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Supreme Court Upholds Law Imposing Tougher DUI Sentence When Prior Offender Refuses Breath Test

2007-2295.  State v. Hoover, Slip Opinion No. 2009-Ohio-4993.
Union App. No. 14-07-11, 173 Ohio App.3d 487, 2007-Ohio-5773.  Judgment affirmed in part and reversed in part.
Lundberg Stratton, O'Connor, Lanzinger, and Cupp, JJ., concur.
Moyer, C.J., and Pfeifer and O'Donnell, JJ., dissent.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2009/2009-Ohio-4993.pdf

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(Sept. 30, 2009) The Supreme Court of Ohio today upheld as constitutional a state law that imposes 10 additional days of mandatory jail time on a driver with a prior DUI conviction if that person refuses to take a chemical test after being arrested for a subsequent DUI violation. The Court’s 4-3 majority decision, authored by Justice Judith Ann Lanzinger, reversed a ruling by the 3rd District Court of Appeals.

The penalty section of Ohio’s DUI statute, R.C. 4511.19(G), sets a mandatory minimum jail term of 10 days for a repeat DUI offender who is convicted under R.C. 4511.19(A)(1). The same statute increases the mandatory minimum jail sentence to 20 days for a repeat DUI offender convicted under R.C. 4511.19(A)(2) – which includes the additional element that when arrested for the current DUI offense, the defendant refused to submit to a chemical test.

Corey Hoover, a Union County motorist with a DUI conviction within the preceding six years, was stopped by a deputy sheriff in September 2006 for a suspected DUI violation. After he displayed signs of intoxication and failed roadside field sobriety tests, Hoover was placed under arrest and asked to take a breathalyzer test to determine his alcohol level. Hoover refused to submit to the test. He was eventually charged with a violation of R.C. 4511.19(A)(2).

During pretrial proceedings Hoover’s attorneys moved for dismissal, arguing that R.C. 4511.19(A)(2) is unconstitutional and therefore unenforceable because it imposes a more severe criminal penalty on a defendant who asserts the right to withhold consent to a warrantless search of his person or property. The trial court overruled the motion to dismiss. Hoover entered a plea of no contest and was convicted of violating R.C. 4511.19(A)(2). The judge sentenced him to the enhanced 20-day jail term prescribed for violators of that code section.

Hoover appealed. On review, the 3rd District Court of Appeals affirmed his conviction for violating R.C. 4511.19(A)(2), but held that the penalty provision in R.C. 4511.19(G) that increased his minimum jail sentence from 10 to 20 days for refusing to be tested violated Hoover’s rights under the Fourth Amendment of the U.S. Constitution and Section 14, Article 1 of the Ohio Constitution, which prohibit unreasonable searches and seizures.

To remedy the constitutional defect, the court of appeals severed (deleted) from R.C. 4511.19(G) the sentence enhancement for repeat DUI offenders who refuse testing. The court then held that, because the statute no longer prescribed a penalty for a violation of R.C. 4511.19(A)(2), Hoover must be resentenced to the 10-day mandatory jail term applicable to a repeat DUI offense under R.C. 4511.19(A)(1). The case was remanded to the trial court for resentencing consistent with the court of appeals’ ruling.

Both parties sought and were granted Supreme Court review of the Third District’s decision. The state urged the Court to overrule the 3rd District’s holding that Hoover’s sentence enhancement for refusing the test was unconstitutional. Hoover’s cross-appeal argued that the court of appeals should have vacated as unconstitutional not only the sentence enhancement provision in R.C. 4511.19(G) but also R.C. 4511.19(A)(2) itself; and therefore the court should have vacated not only Hoover’s enhanced sentence but also his conviction under that statute.

Writing for the Court in today’s decision, Justice Lanzinger noted that Ohio’s “implied consent” law  R.C. 4511.191, which has been upheld as constitutional by both state and federal courts, provides that “Any person who operates a vehicle ... within this state ... shall be deemed to have given consent to a chemical test or tests of the person’s whole blood, blood serum or plasma, breath, or urine to determine the alcohol, drug of abuse, controlled substance, metabolite of a controlled substance, or combination content of the person’s whole blood, blood serum or plasma, breath, or urine if arrested for a violation of (the DUI statute).” 

