Posted on Tuesday, February 10th, 2026 at 12:00 pm
When you’re pulled over on suspicion of operating a vehicle under the influence (OVI) in Ohio, the officer may ask you to submit to a breath or blood test. Many people wonder what happens if you refuse a breath or blood test in Ohio. The answer is straightforward: refusing carries serious legal consequences that can affect your driving privileges, your freedom, and your future. Understanding these consequences is critical if you’re facing this situation.
Understanding Ohio’s Implied Consent Law
Ohio law operates under an implied consent framework. When you obtain a driver’s license in Ohio, you automatically agree to submit to chemical testing if a law enforcement officer requests it. For non-commercial drivers, this agreement is codified in Ohio Revised Code Section 4511.191. The implied consent law applies to breath tests, blood tests, and urine tests.
It’s important to understand that refusing to submit to testing is a separate criminal offense from the OVI charge itself. You can face charges for both the refusal and the underlying OVI, even if the prosecution cannot prove you were actually impaired. This dual-charge approach makes refusal cases particularly complex and requires experienced legal representation from a criminal defense attorney who understands Ohio’s OVI laws.
Immediate Consequences of Refusing a Test
The moment you refuse a breath or blood test, administrative penalties take effect immediately—regardless of whether you’re ultimately convicted of OVI. Understanding these immediate consequences of refusing a test is crucial for protecting your rights.
Automatic License Suspension
Your driver’s license suspension is automatic upon refusal. For a first refusal, your license is suspended for one year. If you’ve refused testing before, the suspension period increases: a second refusal results in a two-year suspension, and a third or subsequent refusal leads to a three-year suspension. These suspensions are administrative penalties, meaning they apply even if you’re acquitted of the OVI charge in court. Learn more about how your driver’s license can be suspended for an Ohio DUI.
Important Note on Hard Suspensions: Under Ohio’s Administrative License Suspension (ALS) rules, a first refusal triggers a mandatory 30-day ‘hard suspension’, during which no driving privileges are granted. Effective April 9, 2025 (via HB 37 / ‘Liv’s Law’), if you have a prior conviction for Physical Control, this hard suspension extends to 90 days, and you must install an Ignition Interlock Device (IID) to obtain privileges.
Out-of-Service Order
Upon refusal, your license is immediately suspended (ALS), meaning you cannot drive home from the police station. (Note: The term ‘Out-of-Service’ typically applies specifically to CDL/Commercial holders. For standard drivers, it is simply an immediate administrative suspension). This means you cannot legally operate any motor vehicle during this period, regardless of the circumstances.
Criminal Penalties for Refusal
Refusing a test always carries administrative penalties (license suspension). However, refusal is only a separate criminal offense if you have a prior OVI conviction within the last 20 years. For a driver with no record, a refusal results in license suspension but not a separate ‘Refusal’ criminal charge.
For a first refusal without a prior OVI conviction within 20 years, the penalties are administrative only (no criminal jail time). However, if you have a prior OVI conviction within 20 years, a first refusal becomes a criminal offense carrying up to six months in jail and fines up to $1,000.
If you have a prior OVI conviction within 20 years, the refusal becomes a separate crime. However, for the Administrative License Suspension (ALS) length (1 year vs. 2 years), the BMV typically looks back 10 years. Additional penalties include license suspension of 1 to 7 years, restricted license plates, vehicle immobilization for 90 days, and mandatory ignition interlock device installation. The criminal consequences compound with each subsequent refusal. For more information, see consequences of an OVI/DUI conviction.
Beyond jail and fines, a refusal conviction creates a permanent criminal record. This record can affect employment opportunities, professional licenses, housing applications, and your reputation in the community. Prosecutors can also use your refusal as evidence of consciousness of guilt in court, suggesting to a judge or jury that you refused because you knew you were impaired. Learn about the effects of a DUI conviction on employment.
