Frequently Asked Questions

Why is it called OVI and not DUI?

 

Generally, "OVI" and "DUI" can be used interchangeably, but OVI is the term used in Ohio courts. Ohio no longer has "DUIs" but instead has adopted a broader law titled "Operative a Vehicle under the Influence of alcohol or drugs" (OVI). OVI is more expansive, because you can be charged with an OVI without actually driving. If you are in the driver’s seat and your keys are within reach, you can be charged with OVI. This is known as “physical control.”

 

 

How much alcohol will put me over the legal limit to drive?

 

This is a difficult question to answer, as it depends on a variety of factors. The legal limit in Ohio is a blood alcohol content of .08. Whether or not you exceed that limit depends on what you drink, how quickly you drink it, and how much you weigh, among other things. If you are having more than 1 drink, it is possible you could be over the legal limit. Additionally, because of the way the Ohio OVI law is written, you can still be convicted of OVI even if you blow under the legal limit. This can make driving after any drinking a risky proposition. 

 

 

What should I do if pulled over for a suspected OVI?

 

First and foremost, be respectful toward law enforcement officers. If you are respectful to the officer, a prosecutor will be more likely to work with you to get charges reduced or to lighten a sentence. You have the right to remain silent, meaning you can respectfully tell the officer you are not comfortable answering any questions. Breath tests administered at the scene are highly unreliable and you are not required to submit to them. Additionally, you are not required to submit to any field sobriety tests.  Once back at the station you will likely be asked to submit to another breath test.  There are consequences to not submitting to the breath test at the station, but submitting to the test could be detrimental to your case.  

 

Should I submit to a breath test? What happens if I refuse?

 

Breath tests given at the scene are notoriously unreliable and cannot be used against you. Refusal to submit to such a breath test will not negatively impact you. However, refusal to submit to a breath test at the station can have serious consequences. You should consider a number of things before making that decision: 

  • Have you been convicted of OVI before? If you have been convicted of a prior OVI, you can be charged with a separate crime for refusal to submit to a breath test and be subjected to a mandatory period of incarceration if found guilty of OVI.
  • How long can you go without driving privileges? If you refuse to submit to a breathalyzer, you will automatically lose your license for a year. You also will not be eligible for driving privileges (work, school, medical, etc.) for 30 days. Some judges do not allow any driving privileges to defendants who refused to take the breath test. If you submit to a breath test and blow under the legal limit, you will not lose your license unless you are later convicted of OVI. If you submit to a breath test and blow over the legal limit, you are eligible for privileges after 15 days. 
  • Am I likely to blow over? Am I likely to blow a high OVI? It may be hard to know the answer to these questions. However, if you have never been convicted of an OVI and can afford to go without driving privileges for a longer period of time, refusing to submit to any breath test may be worth it. Any BAC over .08 is a substantial piece of evidence that can be used against you. Not having that evidence makes the prosecutor's case weaker. It is possible to get breath tests thrown out if the machine was not calibrated correctly, records were not maintained correctly, or the officer didn’t follow proper procedure. But if the test does not get thrown out, that is damaging to your case. Additionally, if you blow above .17 (a high OVI), you may face stiffer penalties. 

 

I had no problem with the field sobriety tests but the officer says I failed it. Why?

 

When conducting a field sobriety test, an officer is looking for a number of different indicators to determine whether or not you are intoxicated. It is possible for a person submitting to the field sobriety test to feel like they did fine, and yet the officer picked up on those indicators. The three tests most commonly used are the Walk-and-Turn; One-Legged Stand; and Horizontal Gaze Nystagmus. 

