Friday, August 20, 1999
New DUI law would assume guilt for refusing breath exam
BY MICHAEL HAWTHORNE
Enquirer Columbus Bureau
COLUMBUS — Ohio motorists who refuse breath tests would be presumed to be drunken drivers under legislation pending in the General Assembly.
Nearly a third of motorists asked to take the alcohol breath test last year refused to do so. A state panel suggested that refusals are up because other laws inadvertently discourage testing.
The bill, sponsored by Sen. Scott Oelslager, R-Canton, would create a “rebuttable presumption” that a motorist was drunk if he or she refused to be tested. Drivers would have to prove they weren't drunk, instead of prosecutors being forced to prove they were.
Civil libertarians contend the bill would flip the notion that a person is considered innocent until proven guilty. But backers say public safety outweighs constitutional concerns.
“We're trying to close a loophole in the law,” said Mr. Oelslager, chairman of the Senate Highways and Transportation Committee. “The goal is to make the streets safer, because drunken drivers kill and maim Ohioans on a regular basis.”
If the bill becomes law, police would be required to tell motor ists that refusing to take the breath test could lead to arrest, a significantly higher license reinstatement fee and the presump tion they were driving drunk.
Officers still would need probable cause to pull over a suspected drunken driver.
State law seems to discourage testing. For instance, the $810 license-reinstatement fee is twice as expensive for people who submit to the test than for those who refuse.
“That just doesn't make sense,” said Chief Justice Thomas J. Moyer of the Ohio Supreme Court, who chairs a bipartisan state panel that recommended the changes.
Defense attorneys routinely advise clients to reject the breath test, in part because it denies prosecutors hard evidence they could use to prove their case in court. That can make it easier for defendants to plead to a lesser charge.
When former Senate President Stanley Aronoff was charged with driving under the influence (DUI) in the Statehouse garage Aug. 10, he refused to undergo a breath test
after consulting with his attorney. The Cincinnati Republican, now a lobbyist, has pleaded not guilty.
Mr. Aronoff isn't alone in refusing. Thirty-one percent of the 60,000 motorists asked to undergo a breath test last year in Ohio declined, according to the state Bureau of Motor Vehicles.
“Many lawyers have historically advised clients not to take any test or provide any other evidence that can be used against them,” said James Looker, a Cincinnati attorney and co-author of a handbook on Ohio's DUI laws.
“There could be a hundred other reasons why somebody refuses a breath test, but case law makes it difficult to challenge the accuracy of the machine if they do,” Mr. Looker said.
Judges already are encouraged to tell juries they can consider the refusal of a breath test as evidence against a defendant.
But while motorists who refuse the test automatically lose their license for one year, Mr. Looker said that option is preferable to a DUI conviction for those whose blood-alcohol level registers above the legal limit of 0.10 percent.
The Ohio bill isn't as radical as legislation that would create criminal penalties for refusing the test. Nebraska, Alaska, Rhode Island, Minnesota and the District of Columbia have adopted such laws.
Unlike Ohio, Kentucky doesn't charge different license-reinstatement fees depending on whether a person submitted to the breath test. But refusal can result in the loss of driving privileges for six months or more, depending on the number of prior offenses.
Hearings will be scheduled for fall and spring on the Ohio proposal, which is part of a massive rewriting of the state's traffic and misdemeanor laws.
Other parts of the bill, including provisions that would boost jail time for many misdemeanor offenders, also are drawing heat. But Mr. Oelslager predicts the DUI proposal will be the subject of intense debate because of the constitutional issues swirling around it.
“The danger is it misplaces the historical obligation of the state to prove the accused is guilty,” said Ray Vasvari, legal director of the American Civil Liberties Union of Ohio. “It strikes at the very heart of what the criminal justice system is all about.”
Internet's racial divide narrowing
Microsoft vows to fix e-mail bug today
Driver in worst DUI set to be released
Mugger shot by intended victim
Conceled weapon permit requires test
New DUI law would assume guilt for refusing breath exam
Price Hill mourns loss of 'neighbors'
Life's a beach, Buffett rules
Local colleges among top rated
Miami freshman class hits record
UC hears from excavators in Turkey: We're fine
Boaters cautious in wake of deaths
Couple seeks sponsors to cover wedding cost
Livestock collide with development
Blind rafters enjoy Little Miami adventure
6 file for school board spots
Middletown will elect new leaders
No candidates for 9 posts in Warren
Seven running for Mason council
Family reflects on blessings after crash
GET TO IT
Homework is for parents, too
What parents say about getting involved
Park benches with pizazz
Other Artworks programs
Storyteller performances open Taft exhibit season
County finally hears voters
Food banks Y2K-ready
How to help earthquake victims
Hundreds on ballot in Hamilton County
Judge sets strict rules in porn trial
Man dies from apparent electrocution
Marilyn Sheppard's body to be exhumed
N.Ky. leaders boost workers' training center
New roof shields fairgoers
New system speeds fingerprint IDs in Ohio
Shooting death stuns family
Teachers union sues schools
TRISTATE DIGEST
Truck driver in fatal crash likely to post bond
Woodlawn rights case referred