Why Choose Moermond & Mulligan, LLC
Moermond & Mulligan, LLC has defended clients facing OVI refusal charges for over 30 years. L. Patrick Mulligan, the firm’s founding attorney, is Board Certified as a Criminal Law Specialist by the National Board of Trial Advocacy—a credential held by only 9 to 24 attorneys in Ohio. He’s been recognized as a Top 100 Trial Lawyer and a Top 100 DUI Attorney nationally, demonstrating his specialized expertise in breath test refusal cases.
Brad Moermond, the firm’s co-founder, brings a unique prosecutorial perspective from his years as an Assistant Prosecutor at the Montgomery County Prosecutor’s Office, where he prosecuted hundreds of felony cases. This insider knowledge of how prosecutors build their cases gives the firm a strategic advantage in defending clients. Brad was also named to the National Trial Lawyers Top 40 Under 40 in 2020, recognizing his exceptional trial advocacy skills.
The firm has successfully defended clients in OVI refusal cases, including securing a dismissal when the state destroyed crucial evidence. This case demonstrates the firm’s attention to constitutional requirements and evidentiary issues that can lead to case dismissal. When you work with Moermond & Mulligan, LLC, you’re working with attorneys who understand both sides of the criminal justice system and know how to challenge the prosecution’s case.
Important Distinctions: Preliminary vs. Post-Arrest Testing
A critical distinction exists between two types of breath testing, and understanding this difference is essential to understanding when refusal penalties apply. This is one of the most important aspects of defending against DUI charges in Ohio.
Preliminary Breath Test (PBT) at Roadside
When an officer first pulls you over, they may ask you to perform a preliminary breath test (PBT) using a portable breath device at the roadside. This test is used to establish probable cause for arrest. Importantly, you can refuse a PBT without facing the criminal penalties discussed above. Refusing a roadside PBT does not result in license suspension or criminal charges for refusal. This is a critical distinction that many people misunderstand when facing OVI charges in Ohio. Learn more about what to do if you’re pulled over for a DUI in Cincinnati.
Post-Arrest Chemical Testing
After you’re arrested and taken to the police station or hospital, the officer will request a post-arrest chemical test—either a breath test using an approved breath testing device or a blood test. This is where the implied consent law applies with full force. Refusing this post-arrest test triggers the automatic license suspension and criminal refusal charges. Many people mistakenly believe they can refuse any breath test without consequences; the distinction between PBT and post-arrest testing is crucial. Understanding Ohio’s implied consent law is essential for protecting your rights.
Possible Defenses to Refusal Charges
Even if you refused a breath or blood test, you may have legal defenses available. An experienced OVI defense attorney can challenge the refusal charge on several grounds. Understanding these defenses is why consulting with a criminal defense lawyer immediately after arrest is essential.
Improper Police Procedures
Law enforcement must follow specific procedures when requesting chemical testing. If the officer failed to properly advise you of the implied consent law, failed to read the required warnings, or violated your constitutional rights during the arrest process, the refusal charge may be dismissed. The officer must also use an approved breath testing device and follow proper calibration and maintenance procedures. Issues with field sobriety tests and breath testing devices are common defense strategies. Learn about why DUI breath tests are unreliable and how to challenge them.
Medical Conditions
Some medical conditions can prevent a person from complying with a breath test request. If you have a respiratory condition, severe anxiety, or other medical issues that made it impossible to provide a breath sample, this may constitute a valid defense. Similarly, if you requested a blood test instead of a breath test and the officer refused, this could support a defense. Understanding your legal rights during police interrogation is critical.
Lack of Proper Request
The officer must make a clear, unambiguous request for chemical testing. If the request was unclear or if the officer didn’t properly explain the consequences of refusal, you may have grounds to challenge the charge. This relates to broader issues of evidentiary issues in criminal defense.
Warrant Requirements for Blood Draws
If the officer wanted to obtain a blood sample, they must have either your consent or a warrant. If they attempted to draw blood without a warrant and without your consent, the evidence may be suppressed, potentially leading to dismissal of the refusal charge. Learn more about the Fourth Amendment and drug searches and how it applies to your case.
