Frequently Asked Questions About OVI/DUI
What Is The Criteria For A DUI Or OVI?
In Ohio, if you submit to an alcohol test that indicates your blood alcohol content is over .08, you will be arrested for OVI. You can also be arrested if you are under that level, but display signs of intoxication.
OVI can be charged if you are operating any kind of vehicle, including a motorcycle, moped, golf cart, scooter or any vehicle that is motorized (not including motorized vehicles).
What Is A High Test OVI/DUI?
If you test above .17, you may be charged with high test DUI. This carries stricter penalties, including a 14-day loss of driving privileges, an immobilization device, jail time and fines from $250-$1,000, as well as a license suspension from six months to three years.
What Is The DUI/OVI Process?
You will face an arraignment where you will enter your plea and either appeal or accept your administrative license suspension (ALS). A skilled attorney can represent you during this process and advocate for a lesser penalty based on the evidence that has been uncovered.
Court Process — Pretrial ( back to top)
Prior to the pretrial, your attorney should be fully prepared. Your lawyer 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 pretrial, 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 ( back to top)
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 ( back to top)
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 ( back to top)
If you decide to submit to any tests, the tests must be conducted by the officer within two 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 he or she is qualified. If you fail to take the test within two hours, then you will have been deemed to refuse the test. If you refuse the test, then you have an automatic 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 20 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) ( back to top)
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 ( back to top)
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 or she wants you to take the test. It is discouraged to take these tests because an accurate test only yields a reliability rate of 77 percent.
The officer will ask you to take a series of tests. One of the tests 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 too 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 ( back to top)
According to recent reports conducted by the National Highway Traffic Safety Administration, 33 percent of OVI/DUI arrests occur on State Route 315 (Franklin County) and 33 percent 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 under10 miles under the limit, weaving, stopping erratically, hitting roadway signs or objects, failing to signal, using a wrong turn signal, signaling too early, making U-turns, going the wrong way, or other traffic violations.
Always politely ask the officer why he or she pulled you over. No matter the circumstances, always cooperate with the officer if he or she 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.
Sentences And Penalties And Driving Privileges ( back to top)
Table 1: OVI Penalties And Privileges
Note: In most cases, the sentence will also include community control and alcohol treatment programs.
Please contact Laura Helmbrecht to schedule a consultation to discuss your case.