I’m explaining the confusing world of DUI breath tests and answering one of the most common questions I get: should you take a breathalyzer if police stop you?

Based on real questions from listeners and my own experience as a lawyer, I'm breaking down the concept of “implied consent”—that idea that just by driving in Ohio (and most other states), you’re agreeing to breath testing whether you realize it or not.

I explain what really happens if you refuse to take a breath test, clear up some common myths, and get into the details of how the law treats your so-called “right” to refuse.

Whether you might face this situation yourself or you just want to understand how these laws work, I’m here with practical advice and smart legal insight.

Here are 3 key takeaways for anyone who drives:

• Implied Consent is Real

When you get a driver’s license, you’re implicitly agreeing to submit to breath tests if stopped by law enforcement—not just in Ohio, but across much of the U.S.

• You Can Refuse, But There Are Consequences

Refusing a breathalyzer isn’t as simple as just saying “no.” In Ohio, for example, refusal leads to an immediate administrative license suspension—the officer can literally take your license on the spot.

• It’s About Evidence & Risk

While refusing a test may keep law enforcement from getting direct evidence, it doesn’t mean you avoid penalties. The decision to submit or refuse is nuanced and should factor in both the legal and practical consequences.

Got a question you want answered on the podcast? Call 614-859-2119 and leave us a voicemail. Steve will answer your question on the next podcast!

Submit your questions to www.lawyertalkpodcast.com.

Recorded at Channel 511.

Stephen E. Palmer, Esq. has been practicing criminal defense almost exclusively since 1995. He has represented people in federal, state, and local courts in Ohio and elsewhere.

Though he focuses on all areas of criminal defense, he particularly enjoys complex cases in state and federal courts.

He has unique experience handling and assembling top defense teams of attorneys and experts in cases involving allegations of child abuse (false sexual allegations, false physical abuse allegations), complex scientific cases involving allegations of DUI and vehicular homicide cases with blood alcohol tests, and any other criminal cases that demand jury trial experience.

Steve has unique experience handling numerous high-publicity cases that have garnered national attention.

For more information about Steve and his law firm, visit Palmer Legal Defense.

Copyright 2025 Stephen E. Palmer - Attorney At Law

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Circle 270 Media Podcast Consultants

Circle 270 Media® is a podcast consulting firm based in Columbus, Ohio, specializing in helping businesses develop, launch, and optimize podcasts as part of their marketing strategy. The firm emphasizes the importance of storytelling through podcasting to differentiate businesses and engage with their audiences effectively. www.circle270media.com

All right, Steve Palmer here. LawyerTalkPodcast.com today I'm going to talk about. I'm going to go back to some DUI stuff because I'm getting questions in some of the comments and actually some of the specific questions. But I'm not going to read a specific question here today because they sort of danced around this topic and I want to cover it. I think what everybody's getting at is this. When I talk about, everybody hears about breath testing and should I take the test, should I refuse the test? And, you know, a lot of lawyers will say always refuse. Some will say sometimes refuse. I'm not going to dig into that.

But. But you can refuse a breath test. Now, I hear tell that there are places around the world where you can't. In other words, if you go to Europe, they force you to take a breath test. Now, I don't know what that means because how do you force somebody to take a breath test? You can always, I would think you could always just say, no, refuse. I'm not going to breathe. Go on a hunger strike or do whatever you're going to do and eventually you're going to get away with it. But I think what they're really saying is there's a consequence if you refuse a breath test.

And that's the same in most states. And here in Ohio specifically, everybody says, well, I have a right to refuse a breath test. You sort of do and you sort of don't. We operate, most of the law sort of operates in this nebulous term called implied consent. And what does that mean? Well, that means that when you drive, when we get a driver's license that is issued to us from the state, and by the way, it's not a constitutional right to drive. It's a privilege, not a right. So when I sign up for a driver's license, I am impliedly agreeing to certain things. And by driving, I am impliedly agreeing to take a breath test or a urine test or blood test, a little bit different.

I'll leave those out for reasons that will be clear in a minute, but at least I'm impliedly consenting to a breath test. Well, what's that mean? When the cop has got me on the side of the road and says, I'm going to take you down to the station house, son, and we're going to take a breath test and I'm going to say, go pound salt. But I've already consented. He says, but you've impliedly consented. I'm going to say, I Don't care. I'm not doing it. What implied consent means is that there can be a consequence for not taking a breath test. So it's not like they're going to handcuff you, hold you down, and make you blow into a tube and register a result, but they can punish you for not.

Or they can deliver a consequence if you say, no, I'm not taking a breath test. In Ohio, that consequence is an immediate license suspension, called an administrative license suspension. Literally, on the side of the road, the cop is wearing the hat of our department in Ohio, we have a Bureau of Motor Vehicles, and he grabs your license right away because he's wearing the BMV hat. He's also wearing the cop hat conducting the stop. But on behalf of the bmv, if you say no to a breath test, he's going to grab your license, and now you're suffering an immediate suspension. So although you have consented to the breath test, you didn't physically do it, and your consent means that you're sort of agreeing that, all right, if you do this, there's a consequence. It's sort of like when you punish your kid. Look, I told you, if you didn't clean your room, you're going to be grounded without your Xbox for a week.

So when he doesn't clean his room, I go up and say, look, buddy, sorry, you consented to this. These were the rules that we agreed to. Now you lost your Xbox, have a temper tantrum. I don't care. So implied consent is actually. This concept is not just Ohio alone. It's gone all the way up. There's a Supreme Court case on point called Burchfield vs.

North Dakota, where basically it allowed this concept of implied consent and a consequence where you didn't take a breath test. Blood tests can be treated a little bit differently because they're considered more invasive. So I'm not going to dig into that rabbit hole for this purpose. But when we say you can refuse the test, what we're really saying is there's a consequence to refusing the test. You consider that consequence, and you may still want to refuse the test. If I refuse a breath test that I know I'm going to fail, then at a minimum, I guess I'm not giving the police or the prosecutors that evidence against me, but I can be punished. I'll put that in quotes. There can be a consequence delivered.

Punish is a. We got to be careful with that word for other reasons. But there can be a consequence for that decision because of the implied consent rules. Hope that makes sense. If it doesn't make sense, shoot me a comment, send me a question. I'll try to cover it more. I could probably spend hours on this topic and a lot of in my world where we sort of geek out on this stuff, we probably do. But anyway, check it out.

Lawyertalkpodcast. Com. Send me a question, shoot me a comment. Off the record, on the air till now.