Refusing a Breath Test and Offering to Take a Urine Test is Still an OVI Refusal - DUI News - 7/22/2016

The 8th District holds that it is still an OVI refusal when a person refuses a breath test but offers to take a urine test because, "it was not her option to decide which test would be administered."

City of Cleveland v. McCane, 2016 Ohio 3459 (8th Dist.).

June 16, 2016

McCane was convicted of an OVI and an OVI refusal.  She appealed.  The 8th District first reviewed whether there was sufficient evidence to convict her of the OVI.  It found the following facts supportive of a conviction:

  • She was speeding at 70 to 90 mph.
  • She repeatedly changed lanes.
  • She did not stop with the officer activated his lights.
  • She gave the trooper her bank card instead of her driver's license.
  • The trooper detected the odor of alcohol.
  • She seemed dazed and here eyes were bloodshot and glassy.
  • She did not answer whether she had been drinking.
  • She failed the HGN test, closing her eyes several times, as well as the walk-and-turn test.

Although McCane explained that she was very upset about a disagreement she was having with her spouse and about being pulled over, that she had closed her eyes during the HGN due to snow flakes falling in her eyes, and had difficulty with the walk-and-turn due to it being cold, the 8th District upheld the conviction.

The 8th District also rejected her argument that she should not be convicted of an OVI refusal because, although she refused the breath test, she did offer to take a urine test.  The 8th District held that, "it was not her option to decide which test would be administered."