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DUI FAQ

Criminal Defense / DUI/ DUI FAQs

DUI, DWI, OMVI

The acronyms DUI, DWI, OMVI and OVI all refer to the same thing: operating a vehicle under the influence of alcohol or drugs. The most commonly used terms are DUI, an acronym for Driving Under the Influence, and DWI, an acronym for Driving While Impaired. However, Ohio law no longer uses the DUI and DWI acronyms because, in 1982, Ohio enacted a law that refers to driving under the influence of alcohol or drugs as “OMVI,” an acronym for Operating a Motor Vehicle Impaired.

Because a more recent change in Ohio law removed the requirement that a vehicle must be “motorized,” the current acronym that refers to driving under the influence is “OVI” for Operating a Vehicle Impaired. It is now a crime in Ohio to operate almost any vehicle while impaired. This includes not only motorized “vehicles,” but also, bicycles, horse-drawn carriages and several other types of “vehicles.”

LEGAL LIMITS

Q: How much alcohol can I consume before driving without risking an OVI conviction?

A: If you are over 21 years of age and your Blood Alcohol Content (BAC) and breath alcohol content (BrAC) is .08 or greater, you are considered to be “operating a vehicle impaired.” The .08 figure refers to the concentration of alcohol in your breath or in your blood.
The fact that the legal limit for breath and whole blood are the same, is not a coincidence. The breath machine equates the amount of alcohol in your breath to the probable amount of alcohol in your blood. Although state legislatures have generally accepted this principle, many toxicologists and other scientists do not necessarily accept it as scientifically sound.

Q: Is the .08 limit the only one I have to worry about?

A: NO. There are also “legal limits” for the concentration of alcohol in a person’s blood serum or plasma and urine. For a urine sample, you will be over the “legal limit” if the alcohol concentration in your urine sample is .11 or greater. While Ohio still considers this a valid way to determine alcohol content, many states have done away with urine testing because handling and testing procedures have produced errors.

If a blood serum or plasma sample is taken, the legal limit is .096. A test of blood, whether whole blood, serum or plasma, is the most accurate, but such tests must be completed according to Department of Health rules to be admissible in a court proceeding. Also, improper blood testing procedures still may yield inaccurate results.

Q: What happens if I test well over the legal limit for alcohol?

A: Ohio currently has enhanced minimum penalties for so called “high tier” test results (alcohol levels that are considerably higher than the legal limits). The high tier test results are .17 for breath and blood, .204 for blood serum or plasma, and .238 for urine. The enhanced penalties for “high tier” offenders double the minimum jail time requirement.

Q: If I’m under age 21, are the legal limits different?

A: Yes. If you are under 21, the legal limit is much lower: .02 for breath or blood, .03 for blood serum or plasma, and .028 for urine. This means that even the slightest amount of consumption of alcohol can place you over the legal limit.

BATTERY OF TESTS

Q: Can I be convicted of OVI if I refuse to take a test of my breath, blood or urine?

A: Absolutely! The law presumes that, if you operate a vehicle and are found to be at or over the “legal limit,” you are guilty of OVI. However, Ohio law allows you to argue against this presumption of guilt, within limits, in court. If it is proven that the alcohol level in your system is at or over the legal limit, you can be convicted of OVI even if you show no other signs of being under the influence.

If you refuse to allow law enforcement to measure the amount of alcohol in your breath, blood or urine, you still may be convicted of OVI based upon evidence of impairment such as poor driving performance, alcohol odor, slurred speech, red and glassy eyes, and staggering and poor performance on field sobriety tests. Further, Ohio law has made it a criminal offense to refuse to submit to testing once you have been arrested for OVI.

Q: Why do police officers make suspected drunk drivers do roadside balance acts?

A: The balance acts are actually “Standardized Field Sobriety Tests” (SFST) and include:

  1. Horizontal Gaze Nystagmus (HGN)
  2. Walk and Turn (WAT) and
  3. One Leg Stand.

SFSTs were developed in the late 1970s and early 1980s as a way for law enforcement to establish a standardized method to help them determine whether an individual is too impaired to drive. Rather than serving as a test for impairment, the tests actually predict the probability that an individual’s Blood Alcohol Content (BAC) is higher than .08.

Q: What is Horizontal Gaze Nystagmus (HGN)?

A: Horizontal Gaze Nystagmus (HGN) is a jerking of the eye as the eye moves horizontally while following a moving stimulus. There are three parts to this test. The officer holds a stimulus (usually a pen) 12 to 15 inches from the driver’s nose and moves it horizontally across the driver’s field of vision. The officer first checks for nystagmus (jerking) as the drivers eyes shift to the left and right, and then checks for nystagmus while holding the stimulus to the far right and then to the far left of the driver’s field of vision. Finally, the officer looks for the onset of nystagmus before the stimulus reaches a 45-degree angle from the starting point (the driver’s nose). If the officer observes a total of at least four of the six possible clues (three clues in each eye), there is a 77 percent probability that the individual would test at a .08 BAC or higher.

Q: What are the Walk and Turn and the One Leg Stand tests?

