ALS Appeal: Refusal or Obstruction? (by Dayton DUI)

Logo BlueOften, our clients will tell us that they could not produce a sufficient sample for the requested chemical test.  “I kept trying, but I just could not blow long enough to satisfy the officer.”  If they hope that this information will prevent the imposition of an Administrative License Suspension, they may be disappointed.  Ohio DUI law sets a high bar for overcoming the presumption that law enforcement was not at fault for your failure.

The validity of a refusal based on physical incapacity to submit a sample requires a factual finding by the court in favor of the accused. Wilder v. McCulllion, 7 Ohio Misc. 2d 6, 453 N.E. 2d 1314 (Mun. Ct. 1983); Hecker v. McCullion, 1990 WL 4319 (Ohio Ct. App. 10th Dist. Franklin County 1990); Crasper v. Andrews, 1977 WL 201382 (Ohio Ct. App. 8th Dist. Cuyahoga County 1977).  To demonstrate that a genuine effort was made by the licensee to submit to testing, despite the inability to produce a valid test result, evidence that the testing device or process was defective or that the individual was physically incapable of producing a sufficient sample may be presented by the petitioner in challenging the administrative license suspension. See Weiler & Weiler, Ohio Driving Under The Influence Law, 2012-2013 ed., at 135 citing, Andrews v. Turner 52 Ohio St. 2d 31, 6 Ohio Op. 3d 149, 368 N.E.2d 1253 (1977); Hecker v. McCullion, 1990 WL 4319 (Ohio Ct. App. 10th Dist. Franklin County 1990); Hoffer-Hodge v. Caltridge, 1998 WL 906479 (Ohio Ct. App. 2nd Dist. Montgomery County 1998).

If you have a legitimate excuse for your failure to produce a sample, there is precedent that a court may find in you favor. See Fletcher v. Bureau of Motor Vehicles, 1985 WL 7130 (Ohio Ct. App. 6th Dist. Wood County 1985); State v. Hicks, 1984 WL 6294 (Ohio Ct. App. 11th Dist. Trumbull County 1984); Riebel v. Curry, 38 Ohio Misc. 71, 67 Ohio Op.2d 272, 313 N.E.2d 26 (Mun. Ct. 1974).  A physical inability to produce a urine sample has also been found not to be a refusal. Guckian v. Dollison, No. CA7169 (Ohio Ct. App. 2nd Dist. Montgomery County 7-29-81); Murphy v. McCullion, 1986 WL 10604 (Ohio Ct. App. 11th Dist. Trumbull County 1986); Trotwood v. Briggs, 64 Ohio Misc. 2d 34, 639 N.E.2d 876 (County Ct. 1994).  If you have a valid reason that the chemical test requested was difficult or impossible to comply with, your DUI attorney can present a defense at an Administrative License Suspension Appeal.  Make sure you tell your attorney of these issues at the initial consultation, as they will be required to be presented at the beginning of your case.

DUI attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in Fairborn, Dayton, SpringfieldKetteringVandaliaXeniaMiamisburgHuber HeightsBeavercreekCentervilleSpringboro, Franklin and throughout Ohio.  He has the credentials and the experience to win your case and has made himself the Miami Valley’s choice for DUI defense.  Contact Charles Rowland by phone at 937-318-1DUI (937-318-1384), 937-879-9542, or toll-free at 1-888-ROWLAND (888-769-5263).  For after-hours help contact our 24/7 DUI HOTLINE at 937-776-2671.  For information about Dayton DUI sent directly to your mobile device, text DaytonDUI (one word) to 50500.  Follow DaytonDUI on Twitter @DaytonDUI or Get Twitterupdates via SMS by texting DaytonDUI to 40404. DaytonDUI is also available on Facebook,www.facebook.com/daytondui and on the DaytonDUI channel on YouTube.  You can also email Charles Rowland at: CharlesRowland@DaytonDUI.com or write to us at 2190 Gateway Dr., Fairborn, Ohio 45324.