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THE HOOVER / SB 17 DILEMMA: ADVISING THE OVI CLIENT IN THE AGE OF FORCEABLE BLOOD DRAWS AND CRIMINALIZED REFUSAL

The phone rings in the middle of the night and your client is calling from a police department with an urgent questions: he or she has been arrested for Operating a Vehicle Under the Influence (OVI) and asks whether he or she should take the breath test. As you try to regain consciousness, you simultaneously realize every lawyers worst fear: you’re not sure how to answer the question.

Whether to advise the client to refuse or consent to a requested test has always been a conundrum: consenting to, and failing, a  requested blood, breath, or urine test will arm the prosecution with evidence which will likely lead to a conviction. However, refusing such a test will lead to an increased operator license suspension (including longer hard time suspension) and, depending on the jurisdiction, may foreclose the possibility of negotiating a reduction of the OVI charge. Recent case law and legislation has made this historically difficult question even more difficult to answer.

On September 23, 2004, ORC 4511.19(A)(2) became effective, having been enacted by passage of am. Sub. H. B. 163, which, for the first time in the State of Ohio, attached criminal penalties for refusing to provide a breath, blood, or urine sample for persons arrested for OVI with prior convictions for OVI (and related offenses) within six years.

ORC 4511.19(A)(2) states:

No person who, within 20 years of the conduct described in division (A)(2)(a) of this section, previously has been convicted of or pleaded guilty to a violation of this division, division (A)(1) or (B) of this section, or a municipal OVI offense shall do both of the following:

  • operate any vehicle…Within this state while under the influence of alcohol, a drug of abuse, or a combination of them;
  • subsequent to being arrested for operating the vehicle…, being asked by law enforcement officer to submit to a chemical test or tests under 4511.191 of the revised code, and being advised by the officer in accordance with section 4511.192 of the revised code of the consequences of the person’s refusal or submission to the test or tests, refuse to submit to the test or tests.

A violation of this provision of the OVI statute results in doubling the minimum period of incarceration that the trial court must impose.

On September 30, 2009, In State of Ohio v. Hoover (2009), 2009-ohio-4993, the Supreme Court of Ohio held that ORC 4511.19(A)(2) does not violate the fourth amendment to the united states constitution or Section 14, Article 1 of the Ohio Constitution. In so holding, the Ohio Supreme Court reasoned that Hoover had “no constitutional right to refuse to take a reasonably reliable chemical test for intoxication.” The court cited Westerville v. Cunningham (1968), 15 Ohio St. 2d 121, which in turn relied on Schmerber v. California (1966), 384 U.S. 757, for this proposition of law. The Court then concluded that “[a] skiing a driver to comply with conduct he has no right to refuse and thereafter enhancing a later sentence upon conviction does not violate the constitution.”

The Hoover, supra, decision relies heavily on Westerville v. Cunningham, supra.  Indeed, Westerville, supra, is the lynchpin around which the court hangs the central reasoning for its decision. In turn, Westerville v. Cunningham, supra, relied heavily on an oversimplification of the United States Supreme Court’s holding in Schmerber, supra. 

In Schmerber, Supra, the united states supreme court held that a compelled blood draw, over the refusal of the subject thereof, did not violate the fourth amendment when (1) the law enforcement officer had probable cause to arrest the subject and a blood draw would likely lead to the discovery of relevant evidence; (2) exigent circumstances existed such that the delay necessitated by obtaining a warrant might result in the destruction of evidence as the alcohol dissipated in the subject’s system; and (3) the means to obtain the blood draw were “reasonable”, i.e., the blood was withdrawn by a physician in a hospital environment according to accepted medical practices.

In holding that the blood draw did not violate Schmerber’s fourth amendment right, the United States Supreme Court conceded that a blood draw does constitute a search of “persons” within the meaning of the fourth amendment.

Schmerber, supra, has not only indirectly lead to the Ohio Supreme Court’s recent holding in Hoover, supra, it is also undoubtedly responsible for the passage of SB 17, which, effective September 30, 2008, amended ORC 1547.111 (B) (relative to boating under the influence) and 4511.19 (A) (5) (relative to operating a vehicle under the influence) to authorize law enforcement officers to “employ whatever reasonable means” are necessary to ensure that an arrested suspect submits to a chemical test of the suspect’s whole blood or blood serum or plasma” when the suspect refuses to submit to a requested chemical test and when:

