not have concluded Brown refused the urine test. The decision of the trial court was reversed, and Brown’s license suspension was terminated.
I have represented clients who claimed they were unable to provide a urine sample at the officer’s request. The results of the A.L.S. appeals have been mixed. Those situations are better than the drivers that urinate before getting out of the car for field sobriety tests. That is typically more difficult to explain.