In Ohio, the terms “OVI” and “DUI” mean essentially the same thing and are used interchangeably to denote the offense of Operating a Vehicle Under the Influence of Alcohol or Drugs of Abuse. Persons charged with OVI / DUI should seek legal counsel immediately in order to ensure that their rights and interests are properly and fully protected.
A successful defense against such a charge involves a thorough investigation, a critical review of the subjective claims of law enforcement, evaluation of police adherence to constitutional standards, and understanding the interaction of statutory law with court procedure and administrative rules.
The most basic and frequently charged Ohio OVI / DUI offenses under Ohio Revised Code section 4511.19 are as follows:
- Subjective Impairment Charge
Operation under the influence of alcohol, drug of abuse or both. For an individual to be considered “under the influence,” the prosecution must prove that an individual consumed some alcohol or a drug of abuse (or a combination of the two), that adversely affected and noticeably impaired the person’s actions, reaction, or mental processes under the circumstances and deprived the person of the clearness of intellect and control which he/she would otherwise have possessed. It is a subjective standard, proved through observations, interpretation of field sobriety tests, circumstances and other evidence.
- “Per se” Charge
Operation with a prohibited level of alcohol in a person’s blood, breath or urine. The prosecution must prove that an individual operated a motor vehicle in Ohio and that at the time of the operation, the individual had a prohibited level of alcohol in their blood, breath or urine. The most commonly used proof is a result from a breath test, with the “legal limit” of .08%.
A person charged with a first-time OVI / DUI faces three days of mandatory incarceration or a three day residential driver intervention program. Further penalties include a drivers’ license suspension of six months to three years, fines of $375 to $1,075, six points levied against the driver’s BMV record, court costs, other fees, and the possibility of restricted license plates and ignition interlock devices.
Ohio law further mandates that individuals with OVI / DUI convictions have criminal records that may never be expunged or sealed. An OVI / DUI conviction removes the individual from the definition of “first-time offender” under Ohio law, and neither the OVI / DUI conviction nor any other criminal conviction may be expunged.
Ohio law provides for increased mandatory penalties depending on other factors including the number of offenses within six years or twenty years, and whether any blood, breath or urine test yielded a result in excess of the “legal limit” or “high tier.”
Other collateral consequences that must be considered may include employment difficulties, motor vehicle insurance cancellations or premium increases, commercial driver’s license (CDL) complications, and BMV reinstatement, treatment and probation fees.
ADMINISTRATIVE LICENSE SUSPENSION (ALS)
Ohio is an “implied consent” state. By statute, driving is considered to be a “privilege,” and anyone arrested for an OVI/DUI offense has impliedly given their consent to take a chemical test. Generally, law enforcement will ask an arrested person to take a chemical test to determine the level of alcohol or drugs in the in person’s system. The three tests approved in Ohio test either blood, breath or urine. The most commonly utilized test is the breath test, often known as a “breathalyzer” or “intoxilyzer.”
An Administrative License Suspension (ALS) is a Bureau of Motor Vehicles (BMV) pretrial suspension imposed for either a person’s refusal to submit to a chemical test or the person’s failing test results. It is not imposed by a Judge, but rather an administrative agency, the BMV. A person refusing a chemical test (with no prior refusals in the preceding six years) faces a mandatory Administrative License Suspension of one year. A person failing a chemical test (with no prior failures in the preceding six years) faces a mandatory ALS suspension of ninety days.
Ohio law provides for increased mandatory penalties depending on the number of refusals or failures in the preceding six years.
LIMITED DRIVING PRIVILEGES
A primary goal of persons charged with OVI / DUI is often to obtain limited driving privileges as soon as possible. Depending on a variety of factors, including the number of prior convictions, privileges to drive may be granted by a Judge or Magistrate as soon as fifteen days after the date of arrest. Privileges may be granted for various purposes including occupational, school, medical and treatment. Limitations as to hours and places may be ordered by the court. Restricted (yellow and red) license plates and an ignition interlock devices may also be required as a condition to obtain privileges.
FIELD SOBRIETY TESTS
If conducted in accordance with standard protocols issued by the National Highway Traffic Safety Administration (NHTSA), Ohio law allows the admission into evidence of three standardized “field sobriety tests.” They are (1) the horizontal gaze nystagamus test (HGN), (2) the walk-and-turn test, and (3) the one-leg stand test.
It is important to note that you are not required under Ohio law to take any of these tests. If asked by law enforcement to submit to these tests you should politely and respectfully decline to do.
The horizontal gaze nystagamus test is often referred to as the “pen test.” Nystagmus is a natural involuntary spasmodic reaction of the eye. Law enforcement observes these involuntary movements of the eyes through the use of a stimulus such as a pen or finger in an effort to determine whether an individual is over the legal limit of .08%. Greater and earlier involuntary eye reactions indicate that the subject is intoxicated.
The officer is evaluating whether any of the following “clues” are present for each eye:
- Lack of smooth “pursuit” of the stimulus;
- Distinct nystagamus at maximum deviation;
- Onset of nystagamus prior to forty-five degrees.
This test is sometimes described as the “walk the line” test. The individual is instructed to take nine heel-to-toe steps forward, and nine steps back. A series of detailed instructions is also given in an effort to divide the individual’s attention between balancing while listening and recalling the instructions.
The officer evaluates the individual’s performance during both the instruction phase and the performance phase, looking for the following:
- Inability to balance, including failures to maintain heel-to-toe positioning;
- Starting the test too soon;
- Stopping or pausing too long while walking;
- Leaving more than one half inch between the heel and toe.
- Stepping off the line;
- Raising arms to balance;
- Losing balance while turning or turning incorrectly;
- Taking an incorrect number of steps.
One-Leg Stand Test
In the one-leg stand test, the individual is instructed to raise one leg six inches off the ground and keep the foot raised parallel to the ground. The individual is instructed to count out loud until told to stop. The test is timed at thirty seconds.
The officer evaluates the individual’s performance, looking for the following:
- Swaying side-to-side or back-and-forth;
- Raising the arms to balance;
- Hopping to maintain balance;
- Putting foot down.
Though these tests have been “standardized,” they nevertheless consist of very subjective components. You should respectfully decline to perform these field sobriety “roadside” tests if requested to do so by law enforcement. Other non-standardized field sobriety tests should also be declined. These include reciting the alphabet, a finger coordination test, backward number counting, and a finger to nose test.