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“No Refusal,” as Championed by Prosecutor Walsh, now part of Ohio
law!
On September
30, 2008 the “No Refusal” law went into effect in Ohio, no longer
allowing certain repeat drunk drivers to choose whether they take a
breathalyzer test or not.
Summit County
Prosecutor Sherri Bevan Walsh worked for more than two years with
State legislators to see this change in law. The legislation,
sponsored by Senator Timothy Grendell, strengthens Ohio’s DUI laws
in a number of ways, including the mandatory breathalyzer
provision. The law includes a provision
that when the police have probable cause to believe that someone is
driving drunk and they are repeat offenders – those facing their 3rd
offense in six years, or 6th offense in 20 years – they
would have to take a breath test. If these offenders refuse to
cooperate with a breath test, a blood or urine test can be
performed.
Prosecutor Walsh revisits the “No Refusal” law
After several
months of the “No Refusal” law for repeat drunk drivers being in
effect our office has had the opportunity to successfully prosecute
a woman for Aggravated Vehicular Homicide with a blood test that was
a direct result of the implementation of the “No Refusal” law.
Without this forced test she may have walked away with Justice
shaking its head.
From the
emails and phone calls our office has received from around the
state, it appears that not all jurisdictions are having success with
medical professionals agreeing to take a “forced” draw. One of the
main obstacles with health care professionals is the issue of
liability. In the litigious society we live in, doctors, nurses,
phlebotomists and hospitals (and more importantly their law
departments and attorneys) are concerned about liability.
Some other
medical professionals have even suggested that a forced draw to help
“prosecute” their patient would be an act contrary to their oath to
help their patient. These concerns need to be addressed in order
for us to be able to benefit by our new tool against repeat drunk
driving offenders.
I would like
to point out the “immunity” laws that many health professionals are
unaware of and that may calm their fears (as well as the fears of
their lawyers) and allow them to assist us in doing our job. On a
short note, when one health care provider was advised that the
mandatory draw had a lesser penalty than the refusal’s 1 to 5 years
in prison for Tampering with Evidence, he agreed that he would be of
more help to his patient by assisting with the forced draw!
IMMUNITY FOR HEALTH CARE PERSONNEL AND HOSPITALS/OMVI
Ohio Revised
Code Section 4511.19(F) states:
Except as
otherwise provided in this division, any physician, registered
nurse, or qualified technician, chemist, or phlebotomist who
withdraws blood from a person pursuant to this section of section
4511.191 or 4511.192 of the Revised Code, and any hospital,
first-aid station, or clinic at which blood is withdrawn from a
person pursuant to this section or section 4511.191 or 4511.192 of
the Revised Code, is immune from criminal liability and civil
liability based upon a claim of assault and battery or any other
claim that is not a claim of malpractice, for any act performed in
withdrawing blood from the person. The immunity provided in this
division is not available to a person who withdraws blood if the
person engages in willful or wanton misconduct.
IMMUNITY FOR LAW ENFORCEMENT OFFICERS/OMVI
Ohio Revised
Code Section 4511.191(5)(b) states:
If a person
refuses to submit to a chemical test upon a request made pursuant to
division (A)(5)(a) of this section, the law enforcement officer who
made the request may employ whatever reasonable means are necessary
to ensure that the person submits to a chemical test of the person’s
whole blood or blood serum or plasma. A law enforcement officer who
act pursuant to this division to ensure that a person submits to a
chemical test of the person’s whole blood or blood serum or plasma
is immune from criminal and civil liability based upon a claim for
assault and battery or any other claim for the act, unless the
officer so acted with malicious purpose, in bad faith, or in a
wanton or reckless manner.
As we continue
to work out the wrinkles in using this new law, both Law Enforcement
and their Police Legal Advisors need to work with their local health
care providers and hospitals to develop policies that will not only
be consistent with the laws that have been enacted, but that will
help protect our communities from repeat drunk drivers. Our office
has discussed these laws with our local chiefs and fellow
prosecutors in the cities within our jurisdiction and jointly we
have had discussions with our local hospitals. Through this
cooperative effort we hope to continue to define and redefine the
hospital’s policies and levels of assistance that are consistent
with the intent of the law.
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