A. The person is under arrest for a violation of ORC 1547.11 (or a substantially equivalent municipal ordinance) and has two or more convictions for a violation of ORC 1547.11 (or other equivalent offenses including, but not limited to: involuntary manslaughter, aggravated vehicular homicide, vehicular manslaughter, or aggravated assault as a result of committing an impaired driving offense or while under the influence); or

B. The person is under arrest for a violation of divisions (A) or (B) of ORC 4511.19, or ORC 4511.194 (or a substantially equivalent municipal ordinance) and either 1) has two or more prior convictions for ORC 4511.19 (A) or (B) or other equivalent offenses including, but not limited to: involuntary manslaughter, aggravated vehicular homicide, vehicular homicide, vehicular manslaughter, or aggravated assault as a result of committing an impaired driving offense or while under the influence within six years of the date of the offense; or 2) has a prior felony OVI conviction.

Simply stated, given the passage of ORC4511.192(A)(2), the constitutionality of which has been upheld in Hoover, supra, and the recent passage of SB 17, the following circumstances now exist:

  • anyone with a prior OVI conviction with 20 years who refuses to submit to a requested chemical test after being arrested on suspicion of OVI and is charged and convicted of the OVI offense is in violation of ORC 4511.192(A)(2) and faces twice the minimum mandatory period of incarceration than those who submit to the requested chemical test and test over .08 and less that .17; and
  • anyone with two prior OVI convictions within 6 years or a prior felony OVI conviction “shall submit” to a requested chemical test (ORC 4511.191(A)(5)(a). If the suspect refuses, the officer may “employ whatever reasonable means are necessary” to obtain a blood sample.

Given these recent changes in the law in Ohio, what is an attorney’s ethical duties to the prospective client who seeks advice on whether to comply with a requested chemical test?

Obviously the first thing the attorney should determine is whether the prospective client has one to more prior OVI or boating under the influence or equivalent convictions in his or her lifetime.  If the prospective client has no such prior convictions, there may be less difficult ethical problems in advising the prospective client to refuse to consent to the requested chemical test, so long as counsel advises the prospective client of the adverse consequences of doing so, i.e., increased administrative license suspension time, increased “hard time” license suspensions, and the fact that some courts will not permit reductions on “refusal” cases and/or will treat “refusal” cases the same as so-called “super duo” cases, to wit: over .17 bad cases which will effectively double the minimum mandatory period of incarceration.

If the prospective client has one prior OVI or boating under the influence of equivalent convictions within 20 years or two such convictions within the previous 6 years, the analysis, and corresponding ethical duty, becomes more problematic.

Rule 1.2 of the Ohio Rules of Professional conduct provides, in relevant part:

(C) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is illegal or fraudulent. A lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client in making a good faith effort to determine the validity, scope, meaning, or application of the law.

If the prospective client has one such prior conviction within 20 years, advising the prospective client to refuse to consent to the requested chemical test will undoubtedly result in the prospective client being charged with a violation of ORC 4511.192(A)(2). In so advising, has the attorney violated Rule 1.2 (D) of the Ohio Rules of Professional Conduct? By advising the prospective client to refuse, knowing that the client has one prior OVI or equivalent conviction within 20 years, the attorney has arguably “counsel[ed] a client to engage… In conduct that thelawyer know is illegal”. See Rule 1.2(D)

In upholding the constitutionality of ORC 4511.19(A)(2) in Hoover, supra, the Ohio Supreme Court stated that it is “crucial to note that the refusal to consent to testing is not, itself, a criminal offense”, despite the fact that the refusal to consent is an essential element of this offense. This dicta suggests that advising a prospective client with one prior OVI or equivalent conviction within 20 years would not be tantamount to advising the prospective client to engage in conduct that is illegal. Significantly though, Rule 1.0(E) of the Ohio Rules of Professional Conduct defines the word “illegal” as follows:

“illegal” denotes criminal conduct or a violation of an applicable statute or administrative regulation.

Thus, advising the prospective client to refuse a requested chemical test may be tantamount to advising the client to violate ORC 4511.19(A)(2) and, accordingly, such advice may run afoul of Rule 1.2(D).

Advising the prospective client that has two or more convictions within the last 6 years and/or who has a prior felony OVI conviction to refuse to consent to a requested chemical test is even more problematic. Such persons who are under arrest on suspicion of OVI or boating under the influence statutorily “shall submit” to a requested blood, breath or urine test pursuant to ORC 1547.111 (B) and ORC 4511.191(A)(5)(a). Advising such a person to refuse to submit to the requested chemical test will result in law enforcement subjecting the prospective client to a forced blood draw and an implied consent suspension. Further, advising such a person to refuse to submit to the requested chemical test arguably is tantamount to advising the person to violate the mandates of ORC 1547.111 (B) or ORC 4511.191(A)(5)(a), which, as discussed above, may run afoul of Rule 1.2(D).

