DUI / OVI Defense
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For most people, being charged with drunk driving is the first time that they have been accused of a crime. It is a confusing and frightening experience that can involve harsh consequences. Your liberty and right to drive is at stake. If you are someone who must drive for work, your livelihood might also be in jeopardy. For this reason, it is important that you obtain experienced legal counsel that will fight for you and protect your rights.
You are presumed to be innocent and the State must prove your guilt beyond a reasonable doubt.
Difference between an OVI and DUI?
It is illegal to operate a vehicle in the State of Ohio while impaired by alcohol or a drug of abuse. What is commonly referred to as a DUI (Driving Under the Influence) or drunk driving is referred to under Ohio Law as an OVI (Operating a Vehicle While Under the Influence). The terms are the exact same. Lawyers will use the term OVI. The media and most other non-lawyers will refer to an OVI as a DUI.
Penalty for an OVI Offense
An OVI charge is a First Degree Misdemeanor, which carries a maximum penalty of 180 days in jail and a $1,000 fine. OVI laws are fairly unique because they also carry statutory minimum penalties. The minimum penalty for an OVI conviction depends on the number of previous convictions.
An individual who is charged with an OVI can be charged under the Laws of Ohio or the laws of the city in which they were arrested. Under Ohio Law previous convictions are only considered if they happened within the previous 6 years. Most city and municipality laws also only consider convictions within 6 years. However, a few municipalities will consider all previous convictions regardless of when they occurred. This means that a conviction from 20 years ago could affect your current case.
High Level OVI Tests
The penalties are increased for a "High Test" OVI. The breathalyzer test measures blood alcohol content. It is illegal to operate a vehicle with a blood alcohol content of greater than 0.08%. However, the penalties are increased for individuals with a blood alcohol content that is greater than 0.17%. The increased penalties are demonstrated in the chart below.
Minimum Penalties in the State of Ohio
|1st Offense (Low Levels)
|1st Offense (High Levels)
|2nd Offense (Low Levels)
|2nd Offense (High Levels)
|3rd Offense (Low Levels)
|3rd Offense (High Levels)
Alcohol Intervention Programs
Under Ohio Law, someone who is convicted of an OVI can attend an alcohol intervention program instead of going to jail. These programs consist of three days of alcohol education in a residential facility. They are usually held at a hotel and you are not permitted to leave the grounds for the entire three day period. There is no physical restraint like being held in jail. You are free to leave the premises, but it will result in your being terminated from the program.
The alcohol awareness program can be substituted for three days of incarceration. If you are given first offense low test penalties, the program will be a compete substitute for jail. If you are given first offense high test penalties, you will have to complete the program in addition to three days in jail.
Private Residential Facilities, Work Release and Home Arrest
As can be seen above, someone with multiple OVI offenses can be looking at a significant jail term. The minimum sentences must also consist of consecutive days in jail. The court is not allowed to break up the minimum sentence into several shorter periods of incarceration.
Private facilities are available in these situations for a manageable fee. While certainly not a vacation, they offer a more comfortable option than the county jail.
Work release and home arrest can also be arranged in certain circumstances. These arrangements can be vital for individuals who cannot afford to miss any significant time away from work.
Administrative License Suspension
Under Ohio Law, the BMV has the right to suspend your driver's license if you refuse to take the breathalyzer or take the test and fail. This can be done immediately without you having the right to a hearing before a judge or jury. The license suspension is longer if you refuse the test than if you fail the test. This is the one of the more commonly used tactics by the police to encourage individuals to take the breathalyzer test.
The length of the suspension is based upon the number of times that you have been convicted of an OVI or previously refused the breathalyzer test within the past six years.
|Prior Offenses or Refusals
||Refusal of Test
|3 or More Priors
Depending on the facts of your case, it is usually possible to appeal your administrative license suspension. Your license will be returned and the suspension will be place on hold until the appeal can be heard by the court. This typically occurs at the arraignment and will allow you to have full driving rights during the term of your case. Even if your license is not returned to you at arraignment, limited driving privileges can be granted that will allow you to drive for work and/or school.
General Advice to OVI Suspects
Breathalyzer and Other Chemical Tests
Under Ohio Law, you have the right to refuse to take any breathalyzer or other chemical test. In most situations, the arresting officer will try multiple ways to pressure you into taking the breath test. This will include statements that refusing the test will subject you to harsher penalties and a longer license suspension.
Whenever someone is pressuring you to do something, it is usually in your best interest to do the exact opposite. Refusing the breath test is no different. Taking the breath test is the number on mistake made by OVI suspects. If you are being investigated for an OVI, you should politely inform the officer that "Under advice of counsel I respectfully refuse any breath or other chemical tests."
Smile…You're on Camera
It is important to remember that your entire interaction with the police will be audio and video recorded. This often helps your case by preventing the arresting officer from exaggerating or misleading the jury. It can also be extremely damaging to a case if you do not watch what you say or be careful how you act.
This is especially true when you are left alone in the police cruiser. If an officer decides to arrest you for OVI, they will place you in the cruiser alone while they search your vehicle. Unfortunately, I have had many clients who are unaware that they are being recorded and make incriminating statements that provide damaging evidence against them.
Officers will also attempt to engage you in unrelated conversation while they transport you back to the police station. The officer is getting you to talk so that you will say something stupid or otherwise make a fool out of yourself. It is important to be polite and respectful to all law enforcement officers, but you should try to keep unnecessary conversation to a minimum.
If you are pulled over under suspicion of OVI you should assume that every second will be recorded and scrutinized by a judge or jury.
