Chemical Test Refusals May Not be Criminal

In the context of a drunk driving arrest, a handful of states have enacted statutes criminalizing chemical test refusal. These states are Minnesota, Nebraska, Alaska, Virginia, Florida, Ohio and Vermont. The Ohio statute increases penalties for the refusal rather than considering the violation a new crime. These statutes are unusual, and while still relatively uncommon, they do raise unanswered questions regarding the limits of implied consent statutes and the propriety of the imposition of criminal penalties for refusing a warrantless search. When the possible unconstitutionality of these searches has been raised, the courts often misinterpret misapply the legal fiction of implied consent and improperly extend the rulings and rational of both South Dakota v. Neville, 459 U.S. 553 (1983) and Schmerber v. California384 U.S. 757 (1966).

Nevertheless, these laws have been challenged on various grounds, including the right to due process, the right against self-incrimination, the right to counsel, and the right against unreasonable search and seizure. On a state level, these laws have been consistently upheld against such challenges, but the Ninth Circuit is the only federal court to address the constitutionality of such a law. Although these challenges have been unsuccessful, the courts’ rationales for upholding these laws are problematic. See Note, Taryn Alexandra Locke, Don’t Hold Your Breath: Kansas’s Criminal Refusal Law is on a Collision Course with the U.S. Constitution, 52 Washburn L.J. 289 (2013).

In addition, the rationale in Schmerber cannot justify the criminal refusal law because it is inapplicable to the issues the criminal refusal law presents. The U.S. Supreme Court in Schmerber decided whether a warrantless search, under specific facts, passed Fourth Amendment requirements. The Court did not decide whether criminal penalties could legally be imposed upon refusal to consent. Additionally, the exigent circumstances present in Schmerber are not present in every case and are greatly reduced with the advent of modern technology. Id.  It should be noted that the applicability of the exigent circumstances has been upheld by the court’s ruling in Missouri v. McNeely, 569 US ___, 133 S. Ct. 1552 (2013).

A recent case addressing this issue is Hoover v. Ohio, ____ Fed. Appx.____, 2013 WL 6284256, C.A.6 (Ohio, 2013).  In this case Hoover was arrested for drunk driving after police observed him driving over the center line, and he was found to smell of alcohol, admitted to drinking, and was unable to pass the field sobriety tests. Hoover refused to take a breathalyzer test. He was charged with violating Ohio Revised Code § 4511.19(A)(2), which has three elements: driving under the influence, having a prior conviction of driving under the influence, and refusing a breathalyzer test. Because Hoover refused to take the breathalyzer test, his mandatory minimum sentence was doubled. Hoover moved to dismiss the charge against him, arguing that the statute was unconstitutional because it penalized him for invoking his Fourth Amendment rights. The trial court denied the motion to dismiss, and Hoover entered a no contest plea. He was sentenced to sixty days of imprisonment, but the sentence was stayed while Hoover pursued his challenge to the statute.

The Ohio Court of Appeals agreed with Hoover’s argument that he should not be subject to increased criminal penalties for refusing to take a breathalyzer test, and it vacated his sentence. State v. Hoover, 878 N.E.2d 1116 (Ohio Ct.App.2007). The Supreme Court of Ohio, in a four-to-three decision, reversed the decision of the Court of Appeals and reinstated Hoover’s sentence. State v. Hoover, 916 N.E.2d 1056 (Ohio 2009). The United States Supreme Court denied certiorari. Hoover v. Ohio, 559 U.S. 1093 (2010). Hoover then filed a petition for federal habeas corpus relief. A magistrate judge recommended that the petition be denied, and the district court adopted this recommendation over Hoover’s objections, but granted Hoover a certificate of appealability. In order to be entitled to federal habeas corpus relief, Hoover was required to show that the Ohio Supreme Court’s decision was contrary to or an unreasonable application of federal law clearly established by the Supreme Court. See Slagle v. Bagley, 457 F.3d 501, 513 (6th Cir.2006).

Even though it denied cert, the United States Supreme Court has not spoken directly on this issue. Instead, Hoover relied on Camara v. Municipal Court, 387 U.S. 523, 540 (1967), for the proposition that he may not constitutionally be convicted for refusing to consent to a warrantless search. That case involved a property owner who was faced with criminal charges for refusing to allow an inspection of his property. The Supreme Court noted that there was no probable cause to believe that the property owner had violated any law, and that there were no exigent circumstances that prevented the government from obtaining a warrant. Id. at 539.

According to the Sixth Circuit Federal Appeal’s Court; in Hoover’s case there was probable cause to believe that he was guilty of driving under the influence as he had already been arrested on that charge. The Supreme Court has also held that under exigent circumstances, even the more invasive blood test without a warrant to determine intoxication incident to an arrest for drunk driving is not an unreasonable search under the Fourth Amendment. Missouri v. McNeely, 133 S.Ct. 1552, 1556 (2013); Schmerber v. California, 384 U.S. 757, 771 (1966). Therefore, the court held that Hoover’s reliance on Camara was “unavailing,” and distinguishable. The property owner in Camara had the right to insist on a warrant, and because of Ohio’s implied consent law, Hoover did not.  According to the Sixth Circuit, “because Hoover has not established that the Ohio Supreme Court’s rejection of his claim is contrary to or an unreasonable application of federal law clearly established by the Supreme Court, the denial of his petition for a writ of habeas corpus is affirmed.”

Despite the ruling in the Ohio case, it remains true that the United States Supreme Court has not yet taken this issue head-on.  Where this to occur in the future, then with right case under the right circumstances, the Supreme Court might rule in favor of the accused.