If you ever question why an attorney would fight so hard for the accused drunk driver look no further than the decision (recently affirmed at Middleburg Hts. v. Henniger, 2006-Ohio-3715) setting forth the US Supreme Court DUI exception to the Fifth Amendment.  The United States Supreme Court has held that the admission of evidence at trial of a defendant's refusal to take a chemical test does not violate the defendant's Fifth Amendment privilege against self-incrimination or the Fourteenth Amendment right to due process. South Dakota v. Neville (1983), 459 U.S. 553, 564-566. Following Neville, the Supreme Court of Ohio has held that the trier of fact may consider a defendant's refusal to submit to a chemical test as evidence in deciding whether the defendant was under the influence of alcohol. Maumee v. Anistik (1994), 69 Ohio St.3d 339, syllabus; see, also, State v. Spurlock (Dec. 15, 1995), Portage App. No. 95-P-0067.

The following language was taken from the recently decided Middleburg v. Henniger, cited above:

Ohio, like South Dakota in Neville, has adopted an implied consent statute, which is outlined in R.C. 4511.191. The consent statute spells out a bargain between drivers and the state. In exchange for the use of the roads within the state of Ohio, drivers consent to have their breath tested if a police officer has reason to believe the driver is intoxicated. Because an OVI suspect is already deemed to have consented to the breath test, "no impermissible coercion is involved when the suspect refuses to submit to take the test." Neville, 459 U.S. at 562.

Here, as in Neville, there was no compulsion. The state did not directly compel Henniger to refuse the test; rather the state gave Henniger a choice. We recognize, of course, that the choice to submit or refuse to take a breath test will not be an easy or pleasant one for a suspect to make, but "the criminal process often requires suspects and defendants to make difficult choices." Neville, 459 U.S. at 759.

Since Ohio has long accepted the principle that a defendant's refusal may be used in considering whether the defendant is under the influence, we see no distinction in the use of that same refusal as an element to enhance a minimum term of imprisonment. If it is admissible for one, it is equally admissible for the other. To require Miranda warnings before using a defendant's refusal would be akin to requiring Miranda warnings for targets during a conspiracy investigation. "The right to refuse the blood alcohol test, unlike the right to remain silent in a police interrogation, was a matter of legislative grace, not constitutional imperative; and (2) the warnings given to Neville by the police officers, unlike Miranda warnings, did not contain `implicit assurances as to the relative consequences of his choice' whether to take the test." South Dakota v. Neville, 459 U.S. at 565. Neville thus reaffirms that due process is denied only when the government induces a defendant's post-arrest silence with the assurance that such silence will not be used against the defendant. United States v. Quinn (4th Cir. 2004), 359 F.3d 666, 678.