Refused a Breathalyzer in Ohio? Here Is What Happens Next

When a police officer asks you to blow into a breathalyzer, you face a split-second decision with significant consequences either way. Refusing triggers an automatic license suspension under Ohio's implied consent law — but it also means the prosecution has no chemical test evidence to use against you. Understanding what happens after a refusal is critical to defending your case.

When you obtained your Ohio driver's license, you implicitly consented to chemical testing (breath, blood, or urine) if lawfully arrested for OVI. This is Ohio's implied consent law under ORC § 4511.191.

If you refuse a chemical test after a lawful OVI arrest, the officer will confiscate your license and issue you a notice of suspension. Your license is suspended immediately — before any criminal conviction.

• First refusal: 1-year ALS
• Second refusal within 10 years: 2-year ALS
• Third refusal within 10 years: 3-year ALS

Compare this to the ALS for a failed test (BAC 0.08%+): only 90 days for a first offense. The refusal suspension is significantly longer.

If you are convicted of OVI after refusing a breath test, Ohio law imposes enhanced penalties:

• Mandatory minimum 6 days in jail (instead of 3 days for a standard first OVI)
• Or 3 days in jail plus 3 days in a driver's intervention program
• The refusal can be used as evidence of consciousness of guilt at trial

The prosecution can tell the jury that you refused the breath test. They will argue this shows you knew you were impaired and did not want the evidence recorded. Your attorney can counter this argument, but it is a factor to be aware of.

Yes — and you should do so immediately. You have 30 days from the date of arrest to file an appeal of the ALS in the municipal or county court where the OVI charge is pending.

Grounds for appeal include:

• The officer did not have reasonable grounds to believe you were operating a vehicle while impaired
• You were not placed under lawful arrest before the test was requested
• You were not advised of the consequences of refusal
• You did not actually refuse — there was a miscommunication or medical reason

If the ALS appeal is successful, your license is reinstated and the suspension is removed. Even if the appeal is not fully successful, filing it preserves your rights and may result in limited driving privileges sooner.

Even with a refusal ALS, you may be eligible for limited driving privileges — allowing you to drive to work, school, medical appointments, and other essential destinations. However:

• You must wait 30 days after the ALS begins before applying for limited privileges (compared to 15 days for a failed test)
• You must have an ignition interlock device installed if you want privileges during the ALS period

There is no universally right answer to whether you should submit to or refuse a breath test. The decision depends on your specific situation:

Arguments for refusing:

• No BAC evidence for the prosecution to use
• If your BAC was very high, a refusal may result in a better overall outcome than a high-tier OVI conviction
• The prosecution must rely on officer observations and field sobriety tests alone

Arguments for submitting:

• Shorter ALS (90 days vs. 1 year)
• No enhanced criminal penalties for refusal
• If your BAC was close to 0.08%, the test might actually help you

The best time to think through this decision is before you are ever pulled over — not in the moment. Talk to an OVI attorney so you understand your options.

Ohio law requires the officer to read you the BMV 2255 form — the implied consent advisement — before requesting a chemical test. This advisement informs you of:

• The consequences of refusing
• The consequences of failing
• Your right to have an independent test performed

If the officer failed to properly advise you, the refusal may not count and the ALS may be invalid.

Without a breath test, the prosecution's case rests on:

• The officer's observations (odor of alcohol, slurred speech, bloodshot eyes)
• Field sobriety test performance
• Dashcam and bodycam footage
• Any statements you made

Each of these can be challenged. Field sobriety tests are subjective and affected by nervousness, medical conditions, and environmental factors. Officer observations are opinions, not scientific measurements. Statements can be suppressed if Miranda rights were violated.

A refusal case is winnable — but it requires an attorney who knows OVI law and understands how to challenge the evidence the prosecution does have.

Call Rutan Law at 614-307-4343 — available 24/7. We handle OVI refusal cases throughout Ohio and will file your ALS appeal immediately to protect your driving privileges.