More troubling, the prospective client who is subject to a forced blood draw and refuses to consent to a requested blood, breath, or urine test on the advise of counsel, could possibly be charged with a criminal offense for so refusing. Tampering with evidence, in violation of ORC 2921.12; obstructing official business, in violation of ORC 2921.31; or failure to comply with order or signal of police officer, in violation of ORC 2921.331 (A) are potential criminal charges that an overzealous or creative police officer or prosecutor could charge the prospective client with. If such a charge is filed against the potential client, the attorney has arguably violated Rule 1.2(D) and, at minimum, the attorney’s legal advice has put the prospective client in an even worse legal predicament.

Perhaps the most troubling potential criminal charge that could be brought against the client for purposes of this analysis is obstructing official business.

ORC 2921.31, entitles “obstructing official business”, states in relevant part:

(A) no person, without privilege to do so and with purpose to prevent, obstruct, or delay the performance of a public official of any authorized act within the public official’s official capacity, shall do any act that hampers or impedes a public official in the performance of the public official’s lawful duties.

The doubling element of this offense is “without privilege to do so”. A prosecutor could argue that the language contained in both ORC 1547.111(B) and ORC 4511(A)(5)(a), that a person who is subject to a forcible blood draw “shall submit” to the requested chemical test, statutorily strips that person of any privilege to refuse to submit to the requested test. Accordingly, counseling such a person to refuse to comply with the requested yest could be tantamount to counseling the person to “prevent, obstruct, or delay” the law enforcement officer from obtaining the requested chemical test sample.

Conversely, advising the client to submit to the requested chemical test may arm the prosecution with evidence that, given the Ohio Supreme Court’s holding in State v. Vega (1984), 12 Ohio St. 3d 185, that an accused cannot make a general attack upon the reliability and validity of an approved breath testing device, may result in an OVI conviction for your client.

Rule 2.1, entitled “advisor”, states:

In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations, such as moral, economic, social, and political factors, that may be relevant to the client’s situation.

Comment 5 to this rule states, in relevant part:”…When a lawyer knows that a client proposes a course of action that is likely to result in substantial adverse legal consequences to the client, the lawyer’s duty to the client under rule 1.4 may require that the lawyer offer advice if the client’s course of action is related to the representation.” Arguably, a lawyer who knows that his client is going to consent to a requested chemical test “knows that a client proposes a course of action that is likely to result in substantial adverse legal consequences to the client” and thus, the lawyer should arguably advise the potential client to refuse to consent to the requested test.

The question of whether an attorney is in violation of Rule 1.2(D) by advising a potential client to refuse to submit to a requested chemical test, whether that person has no prior convictions for OVI or whether said person is subjected to a forcible blood draw upon refusal, will turn on whether the attorney who so advises knows that the act of refusing is illegal. Relative to ORC 4511.19(A)(2), the Supreme Court of Ohio has stated, in dicta in State v. Hoover,supra, that such an act is not, in an of itself, illegal.  Notwithstanding the possibility of “creative” prosecution of persons subject to forcible blood draws for other offenses, it is arguable that the act of refusing is not illegal per se, and thus, advising any potential client, however situateed, to refuse a requested chemical test, is not tantamount to assisting a client in conduct that the lawyer knows to be illegal. However, once again, the definition of “illegal” in the Ohio Rules of Professional Conduct further prohibits an attorney from advising a client in conduct that would constitute a violation of a statute or administrative code section.

In conclusion, advising a potential client on whether to comply with a requested chemical test is a “catch-22” Scenario. Giving advice to a prospective client on whether to consent to or refuse a requested chemical test is not a simple matter and requires a complex analysis that involves the client’s prior history and the jurisdiction, among other variables. Given the Hoover, Supra, decision, as well as the recent passage of SB 17, the lawyer should determine whether the potential client has any prior relevant convictions and, if so, how many such priors. Armed with this information, the lawyer can then explain to the potential client the consequences of refusing to comply with the test as opposed to the consequences of complying with the test. There will undoubtedly be adverse consequences to the client regardless of whether the client consents to refuses. Rule 1.2(D) states, in relevant part: “a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client in making a good faith effort to determine the validity, scope, meaning, or application of the law”.  Therefore, explaining to the potential client his options and permitting him or her to make his or her own decisions, is the safest ethical course of action.

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