(OH) Alcohol tests can be forced

Last Updated: 11:05 am | Tuesday, September 30, 2008
Alcohol tests can be forced
Repeat DUI offenders no longer allowed to refuse

By Kimball Perry

Repeat Ohio drunken drivers who refuse a test to determine the amount
of alcohol in their system could have their blood drawn against their
will under a law that takes effect today.
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The law is aimed at those with a pattern of drunken driving, has some
attention-getting penalties and comes with questions for those who
have to enforce it.

Those subject to the law have had either:

- Two or more convictions in the last six years for operating a
vehicle while intoxicated.

- Or five or more such convictions in the last 20 years.

Prosecutors frustrated when those suspected of driving drunk refuse a
test that will show the amount of alcohol in their system applaud the
law.

"Frankly, the idea behind this is to limit the ability of people to
refuse having their blood or breath tested after they've demonstrated
a pattern of (drunken driving)," Assistant Hamilton County Prosecutor
Brian Goodyear said.

Before the law change, if a suspected repeat drunken driver refused a
blood or breath test, prosecutors would have to use other evidence to
prove in court that the person was under the influence. That includes
testimony from officers who observed the driver, bar employees and
others who saw the amount of alcohol the driver consumed.

Under the new law, the blood test eliminates the need for those
witnesses.

If a repeat drunken driver refuses to submit to such a test, police
can use "reasonable means" to have a medical worker physically take
the blood.

But the controversy is how that will happen.

"I honestly can't answer that," Goodyear said.

Police departments also have questions. Neither the Cincinnati Police
Department nor the Hamilton County Sheriff's Office was sure what
impact the new law will have.

Cincinnati police have made no changes in their procedure to deal with
the law, police spokeswoman Fran Cihon noted Monday.

"We are seeking a legal opinion and guidance from the Prosecutor's
Office prior to establishing a set policy since there is no
established case law," Sheriff's Office spokesman Steve Barnett said.

Cincinnati lawyer Chuck Strain, who specializes in DUI law, calls the
new law too invasive and a violation of drivers' rights. "It doesn't
make me proud that my government is doing that," Strain said.

"The law-and-order types would say, 'Let's burn the *******s.' "

Strain also criticizes the language that says police will use
"reasonable means" to physically take the blood, but doesn't define
reasonable.

"We are tough on the vermin of society - the DUI offenders," he added
sarcastically.

He also notes the new law requires judges to order some punishments
for those convicted under the new law.

For example, it requires those convicted under the new law to have
their name, address and crime posted on a public Internet database.

"It's like being in the public stocks on the green in the center of
town," Strain said.

Then don't repeatedly drink and drive, Prosecutor's Office spokeswoman
Julie Wilson said.

"Driving is a privilege, not a right," Wilson said. "Someone who has
several DUIs is not someone you want next to you or me on the
highway."

The law also applies to those charged with boating under the
influence.
http://news.cincinnati.com/apps/pbcs...S01/809300305/
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- gpsman