An Ohio Court of Appeals has ruled that a person charged with Operating under the Influence “OVI” who agrees to submit to a urine test, but cannot produce a sample, should not face an automatic license suspension.
The case is State v. Brown, 2013-Ohio-4981.
The defendant was arrested for operating a vehicle while under the influence of alcohol or a drug of abuse. He agreed to take a breath test; the result of the test indicated that he had a blood alcohol level of 0.000. The police – apparently – suspected drug abuse so they requested that the defendant agree to submit to a urine test. He agreed. However, despite drinking several glasses of water, he was unable to produce a sample.
The police considered this a refusal and, as is required by Ohio law, seized his license and imposed an administrative license suspension.
At a hearing, the police officer testified that the defendant “was not refusing the urine specimen” but “simply could not provide it.” The officer said:
[the defendant consumed quite a bit of water . . . I don't know how he couldn't. I mean, it was very apparent to me that he was trying but just could not produce.
The defendant argued that the evidence presented at trial established that a reasonable person in the position of the requesting officer would believe that appellant did not “refuse” the test but instead was unable to complete it. Therefore, he should not have been subject to a license suspension. The court agreed.
The court noted:
[the defendant] agreed to take the urine test, attempted to provide a sample several times, and drank multiple glasses of water. Additionally, [the defendant] cooperated with the officer’s request for a breath test. It is apparent that [the defendant’s] acts, words, and general conduct did not manifest an unwillingness to submit to the test. The evidence showed that [the defendant] did not refuse the test but instead was physically incapable of completing the test.
The court vacated the administrative license suspension.