Cases with Breath Tests
If you have taken and failed the breath test, that doesn't mean that your case is unwinnable. There are various regulations created by the State of Ohio that require that the testing equipment be properly calibrated and that the test is performed in a certain manner. If you have failed a chemical test, you need an attorney who understands the calibration and testing procedures so that erroneous tests can be properly challenged.
Traffic Stop and Investigation
You have the constitutional right to be free from unreasonable interference from the police. The police cannot randomly stop vehicles to search for impaired drivers. They cannot force someone to perform field sobriety tests unless they have a reasonable suspicion that they are under the influence. When a police officer violates your constitutional rights, the evidence that they obtained cannot be used against you in court. Many times there are problems with the actions of the arresting officer that result in the client avoiding an OVI conviction.
Field Sobriety Tests
When an officer is investigating an individual for suspected OVI they will ask the suspect to perform field sobriety tests. These are tests of coordination and concentration that are used to judge your level of impairment. Although these tests are scientifically valid, there are two major problems with the tests.
First, the tests are unreliable if they are not properly performed. An individual test can be excluded from evidence or discredited with the jury if the arresting officer does not follow proper procedures.
Secondly, there is a great deal of interpretation in the officer deciding whether you have passed or failed a test. Success on the test is based upon the absence or presence of "Clues of Impairment". If a certain number of clues are present, a test is considered to be failed. Many of the clues are subjective and open for interpretation. Despite the scientific nature of the test, judgments regarding the presence or absence of the clues of impairment can affect its accuracy.
Horizontal Gaze Nystagmus Test
A nystagmus is the involuntary twitching of the eye muscles. The Horizontal Gaze Nystagmus Test or "HGN" Test measures an individual's nystagmus to determine alcohol impairment. All individuals exhibit a nystagmus when their eyes are turned to a maximum horizontal deviation. The angle at which the eye begins to exhibit a nystagmus ("onset angle") and the amount of twitching in the eye at maximum deviation changes when someone is impaired by alcohol.
The officer has the suspect follow an object with his eyes horizontally across his field of vision. They will check for whether the nystagmus begins before the eyes are rotated to an angle of 45 degrees. They will also check for increased nystagmus at maximum deviation. This test measures an involuntary reaction to alcohol and can be difficult to fool. However, there are weaknesses.
First, the test must be performed properly. There are important procedures that must be followed by the officer. If the procedures are not adhered to, the results will be unreliable. The second weakness is that the measurement of an individual person's nystagmus is a relative measurement. The onset angle and amount of nystagmus is changed by the consumption of alcohol, but it varies for each person. Multiple factors could result in someone having a higher than normal nystagmus. The field sobriety test is the one and only time the officer has ever performed the test on that individual. He has no reference point to judge that a nystagmus is increased relative to that individual.
Walk and Turn Test
Alcohol impairs both coordination and concentration. The walk and turn test is an attempt to measure a suspect's coordination and their ability to pay attention to instructions. The test starts with the suspect standing still, with one foot heel to toe in front of the other. At that time the officer will instruct the suspect on how to perform the test. This is a test of the suspect's concentration. The officer is testing the suspect's ability to listen to and remember the instructions while also focusing on balancing in an awkward position.
The suspect is told to walk nine heel to toe steps in a straight line, pivot and take nine heel to toe steps back to the starting point. Success on the test depends on the presence of several clues of impairment. Some clues are tests of coordination, such as whether the suspect is able to walk a straight line, maintain their balance or make the steps in a heel to toe fashion. The other clues test concentration, such as whether the suspect takes the correct number of steps or turns as instructed. The officer has a checklist for the clues of impairment. If a sufficient number of clues are present, the officer will flunk the suspect.
Although this test is a scientifically valid means to test for impairment, it is not without its weaknesses. The test only gives a probability that an individual is impaired. It is possible for a sober person to flunk and for an impaired person to pass. There is also a great deal of interpretation allowed in detecting the clues of impairment. Some officers will be very liberal in what they determine to be a loss of balance or failing to walk in a straight line. Nobody has perfect coordination, and you would not expect someone to perform the test error free.
Fortunately, today's technology allows for the performance on this test to be videotaped. The jury will be able to see your performance on the Walk and Turn Test. In my experience, a jury will usually ignore an officer's overzealous interpretation of the test and substitute their own experience and common sense.
One Leg Stand
The One Leg Stand Test is similar to the Walk and Turn Test, but is more focused on coordination than concentration. The suspect is made to stand on one leg with their arms to their sides and count to 30. The officer is looking for clues of impairment that include putting the raised foot down, lifting the arms for balance and swaying. The analysis of this test is similar to that of the Walk and Turn. The test is usually videotaped, which will either be very helpful or harmful to your defense.
If you have been charged with an OVI it is important to remember that you are presumed innocent. The State must prove your guilt beyond a reasonable doubt. Sometimes it is in your best interest to resolve the case without a trial. Sometimes a resolution cannot be reached and it is in your best interest to proceed to trial. You need an attorney who is able to communicate the strengths and weaknesses of your case so that you can make an intelligent and informed decision on how to proceed with your case.
Probation and Substance Abuse Treatment
If you are convicted of an OVI or related charge, there is the possibility of being placed on probation. Probation requires that you meet certain requirements imposed by the Court. This can include: drug and alcohol treatment; paying for any damages to persons or property; being prohibited from consuming alcohol; and/or, various other conditions on your behavior.
Violations of the terms of your probation can result in additional sanctions or even jail time.
Even if you meet the requirements of your probation, having to report to a probation officer can interfere with your work and family life. Anytime that you choose to resolve an OVI, probation is an important consideration that is often overlooked.