She wrote: “Hoover contends, however, that he has a constitutional right to revoke his implied consent and that being forced by threat of punishment to submit to a chemical test violates his rights under the Fourth Amendment to the United States Constitution and Article I, Section 14 of the Ohio Constitution, which provide that persons, houses, and effects are protected against unreasonable search and seizure. However, Hoover has no constitutional right to refuse to take a reasonably reliable chemical test for intoxication. ... Asking 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.”

“Furthermore, the request to comply with a chemical test does not occur until after probable cause to arrest exists. In this case, the arresting officer pulled Hoover over after she saw him drive across the center line. She smelled a strong odor of intoxicants as she approached his car. Hoover admitted that he had been drinking. He then performed poorly on field sobriety tests. Because R.C. 4511.19(A)(2) requires that an officer have probable cause to arrest for DUI before requesting that a driver undergo chemical testing and because the United States Supreme Court has held that exigent circumstances justify the warrantless seizure of a blood sample in DUI cases, ... it is clear that R.C. 4511.19(A)(2) does not violate the Fourth Amendment to the United States Constitution or Article I, Section 14 of the Ohio Constitution.”

Justice Lanzinger emphasized that R.C. 4511.19(A)(2) does not make refusal to take a chemical test a criminal offense. “The activity prohibited under R.C. 4511.19(A)(2) is operating a motor vehicle while under the influence of drugs or alcohol. A person’s refusal to take a chemical test is simply an additional element that must be proven beyond a reasonable doubt along with the person’s previous DUI conviction to distinguish the offense from a violation of R.C. 4511.19(A)(1)(a). Hoover’s conviction under R.C. 4511.19(A)(2) meant that the mandatory minimum jail term increased from ten days, the mandatory minimum for R.C. 4511.19(A)(1)(a), to 20 days.”

The majority opinion was joined by Justices Evelyn Lundberg Stratton, Maureen O’Connor and Robert R. Cupp.

Justice Paul E. Pfeifer entered a dissenting opinion that was joined by Chief Justice Thomas J. Moyer and Justice Terrence O’Donnell. Justice Pfeifer wrote that today’s majority holding diverges from previous court decisions which have upheld only the imposition of administrative penalties against DUI defendants for refusing to submit to chemical testing.

“R.C. 4511.19(A)(2) veers from the traditional administrative punishment for refusal to consent to a chemical test upon an arrest for DUI and goes down a separate path, beyond the regulation of licensing; for certain DUI arrestees, R.C. 4511.19(A)(2) criminalizes the refusal to take a chemical test. This court’s previous jurisprudence regarding sanctions for a DUI defendant’s failure to consent to chemical tests have all involved license suspensions. ... This court has previously answered the question whether a person can face criminal sanctions for failure to consent to a search.  In Wilson v. Cincinnati (1976) ... this court held that that the Fourth Amendment prohibits the imposition of criminal penalties upon a person who refuses to submit to a warrantless search.”

“The issue here is whether the state can criminalize a person’s failure to consent to a warrantless search, or in other words, to force a consent to search through the coercive power of threatened jail time. Although consent is implied by R.C. 4511.191, consent can be withdrawn. ...  Imposing criminal sanctions for failure to consent goes far beyond the state’s power ... to regulate the licensure of drivers. As in Wilson, the statute at issue herein imposes a codified dilemma – consent to a warrantless search or face the possibility of a criminal penalty – and thus amounts to coercion. R.C. 4511.19(A)(2) therefore violates defendants’ rights under the Fourth Amendment to the United States Constitution and Section 14, Article I of the Ohio Constitution.”

Benjamin Mizer, 614.466.8980, for the State of Ohio.

Jonathan Tyack, 614.221.1341, for Corey Hoover.

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