The Fifth District upholds a conviction for a refusal OVI after the defendant attempted to take a breath test that did not produce a valid sample, even though police did not subsequently offer a urine test.

State v. Williams, 2016 Ohio 3364 (5th Dist).

https://www.supremecourt.ohio.gov/rod/docs/pdf/5/2016/2016-Ohio-3364.pdf

June 6, 2016

After being arrested for an OVI, an officer attempted to give a breath test to Williams. After notifying Williams of consequences of refusing, Williams, "blew into the tube but did not seal his mouth around the tube/straw of the machine. He also did not exhale enough breath to conduct the test."

This is how the officer described the breath test:

Uh, this would, I believe, fall back under the games category. Um, an eighty year old with one lung can blow into this. It's not hard. It's — anybody can blow into this an I've yet to find somebody who can't unless they're choosing not to. When you — when you blow into it, the machine gives you positive feedback that you're actually blowing into it. This was more of a, hahhahh, just blowing around it, not even letting the machine attempt to do its job.

The officer gave Williams two opportunities to take the breath test but did not offer a urine test. Williams' appealed, claiming that a guilty finding was against the manifest weight of the evidence. The Fifth District disagreed and, without much explanation, concluded "he refused the breath test by failing to properly blow into the breath testing machine."