Vitaly Simin became the first person prosecuted for and convicted of tampering with evidence because he refused to blow. He was sentenced to three years in prison for that and his sixth DWI conviction.
Ms. Walsh was, understandably, elated after gaining a conviction based on a law that makes the Fifth Amendment a joke in Ohio.
"The law is now clear that drunk drivers cannot refuse to take a breath test. It is mandatory, and the jury agreed that Mr. Simin broke that law and deserved prison time. Bottom line: It doesn't pay to refuse to cooperate. It will increase your sentence." -- Sherri Walsh, Summit County (OH) prosecutor
Refusing a breath test is not tampering with evidence. The evidence of Mr. Simin's intoxication consists of the officer's observation of Mr. Simin's driving, the smell of alcohol on his breath, his admission to drinking, any other observations that might be consistent with intoxication and how he did on any police coordination exercises that were administered. Mr. Simin's alcohol concentration is only evidence if he a breath or blood sample is taken and tested -- if there was no test, there is no evidence of his alcohol concentration. If there is no evidence, there is nothing with which to tamper.
This is just another example of the extremes to which prosecutors and legislatures will go to strip the constitutional rights of motorists. Prosecutors know that DWI cases can be hard to prove and they are willing to go to any length to force a defendant to incriminate himself.
I've said it before, and I will say it again, a motorist pulled over on suspicion of DWI has fewer rights than any other individual in this country.
"South Euclid man first guilty under new 'No Refusal' OVI law" WKYC.com (Feb. 9, 2010)