An Ohio Court of Appeals, in a Criminal Appeal fo an OVI conviction, held that refusing to submit to a breath or blood test does not constitute tampering with evidence.
The case is State v. Simin, 2012-Ohio-4389.
The Defendant was observed by the police at 3:00 a.m. stopped at a green light. The officer observed the car cross over two lanes without signaling to turn right onto the entrance ramp to an Interstate. The officer followed the car and witnessed several additional traffic violations.
When the office spoke with the defendant, he detected a strong odor of alcohol and observed that his eyes were glassy and bloodshot. The officer then performed two field sobriety tests. The defendant stopped while performing the second test and refused to submit to further testing. He was arrested and charged with OVI, operating a vehicle under the influence (a/k/a drink driving).
The defendant refused to consent to a breathalyzer test at the police station. Because he had five prior OVI convictions, the police transported him to a local hospital for a blood draw test. The blood draw test never took place, however, because the defendant would not cooperate with the test and the hospital refused to perform a forced blood draw.
The court threw out a tampering with evidence charge. The State’s theory to support the charge is that, by refusing to submit to a breathalyzer or blood alcohol test, the defendant knowingly concealed evidence in an ongoing investigation.
The court reasoned that the defendant “did not actively ‘conceal’ evidence in this case by refusing to submit to a blood draw test. His refusal was not an overt act.”
The courts; decision was supported by the fact that a separate statute makes it a criminal offense for some drivers to refuse to take a chemical test when facing OVI charges. The court reqlied on other decisions holding that the tampering statute does not encompass false statements knowingly made in the course of an investigation as false statements are governed by the crime of falsification.
One of the defendant’s arguments was that the field sobriety test should not have been admissible because the State failed to prove that the officer substantially complied with National Highway Traffic Safety Administration (NHTSA) guidelines when he administered the tests.
The court rejected this argument. The office testified that he relied upon NHTSA guidelines in performing the horizontal gaze nystagmus test and the one-leg stand test. Even if the officer’s testimony was lacking in many details of the NHTSA standards, the court reasoned that the defendant did not suffer any prejudice because the officer could testify regarding his observations made during administration of the tests in order to show that the defendant was intoxicated.