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Published: Thursday, 2/2/2012 - Updated: 2 years ago

Refusing DUI test not option

Wood Co. authorities seek blood draws if drivers object

BY JENNIFER FEEHAN AND ERICA BLAKE
BLADE STAFF WRITERS
Matt Reger, Bowling Green prosecutor, says submitting to a breath test is 'an implicit agreement' in getting a license. Matt Reger, Bowling Green prosecutor, says submitting to a breath test is 'an implicit agreement' in getting a license.
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BOWLING GREEN -- In much of Wood County this weekend, law enforcement won't be taking no for an answer.

Calling it a "no-refusal weekend," Bowling Green and Bowling Green State University police, the Wood County Sheriff's Office, and the Ohio Highway Patrol plan to seek "blood-draw warrants" from Bowling Green Municipal Court Judge Mark Reddin when they stop suspected impaired drivers who refuse to take a breath test. The strategy will be used Friday night through Sunday night.

Typically, Ohioans suspected of driving under the influence can refuse to take breath tests, but they will be slapped with an automatic one-year driver's license suspension if they do.

City Prosecutor Matt Reger said the no-refusal concept has been promoted by the National Highway Transportation Safety Administration as a way to crack down on impaired driving and reduce the number of drunk drivers who refuse testing. Many motorists believe they can avoid a DUI conviction or reduce the penalty if they refuse breath testing.

In Ohio, 38 percent of people pulled over for drunk driving in 2005 refused a breath test, according to the NHTSA. New Hampshire had the highest refusal rate at 81 percent.

The American Civil Liberties Union has been critical of no-refusal policies, which have been widely used in Texas, Louisiana, and Florida, among other states. The ACLU claims the policies violate drivers' rights against unreasonable search and seizure, among other issues.

Mr. Reger dismissed the idea that such a policy violates a person's "right" to refuse such a test.

"I think it's a misnomer to call it a right," he said. "You have the ability to refuse, but by obtaining a driver's license you agree to submit to a breath test. It is an implicit agreement by obtaining a driver license. It's in the state law, and every state has it."

He said the no-refusal policy does not violate the 4th Amendment protection against unlawful search and seizure because the arresting officer must show a judge there is probable cause to suspect drunk driving to obtain a blood-draw warrant.

"Just because we ask for it doesn't mean it has to be granted," Mr. Reger said. "There has to be probable cause. That's why we go to the judge."

The ACLU of Ohio, which was critical of Ohio's 2008 no-refusal law for drivers with two prior DUI convictions, declined to comment, saying it hadn't researched the blanket no-refusal policy.

Judge Reddin was out of town Wednesday and could not be reached for comment.

Toledo attorney Jerry Phillips agreed that if a judge is willing to sign the warrant, law enforcement is legally able to obtain the blood. Officers requesting such a warrant, though, would have to demonstrate probable cause through such factors as failed sobriety tests and detection of the odor of alcohol.

When a warrant is signed, other practical issues arise, he said, such as getting those who conducted the blood test to testify and extracting the blood within the legal time frame.

"You may get the result, but the question is, can you get the result into evidence and what is the time and cost involved?" Mr. Phillips said.

Conducting a no-refusal weekend is "not a problem if you want to go to the time and expense of doing it," he added. "The problem is going to be individual cases with individual facts, and whether those facts supported a warrant."

Bowling Green Police Lt. Brad Biller said police have in the past sought warrants for blood draws when they suspected impaired driving if the driver is involved in an injury crash or if the motorist has prior drunk-driving convictions. He said police do not generally seek warrants for first-time offenders who have not caused a traffic crash, but this weekend they will.

Both Lieutenant Biller and Mr. Reger said they did not select this weekend for the first-time campaign because it's Super Bowl weekend when many people will be at parties and bars.

Extra deputies will be on the road, though, as the Wood County Sheriff's Office received funding from the Ohio Traffic Safety Office to pay deputies overtime to do traffic enforcement for Super Bowl weekend.

"Do we expect there will be more people drinking and driving this weekend than on some other weekends? Probably," Lieutenant Biller said.

Contact Jennifer Feehan at: jfeehan@theblade.com or 419-724-6129.



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