Sunday, September 03, 2000

Breath test oft refused

Without it, avoiding conviction is easier

The Associated Press

        COLUMBUS — Ohio drivers are discovering that refusing to take a breath, blood or urine test makes it easier to avoid a drunken-driving conviction.

        An analysis by the Columbus Dispatch shows that motorists who refuse a test often get reduced charges and avoid jail time, hefty fines and higher insurance costs.

        Defense lawyers say it's wise to refuse taking a test because Ohio Supreme Court rulings make it difficult to challenge the results.

        “Don't answer any questions. Don't take any tests,” Kenton defense attorney Thomas Roof said he tells his clients. “You don't need the conviction and you don't need the high-risk insurance that comes with it.”

        Ohio motorists arrested for drunken driving were convicted of reckless operation or other reduced charges in a third of the 35,259 cases in 1998 and 1999 that involved test refusals, the Dispatch found.

        Refusing to take a test after a drunken driving arrest carries a one-year driver's license suspension. But nearly 40 percent of the motorists who refused tests during the past two years obtained permits allowing them to drive to and from work, state records show.

        “The refusal issue continues to get worse from our perspective,” said Col. Kenneth Morckel, superintendent of the State Highway Patrol. “My troopers can't work hard enough to overcome this. It takes legislative change.”

        The Ohio Criminal Sentencing Commission wants lawmakers to deny work-related driving permits for drivers who refuse tests and double the minimum three days in jail for those later convicted of drunken driving.

        Legislators rejected the commission's recommendation to presume motorists who refuse to take the breath test are legally drunk.

        Defense lawyers and civil libertarians contended that the idea would run counter to the notion of “innocent until proven guilty.”

        Col. Morckel said he favors making the penalty for refusing to take the test similar to that of a DUI conviction.

        Nebraska, Alaska, Rhode Island, Minnesota and the District of Columbia have criminalized refusals.

        “We shouldn't penalize people who aren't drunk just because they refuse to take a test,” said Becky Herner, assistant state public defender. “They should at least be able to prove to a jury that they weren't drunk and don't deserve to be punished.”

        Many criminal justice experts think the number of test refusals will skyrocket as a result of the state's new “super-drunk” law that took effect in May. The measure doubles the penalties for motorists whose blood-alcohol level is 0.17 or higher.

        Under current law, a driver is considered legally drunk at 0.10.


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