OVI/DUI

What is an OVI/DUI?

The Ohio Revised Code Section 4511.19 states that you may be arrested for operating or driving the vehicle while driving under the influence of alcohol (DUI), operating a vehicle while intoxicated (OVI), or operating a vehicle while under the influence, impaired, or intoxicated (OMVI). If you submit to an alcohol test, and you are over .08, then you may be arrested for a per se violation. Surprisingly, if you are under .08, you may still be arrested if you exhibited signs of being intoxicated.

So, you were driving the car while being intoxicated, what does this mean? Basically, you must have consumed some alcohol, whether it is one drink, one sip, or ten drinks that appreciably impairs your actions, reactions, and mental processes which deprives you of thinking clearly. Although the law states that you may be arrested for an OVI if you test a .08 or above, there are several other considerations along with a test. The police must follow proper procedures when stopping you, conducting the field sobriety and alcohol tests, and making the arrest.

The term vehicle includes every device, including a motorcycle, moped, scooter, golf cart, motorized bicycle, and any other device that is moved by power other than human power. This does not include any motorized wheelchair, any electric personal assistive mobility device, any device that is moved by power collected from overhead electric trolley wires or that is used exclusively upon stationary rails or tracks, or any device, other than a bicycle, that is moved by human power. You can be arrested for operating a watercraft under the influence, but these charges are under another section of the Ohio Revised Code. This is a Six-Point license offense, which means you will have 6 points on your license.

Remember that many other factors affect the way alcohol is processed through your body. It depends on your current health condition, height, weight, and amount of food you have digested prior to drinking. Also, a good attorney will research all of officer’s methods in determining that you were over the limit.

High Test DUI/OVI

If your alcohol level is a .17 or above, or .238 (two hundred thirty-eight thousandths) or above in the urine, then you may be arrested for a high test DUI. This is more serious than a low test DUI because the penalties are stricter. If it is your first offense, you must wait at least fourteen (14) days before getting driving privileges and may be required to have yellow plates or an immobilizing device. Your jail time is a mandatory 6 days or 3 days in jail and 3 day driver’s intervention program. Also, your fines range from $250-1,000.00 with a license suspension of 6 months to 3 years.

Physical Control

To be arrested for any of these charges, you must be operating or driving the vehicle while under the influence of alcohol, drugs, or a combination of them. However, the term “operate” means being in control of the vehicle, whether it is moving or not. You may still be arrested even if you are in the vehicle with the keys close at hand or near the ignition. Therefore, you may be arrested for an OVI if you are sitting in the vehicle while it is parked or running with the keys in the ignition, on your lap, in your purse, or in the passenger seat. This is called physical control. Many people have been arrested for trying to do the proper or right thing by “sleeping it off.” But, if you are found asleep in your car on a public street or parking lot, then the cops have a right to investigate whether you are intoxicated.

Drugs and/or Alcohol and OVI

In Ohio it is also illegal to drive under the influence of certain drugs. This is often called “drugged driving.” The following drugs are included:

    • Phencyclidine
    • Methamphetamine
    • Marijuana (different levels for marijuana if it is combined with alcohol)
    • LSD
    • Cocaine
    • Heroin
              Amphetamine

The laws state under §4511.19(G)(1) that “whoever violates this section is guilty of operating a vehicle while under the influence of a listed controlled substance or a listed metabolite of a controlled substance. The issues are that once the drug is a metabolite, it is no longer affecting your system or behavior. Also, you may have used these drugs at an earlier time. If they are still in your system, then they will show up on your tests. Therefore, you could be arrested for being under the influence of drugs, although you certainly were not.

First day in court
Your first appearance is your arraignment. At the arraignment, you will enter your plea and either request an appeal or stay of your ALS (Administrative License Suspension). Also, your attorney may request discovery and look at the documents the prosecutor has to use against you. If you are eligible, you may request driving privileges. Always discuss your work and school schedule with your attorney. It is very important that your attorney obtains your privileges so you can continue with your life while your case is pending.

Court process-Pre-Trial

Prior to the Pre-Trial, your attorney should be fully prepared. Your attorney should have watched the officer’s video of the field sobriety tests, checked the breathalyzer machine’s records, visited the arrest site, and interviewed any potential witnesses. Therefore, your attorney will know the strength of your case. At the Pre-Trial, the prosecutor and your attorney will discuss the case and possibly negotiate a plea. If you decide to take a plea and plead guilty to your offense, then you will go on the record with the court and enter your plea.

Court process-Suppression Hearing

If there are problems with your field sobriety tests, breathalyzer, urine, or blood tests, or the arrest, your attorney will file a Motion to have these tests excluded as evidence. At this hearing, the prosecutor has the burden to prove that these tests were performed in substantial compliance with the rules currently in effect. The current rules are found in the Ohio Administrative Code and the NHTSA Manual. Often, officers fail to give these tests in substantial compliance with the current 2006 rules. Also, officers often make mistakes when conducting these tests. You want your attorney to research whether these tests were correct. At this hearing, the officers will testify as to your performance with these tests and how he conducted the tests. If the court finds that the officer failed to perform these tests with substantial compliance, then the court will exclude them as evidence against you.