Frequently Asked Questions
Can I refuse a breath test in Ohio?
You can refuse a breath test, but it’s a crime with serious consequences. Refusing a post-arrest breath test is a first-degree misdemeanor for a first offense. If you have no prior OVI conviction within 20 years, the refusal carries administrative penalties only. However, if you have a prior OVI conviction within 20 years, you face up to six months in jail and fines up to $1,000. Your driver’s license is also automatically suspended for one year, with a mandatory 30-day hard suspension period. However, refusing a preliminary breath test (PBT) at the roadside does not carry these penalties. Learn more about first offense DUI/OVI to understand your specific situation.
Will my refusal be used against me in court?
Yes. Prosecutors can use your refusal as evidence in the OVI case against you. The prosecution may argue that you refused because you knew you were impaired and wanted to avoid providing evidence of your blood alcohol content. A judge or jury may view your refusal as consciousness of guilt, which can influence their decision even without a BAC result. Understanding signs that a DUI case is weak can help you evaluate your defense options.
Can I get my license back after a refusal suspension?
You may be eligible for occupational driving privileges, which allow you to drive for essential purposes like work, school, or medical appointments during your suspension period. To obtain occupational privileges, you must file a petition with the court. Additionally, you have the right to appeal your license suspension within 30 days of the suspension notice. An attorney can help you navigate the appeal process and present arguments for license reinstatement.
What’s the difference between administrative and criminal penalties?
Administrative penalties are imposed by the Ohio Bureau of Motor Vehicles and include your driver’s license suspension and out-of-service order. These penalties are automatic and don’t require a criminal conviction. Criminal penalties are imposed by the court if you’re convicted of the refusal charge and include jail time, fines, and a permanent criminal record. You can face both types of penalties simultaneously.
Can police get a warrant for blood if I refuse?
Yes. If you refuse a breath test, an officer can obtain a warrant to compel a blood draw. The warrant process requires the officer to demonstrate probable cause to a judge. Once a warrant is issued, law enforcement can take a blood sample without your consent. This is why understanding your rights and consulting an attorney immediately after an arrest is critical. Learn about how long police have to charge you with DUI.
How long does a refusal stay on my record?
A refusal conviction is a permanent criminal record. It does not expire or get removed from your record unless you successfully petition for expungement. An expungement removes the conviction from your public record, but eligibility depends on the specific circumstances of your case and your criminal history. An attorney can evaluate whether expungement is available in your situation. Learn about how long a DUI stays on your record in Cincinnati.
What should I do if I’m pulled over and asked to take a test?
If you’re pulled over on suspicion of OVI, remain calm and polite. You have the right to remain silent and should exercise that right—remaining silent is different from refusing a test. Do not answer questions about where you’ve been or whether you’ve consumed alcohol. If the officer requests a chemical test, you can ask to speak with an attorney before deciding whether to submit. However, be aware that requesting an attorney may be used against you. The best course of action depends on your specific circumstances, and consulting with an experienced OVI defense attorney as soon as possible is critical. Review your first steps after a Cincinnati DUI/OVI arrest.
Next Steps: Contact Moermond & Mulligan, LLC Today
If you’ve been arrested for OVI or charged with refusing a breath or blood test in Ohio, you need experienced legal representation immediately. The consequences of a refusal conviction are severe and long-lasting, affecting your driving privileges, your employment, and your freedom.
Moermond & Mulligan, LLC has successfully defended clients facing OVI refusal charges throughout Ohio. With offices in Cincinnati and Dayton, the firm serves clients across southwestern Ohio. Call (513) 421-9790 today to schedule a consultation with an experienced OVI defense attorney. The sooner you act, the sooner we can begin building your defense and protecting your rights.
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Written By: Moermond & Mulligan, LLC
Last Updated: 02-11-2026