State v. Smith

In State v. Smith, 11th Dist. Nos. 2006-P-0101, 2006-P-0102, 2008 Ohio 3251, the defendant had been pulled over for drunk driving and was transported by the officer to the Highway Patrol post, where he began to take the Breathalyzer test. The defendant began blowing into the machine, stopped, started again, and stopped again. The machine generated an "invalid sample" reading. Because the defendant indicated he understood the instructions and did not state he was unable to take the test, the trooper interpreted his conduct as a refusal to take the test. The court, in declining to suppress the defendant's refusal in Smith, stated, "Nothing in the record indicates appellant was physically unable to provide the breath sample necessary to obtain a valid reading. In light of appellant's conduct, the trooper concluded that appellant was deliberately attempting to invalidate the reading. Viewing the evidence in its totality, we therefore hold, a reasonable officer could conclude: (1) appellant was capable of refusing the test and; (2) his conduct manifested an unwillingness to take the test. Such facts are sufficient to rise to the level of a constructive refusal. The trial court did not err in denying appellant's motion to suppress on this issue." State, at P23.