Court process-Jury Trial
The final stage in the court process is the jury trial. At the jury trial, both sides will present evidence regarding your arrest and your alleged intoxication in front of a jury. The arresting officers may take the stand and testify as to your behavior, speech, actions, and whether they detected any odor of alcohol. Your attorney will cross-examine the officers and present evidence in your favor. Your attorney may also call witnesses to testify on your behalf. You may testify at this hearing, however it is your decision and right to not testify. After the prosecution and defense have rested, then the jury will return a plea of guilty or not guilty.

Taking the Alcohol Tests

If you decide to submit to any tests, the tests must be conducted by the officer within two (2) hours of the arrest. The test must also be given by a person qualified to conduct the test. This person must also have a permit from the State of Ohio that states they are qualified. If you fail to take the test within 2 hours, then you will have been deemed to “refuse” the test. If you refuse the test, then you have an automatic thirty (30) days before you will get any driving privileges. Also, if you have had any prior OVI/DUI offenses within the past 20 years, then you may not refuse the tests.

First, there are many concerns surrounding the reliability of the breath test and whether a person should submit to testing. In Ohio , officers use the BAC DataMaster, the Intoxilyzer 5000, and the BAC Verifier. These machines measure your breath which is contained in a sample chamber inside the machine. Alcohol absorbs infrared energy inside the machine, so the more alcohol in your system, the higher your breath alcohol reading on your BAC evidence ticket.

Although this is the most popular alcohol testing procedure, and probably the most scientifically approved, there are several problems with the BAC machines. These machines must be calibrated properly. In other words, officers must recalibrate the machines after each test is given. Also, a person with a low oxygen volume may not produce enough air to activate the machine. If this occurs, then the machine will yield an invalid sample. The officers must wait twenty minutes before giving you a second test. If the officers fail to offer a second test after an invalid sample, then they cannot mark this as a refusal.

You must decide whether you want to submit to the breath testing due to the inaccuracies of the test. However, if you refuse to take the test, and the court determines it is a proper refusal, then the Administrative License Agency will suspend your license for a period of one year. Your attorney will review all of the facts and evidence in your case to determine whether you properly refused the test.

Administrative License Suspension (ALS)

If you are stopped for drunk driving and you refuse to take the sobriety test, or if your test results exceed the legal limit of Blood Alcohol Concentration (BAC), the officer can take your driver’s license and you will have an automatic Administrative License Suspension (ALS). The ALS is a separate, civil case against you by the BMV. Depending on previous offenses or refusals, you can have your license automatically suspended for a period of 90 days to five years. The administrative suspension is independent of any jail term, fine or other criminal penalty imposed in court for a DUI offense.

At your arraignment, your attorney will deal with your ALS. It is very important for any attorney to properly request a stay of the ALS (this stays or suspends the ALS and you may continue to drive depending on the circumstances) or appeal the ALS. The ALS must be appealed within a certain time period or you will lose your right to contest the ALS.

Taking Field Sobriety Tests

If the officer has a reasonable suspicion that you are under the influence of alcohol, then you may be asked to submit to a field sobriety test. Always politely ask the officer why he wants you to take the test. It is discouraged to take these tests because an accurate test only yields a reliability rate of 77%.

The officer will ask you to take a series of tests. One of the test is called the Horizontal Gaze Nystagmus (HGN). If you have been drinking, your eyeball will twitch or bounce when the officer moves the pen across your eyes. The officer must make the correct amount of passes when conducting this test. Therefore, the officer often makes two many passes with the pen. Also, there are many other reasons (medications, nervousness, health conditions) which cause the eyeballs to twitch.

The second test is the walk and turn test. The officer will demonstrate to you how you should walk a “straight” line. It is difficult for the officer to find a visible straight line on the side of the road. Further, you must place one foot directly over the other foot and walk in a straight line. Some people may have health conditions, disabilities, or poor eyesight which prevents them from walking a straight line.

The last test is the one-legged stand. During this test, the officer will ask you to hold one leg up for a period of time. The observing officer looks for clues as to whether you can hold your balance. The officer also must first demonstrate this test.

The officers must undergo proper training certified by the National Highway Traffic Safety Administration (NHTSA) before conducting these tests. The NHTSA promulgates strict guidelines for the field sobriety tests. Therefore, it is important that your attorney views the arrest video to determine whether the officer correctly abided by the procedures.

Justifications to Pull You Over

According to recent reports conducted by the National Highway Traffic Safety Administrative, 33% of OVI/DUI arrests occur on State Route 315 ( Franklin County ) and 33% occur on Interstate 270. Officers are cruising these roadways to check for signs of impaired driving. Ohio law requires the officers to have a reasonable, articulable suspicion that a driver is intoxicated. Officers may stop your vehicle for a broken taillight, headlight, turn signal, license plate light, moving left of center, crossing the outside edge line of the highway, speeding, going under ten (10) miles under the limit, weaving, stopping erratically, hitting roadway signs or objects, failing to signal, using wrong turn signal, signaling too early, making U-turns, going the wrong way, or other traffic violations.

Always politely ask the officer why he pulled you over. No matter the circumstances, always cooperate with the officer if he requests your license and registration. It is rightfully your decision on whether to submit to any of the tests, but the officer always has the right to request your identification and registration. Your attorney may challenge the officer’s decision to pull you over at the suppression hearing.

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