When an officer arrests a driver for DUI (called ‘OVI’ in Ohio), the officer typically requests that the driver consent to a blood, breath, or urine test. However, a statute in the Ohio Revised Code (section 4511.191) says a driver arrested for OVI implicitly consents to those tests. Can a driver arrested for OVI revoke that consent? This question has not been directly addressed in Ohio but was recently answered by the Supreme Court of Colorado.
Express Consent and Implied Consent
A general rule of the Fourth Amendment is officers must obtain a warrant before conducting a search or seizure. There are exceptions to that rule, and one of the exceptions is consent. If a person voluntarily gives express consent to a search or seizure, a warrant is not required. After consenting to a search or seizure, a person may withdraw that consent, and the search must stop. But can a person revoke consent when a state law says the person has given implied consent?
Tarr v. People
The issue of revoking implied consent was addressed by the Colorado Supreme Court in Tarr v. People. Tarr was involved in a collision which resulted in the death of a pedestrian. Tarr was taken to a hospital, and officers met him there. The officers explained the implied consent law and the option of obtaining a warrant. Tarr declined to consent to the blood draw, stating, “You’re not taking my blood.” Tarr’s blood was withdrawn anyway, and a blood test showed Tarr’s blood alcohol concentration was well above the ‘legal limit’.
Before his case went to trial, Tarr argued the blood test should be inadmissible at trial because he revoked consent to the blood test. The judge ruled that Tarr had no right to revoke consent because, under Colorado state law, he implicitly consented to the blood test. The blood test was admitted as evidence, and Tarr was convicted of Vehicular Homicide.
Tarr appealed his conviction, and the case was ultimately heard by the Colorado Supreme Court. The Court concluded the implied consent law may be used for the purpose of imposing sanctions for refusing a blood test, but the law does not create actual consent for the purpose of the Fourth Amendment. Therefore, a driver may revoke statutory implied consent to a blood test.
Once consent had been revoked by Tarr, the blood draw violated the Fourth Amendment’s prohibition against unreasonable searches and seizures. Accordingly, the blood test could not be admitted as evidence, unless the prosecution could show there was another applicable exception to the warrant requirement.
Implied Consent in Ohio
The Ohio Supreme Court has not addressed revocation of implied consent for a blood test. It seems the Ohio Supreme Court would, like Colorado, rule that implied consent can be revoked. First, Ohio’s implied consent law is very similar to the implied consent law of Colorado. Second, the decision in the Colorado case was based on United States Supreme Court cases concluding a warrant is required for a blood test. Third, in the most recent blood test case in the United States Supreme Court, Mitchell v. Wisconsin, a majority of the justices were of the opinion that implied consent does not create actual consent.