No Refusal” Programs: Will Mandatory DUI Blood Draws Come to Ohio?

In December of 2010, U.S. Transportation Secretary Ray LaHood lent his support to an increasingly popular practice: using search warrants to compel blood draws from alleged intoxicated drivers who refuse to submit to breath tests. "I applaud the efforts of the law enforcement officials who have pioneered the 'No Refusal' approach to get drunk drivers off our roads," LaHood said in a released statement.

Nine states, including Texas, Illinois, Arizona and Florida, have adopted "no refusal" programs. Ohio remains a "home rule" state, meaning that implementation of the practice is up to local jurisdictions. Columbus and Westerville are two areas in the state that have imposed such measures on local citizens and visitors.

But a representative of the Hamilton County sheriff's department said that such programs have never been considered, and Cincinnati Police Chief Tom Streicher took a cautionary tone when discussing the requirement of blood tests against a citizen's will. "What expense do we want people to go to try to get evidence or blood or urine?" he told WLWT-TV.

In some states, the program is implemented via high-profile no-refusal weekends during which judges are standing by to issue judicial determinations of probable cause. Such legal shortcuts would fail to meet the legal standard in 20 states, but the National Transportation Safety Board is confident that it can convince other states to put such draconian programs in place to discourage breath-test refusal and expedite convictions.

The practice of mandating blood tests has been cited in some jurisdictions as another example of law enforcement run amok at the expense of suspects' constitutional rights. A federal class action suit recently filed in Illinois alleges violations of both the state and U.S. constitutions, and such issues as an individual's Fourth Amendment right against unreasonable search and seizure would seem a likely point of contention.

The penaltiesfor refusal are already severe. Refusing to submit to a breath test in Ohio will lead to an automatic license suspension (ALS) of one year for a suspect with no previous record, and this penalty increases for those facing second, third or fourth offenses. If a driver refuses to submit to testing, he or she is still subject to even harsher penalties if found guilty ofDUI or OVI based on officer testimony and other evidence.

All of this makes it sound like the cards may be stacked against a driver who is charged with drunk driving. That is why the value of hiring an experienced criminal defense lawyer must be considered by everyone who faces such charges. An aggressive DUI attorney can look at all of the circumstances to assess whether law enforcement violated a client's rights or made critical mistakes that overstated the likelihood of guilt.