Steve Palmer [00:00:00]:

All right, Steve Palmer here. LawyerTalkPodcast.com today I'm going to talk about. I'm going to go back to some DUI stuff because I'm getting questions in some of the comments and actually some of the specific questions. But I'm not going to read a specific question here today because they sort of danced around this topic and I want to cover it. I think what everybody's getting at is this. When I talk about, everybody hears about breath testing and should I take the test, should I refuse the test? And, you know, a lot of lawyers will say always refuse. Some will say sometimes refuse. I'm not going to dig into that.

Steve Palmer [00:00:26]:

But. But you can refuse a breath test. Now, I hear tell that there are places around the world where you can't. In other words, if you go to Europe, they force you to take a breath test. Now, I don't know what that means because how do you force somebody to take a breath test? You can always, I would think you could always just say, no, refuse. I'm not going to breathe. Go on a hunger strike or do whatever you're going to do and eventually you're going to get away with it. But I think what they're really saying is there's a consequence if you refuse a breath test.

Steve Palmer [00:00:56]:

And that's the same in most states. And here in Ohio specifically, everybody says, well, I have a right to refuse a breath test. You sort of do and you sort of don't. We operate, most of the law sort of operates in this nebulous term called implied consent. And what does that mean? Well, that means that when you drive, when we get a driver's license that is issued to us from the state, and by the way, it's not a constitutional right to drive. It's a privilege, not a right. So when I sign up for a driver's license, I am impliedly agreeing to certain things. And by driving, I am impliedly agreeing to take a breath test or a urine test or blood test, a little bit different.

Steve Palmer [00:01:35]:

I'll leave those out for reasons that will be clear in a minute, but at least I'm impliedly consenting to a breath test. Well, what's that mean? When the cop has got me on the side of the road and says, I'm going to take you down to the station house, son, and we're going to take a breath test and I'm going to say, go pound salt. But I've already consented. He says, but you've impliedly consented. I'm going to say, I Don't care. I'm not doing it. What implied consent means is that there can be a consequence for not taking a breath test. So it's not like they're going to handcuff you, hold you down, and make you blow into a tube and register a result, but they can punish you for not.

Steve Palmer [00:02:09]:

Or they can deliver a consequence if you say, no, I'm not taking a breath test. In Ohio, that consequence is an immediate license suspension, called an administrative license suspension. Literally, on the side of the road, the cop is wearing the hat of our department in Ohio, we have a Bureau of Motor Vehicles, and he grabs your license right away because he's wearing the BMV hat. He's also wearing the cop hat conducting the stop. But on behalf of the bmv, if you say no to a breath test, he's going to grab your license, and now you're suffering an immediate suspension. So although you have consented to the breath test, you didn't physically do it, and your consent means that you're sort of agreeing that, all right, if you do this, there's a consequence. It's sort of like when you punish your kid. Look, I told you, if you didn't clean your room, you're going to be grounded without your Xbox for a week.

Steve Palmer [00:02:54]:

So when he doesn't clean his room, I go up and say, look, buddy, sorry, you consented to this. These were the rules that we agreed to. Now you lost your Xbox, have a temper tantrum. I don't care. So implied consent is actually. This concept is not just Ohio alone. It's gone all the way up. There's a Supreme Court case on point called Burchfield vs.

Steve Palmer [00:03:14]:

North Dakota, where basically it allowed this concept of implied consent and a consequence where you didn't take a breath test. Blood tests can be treated a little bit differently because they're considered more invasive. So I'm not going to dig into that rabbit hole for this purpose. But when we say you can refuse the test, what we're really saying is there's a consequence to refusing the test. You consider that consequence, and you may still want to refuse the test. If I refuse a breath test that I know I'm going to fail, then at a minimum, I guess I'm not giving the police or the prosecutors that evidence against me, but I can be punished. I'll put that in quotes. There can be a consequence delivered.

Steve Palmer [00:03:53]:

Punish is a. We got to be careful with that word for other reasons. But there can be a consequence for that decision because of the implied consent rules. Hope that makes sense. If it doesn't make sense, shoot me a comment, send me a question. I'll try to cover it more. I could probably spend hours on this topic and a lot of in my world where we sort of geek out on this stuff, we probably do. But anyway, check it out.

Steve Palmer [00:04:16]:

Lawyertalkpodcast. Com. Send me a question, shoot me a comment. Off the record, on the air till now.