 

Walk-and-Turn: In this test the police officer asks you to walk in a straight line for 9 steps, turn and walk back. The key to the test is paying attention and following the very specific instructions the police officer gives you.  With this test, the officer is looking for 8 different indicators to determine if you are intoxicated. According to the National Highway Traffic Safety Administration (NHTSA), if an officer observes two or more of the eight indicators, there is a 68% chance the subject has a BAC of 0.10 or higher. Those indicators are:
  1. Suspect cannot keep balance while listening to the instructions: This means you don’t maintain heel-to-toe position throughout instructions

  2. Suspect starts before instructions are finished

  3. Suspect stops while walking: You must stop for several seconds for this to be triggered.   

  4. Suspect does not touch heel-to-toe: There must be more than a ½-inch gap between heel and toe.

  5. Suspect steps off the line: At least one foot must be entirely off the line.

  6. Suspect uses arms to balance: Arm(s) must be raised more than 6 inches from sides.

  7. Suspect makes improper turn: This means you remove front foot from line while making turn and/or you spin or pivot around instead of following instructions.

  8. Suspect uses incorrect number of steps

 

One-Legged Stand: In this test the police officer asks you to stand on one leg with your hands at your side. The officer is looking for 4 different indicators to determine if you are intoxicated. According to the NHTSA, if an officer observes two or more of the four indicators, there is a 65% chance the subject has a BAC of .10 or higher. These indicators are:
  1. Suspect sways while balancing

  2. Suspect uses arms to balance: Arm(s) must be raised more than 6 inches from sides.

  3. Suspect hopping (to maintain balance)

  4. Suspect puts foot down: Puts foot down one or more times during 30 second count.

 

Horizontal Gaze Nystagmus: This test involves following a flashlight with your eyes. The officer is looking for an involuntary twitch in your eyeball (nystagmus) as you follow the light. According to the NHTSA, if a subject fails a properly administered test, there is a 77% chance he or she has a BAC of .10 or higher. 
 
 

Can these field sobriety tests be challenged in court? 

 

A good attorney can challenge these tests in court. For these tests to be effective, they must be administered in a certain way. If the officer fails to administer a test properly, its reliability can be brought into question. In these cases, an attorney can get the tests thrown out and they will not be admissible in court. Even if the tests are admissible, it is possible to challenge the officer on whether or not the indicators were triggered. In short, just because an officer says you failed the field sobriety tests does not mean that is the case. 

 

 

What penalties do I face for a first OVI conviction?

 

The minimum penalty is 3 days in jail for your first OVI conviction. You will likely be able to enter a 72-hour drug and alcohol treatment program in lieu of the 3 days in jail. The program must be court-approved, and you must pay any costs for the program. First-time OVI offenses also carry fines of $375 to $1075.00. You will have to pay a driver’s license reinstatement fee of $475.00 to get your license back. If you are convicted of an OVI with a BAC above .17 (high OVI), the judge may sentence you to 6 days in jail (or 3 days in addition to the 72-hour drug and alcohol treatment program).

 

 

Is it possible to plead to a lower charge?

 

An attorney can always try to work with the prosecutor to help you plead to a lower charge.  Whether a charge can be reduced depends on a number of factors, including:

  • Whether or not you have any prior OVI chargers or convictions

  • Whether or not you were in an accident or driving under suspension when charged with the OVI

  • The attitude of the prosecutor towards OVI offenses

  • The attitude of the judge toward OVI offenses

  • How respectful you were to the police officer(s), and whether the officer(s) will accept a reduced charge 

  • The strength of the prosecution’s case

  • If you took a breath test, how low or high your BAC was 

 

 

I was pulled over for no reason. Will that help me with my OVI defense?

 

Police cannot stop drivers without a reasonable suspicion that they have committed a crime. Reasonable suspicion essentially means "more than just a hunch." In practice, this usually means the officer has to have seen you commit a traffic infraction in order to make a stop. This could be speeding, driving without a front license plate, crossing the center line, having expired plates, or any other offense. Typically, an officer will tell you why he pulled you over. If he does not — or his reason is not true — that could be grounds for suppressing all evidence collected from the stop and ultimately dismissing the case.

 

 

 

© 2015 by Mark Raines, Attorney at Law,  LLC. 

 

Information contained on this website is not legal advice or legal opinion and should not be relied upon as such. Furthermore, nothing contained in website is intended to create or establish, and does not constitute, an attorney-client relationship.

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Mark Raines, Attorney at Law

246 High Street

Hamilton, OH 45011

mark@attorneyraines.com

Phone: 513-839-2003