Operating a vehicle under the influence of alcohol or drugs (“OVI”) is an offense most people call “DUI,” or driving under the influence. In Ohio, there are two (2) types of OVI/DUI offenses. The most widely understood offense is the per se offense, or in other words, operating a vehicle with a prohibited concentration of alcohol or drugs in your blood, typically in excess of .08 BAC. This offense is based upon a the results of a failed chemical test (i.e. breath, urine, blood, or plasma.) In addition to the per se offense, the second type prohibits operation and/or physical control of a vehicle under the influence. "Under the influence" means that an individual consumed some alcohol, drug of abuse, or combination, whether mild or potent, in such a quantity, whether small or great, that it adversely affected and noticeably impaired the individual's actions, reactions, or mental processes under the circumstances then existing and deprived him of that clearness of intellect and control of himself that he would otherwise have possessed. Remember, it is not a question of the quantity of alcohol (or drugs) consumed but, rather, the effects of that consumption on your nervous system. The second type offense is based primarily upon the observations of the officer in viewing your operation of your vehicle; your interaction with the officer; any statements you make; and your performance on field sobriety tests.
Here is information about OVI/DUI, as well as steps to take in the event you are stopped by the police for allegedly driving while intoxicated.
When You Can Be Stopped
Police can stop your vehicle if they have reason to believe that you, or your vehicle, are subject to seizure for violation of any law; no matter how minor. It could be something as simple as a malfunctioning taillight or as serious as driving left of center. Once stopped, if the officer has reason to believe your impaired – slurred speech, bloodshot eyes, odor of alcohol – he or she will have you step out of the car for field sobriety tests.
Field Sobriety Tests
Field sobriety tests are divided attention tests that assist the officer in formulating probable cause to arrest for OVI/DUI. There are many different tests but the most common are:
- Horizontal Gaze: an eye test to look for nystagmus, or involuntary eye jerking;
- One Leg Stand: balance on one leg for a period of about 30 second; and
- Walk and Turn: walk a straight line using heel-to-toe steps.
If you exhibit enough “cues” – note, you do not pass or fail a test -- the officer will likely arrest you and take you to a detention center and ask you to take a chemical test. It’s important to know that no driver is required to participate in field sobriety testing and you are completely at liberty to politely decline.
A blood alcohol content (BAC) measures the level of alcohol in your blood. The test can be performed by obtaining a breath, blood, urine or plasma sample. In Ohio, .08 BAC will result in being charged with a per se violation of the law; if it is above .17 BAC, greater penalties apply.
Unlike participation in field sobriety testing, there can be significant consequences if you refuse to take a chemical test. In Ohio, drivers are presumed to have given implied consent, meaning that as a condition to holding a driver's license, you implicitly agree to take a blood alcohol content test if you are suspected of drunk driving. If you refuse, your Ohio driver’s license will be immediately suspended for a minimum period of one year; this is much greater than the minimum ninety day suspension that will be imposed for a failed chemical test. Also, refusing to take a BAC test can be used as evidence against you at trial. Moreover, if this is your second offense, a refusal carries a lengthier jail sentence.
In Ohio, the penalties for OVI/DUI vary and are based upon (1) the number of offenses within a six year period of time and (2) the BAC result or whether you refused a BAC. At a very minimum, you’ll face at least three days in jail, a suspension of your Ohio driver’s license, and a substantial fine. Multiple offenses or those with higher BAC results carry more severe penalties.
it is important to have a lawyer review your case to determine the best way to defend. Just because your result was over .08 BAC does not mean that you cannot present a legitimate defense. While each case is different, common areas of defense include:
- Challenging probable cause for the initial stop.
- Challenging the officer’s belief that you were impaired.
- Challenging the officer’s compliance with regulations concerning the instructions and demonstrations of field sobriety tests.
- Challenging the officer’s interpretation of the field sobriety test cues.
- Challenging probable cause to arrest you for OVI/DUI.
- Challenging the maintenance and calibration of the machine used for the chemical test analysis.
- Challenging the process used for the chemical test.
- Good old-fashion “reasonable doubt;” whether or not the prosecutor can meet the burden of proof on each and every element of the offenses charged.
These are just some of the possible defenses when fighting an OVI/DUI charge. There can be others depending on the particular facts of the case. Because raising successful defenses to a DUI charge requires a significant amount of skill, knowledge and expertise, it is essential to have a lawyer's help when fighting a OVI/DUI charge.
Being stopped and arrested for a DUI is an unpleasant and scary time. But if you are arrested, invoke your legal right to remain silent and to have an attorney defend you. Our law firm has significant skill and experience handling DUI cases, and we may be able to successfully get the charges against you dropped or get the penalties reduced. Call us as soon as possible after the arrest, as the sooner we are on your side protecting you, the greater the chance of minimizing the disruption to your life.
Contact an attorney at Triscaro & Associates today. Please call us for all your legal needs. We offer a full range of legal services to individuals, families and businesses, including personal injury, estate planning, real estate, family law and business matters. We are dedicated to providing the highest quality legal services at a reasonable cost.