A: The Walk and Turn and One Leg Stand Tests are balance and coordination tests that also determine an individual’s ability to follow instructions (accompanied with demonstrations). However, the instructions are long and may be confusing, and the officer may have trouble giving proper instructions. The Walk and Turn has a 68 percent probability of predicting that an individual has a BAC of .08 or higher and the One Leg Stand is accurate about 65 percent of the time.

Q: Are these field sobriety tests admissible in court?

A: Yes. Although many courts consider the Walk and Turn and One Leg Stand to be non-scientific tests, findings from these tests are generally admissible as evidence in court. Further, courts often hold that the Horizontal Gaze Nystagmus test is scientifically reliable if administered in strict compliance with National Highway Traffic Safety Administration (NHTSA) standards. If, however, it can be shown that any of these tests was not administered correctly, the findings may be inadmissible in court.

DUI/TRAFFIC LAW

Q: I’ve heard that I can be charged with DUI even if I am sitting in my driveway listening to the radio with the keys in the ignition, whether or not the car is running.

A: It is true that, under the old Ohio traffic law, you could be arrested for DUI (“Driving Under the Influence”). The current law (effective Jan. 1, 2004) refers to DUI as OVI (“Operating a Vehicle under the Influence”). Under current law, you cannot be arrested for OVI unless you cause or have caused your vehicle to move while you were intoxicated. If you came out of your house and hadn’t driven the vehicle, but were just listening to the radio, you would not be guilty of OVI. Rather, you would be guilty of “physical control,” a charge that has different, much less severe, penalties than an OVI charge.

Q: What can happen to me if I’m convicted of an OVI?

A: It depends on whether this is your first, second, or third offense (or more) within a six-year period. If it is your first offense, you will lose your license for a minimum of 180 days, and you will have to spend at least three days in jail or in a 72-hour Driver Intervention Program (DIP). Some first offenders are required to go to jail in addition to the intervention program. Also, you can be fined up to $1000. There may be other penalties as well. The penalties become much greater for second and third offenses. If you get a fourth OVI within six years, it becomes a felony and your case will be heard in a common pleas court rather than in a municipal court.

Q: If I plead guilty or am found guilty of an “OVI” under current law, can I get occupational driving privileges?

A: Yes. You actually can get more than occupational driving privileges. Under current law the term occupational driving privileges is replaced with limited driving privileges. Limited driving privileges under the new law may be given for employment, educational (to and from school), medical, alcohol treatment, and other court-ordered purposes.

Q: What if I can’t afford auto insurance?

A: If you can’t afford auto insurance, then you can’t drive. Ohio law says that, in order to drive a vehicle in Ohio, you must have liability insurance. If you receive a traffic ticket, you must show proof of insurance to either the police officer or the court. If you don’t show proof of insurance, your license will be suspended by the Bureau of Motor Vehicles (BMV).

Q: What does it mean to have your license suspended, cancelled, forfeited, and revoked?

A: All of these terms were used under the old law. Under current law, only the terms “suspended” and “cancelled” are used. Your license may be suspended, or taken away, for a short time or for the rest of your life, depending upon the nature of the offense and the “class” of the suspension. A license also may be cancelled if you fail to comply with the law (if, for example, you do not pay traffic tickets). Unlike a suspension, your license can be cancelled by the court without warning. The cancellation lasts only until you comply (pay your traffic tickets).

Q: How do I know what type of suspension goes with each kind of traffic offense?

A: Under current law, there are two main types of suspensions: court suspensions and BMV suspensions. Numbers are used to identify court suspensions, and letters are used to identify BMV suspensions. Each number or letter represents a different length of suspension. For example, a BMV “Class F” suspension lasts only until you have met certain conditions (e.g., you can show proof of insurance), whereas a “Class A” suspension (e.g., for refusing, in three separate incidents, to take a chemical test to determine if you were driving while intoxicated) will last three years. A “Class 7” court suspension may last no more than one year, whereas if the court imposes a “Class 1” suspension (such as aggravated vehicular homicide committed while under the influence), you will lose driving privileges for the rest of your life. If you have an issue or question concerning a suspension, it may be wise to contact an attorney.

OVI LAWS

Q: Can I be convicted of OVI if I am not actually driving my car?

A: If you are under the influence and the prosecution can prove that you “operated” your car and were not simply in “physical control” of your car, you can be convicted of OVI (Operating a Vehicle while Intoxicated) even if you are not actually observed driving the car.

“Operation” includes causing or having caused a vehicle (such as a car, truck, RV, bicycle or motorcycle) to move. “Physical control” is defined as being in the driver’s position of the front seat of a vehicle while having possession of the ignition key. If the prosecution can prove that you were causing movement or had caused movement or of the vehicle while you were under the influence of alcohol or over the “legal limit,” you can be convicted of OVI. If movement of the vehicle cannot be proven, you cannot be convicted of OVI. However, if it can be proven that you were in the driver’s seat of a vehicle, in possession of the ignition key and either under the influence of alcohol or test over the legal limit, you can be convicted of being in “physical control” of a vehicle while under the influence of alcohol or drugs.

While a “physical control” conviction is similar to an OVI conviction in that both are first degree misdemeanors, a physical control conviction does not carry minimum penalties. In fact, the court generally gives light penalties for physical control convictions due to the fact that you did not operate your vehicle and place others at risk. Also, whereas prior OVI convictions trigger enhanced minimum penalties for future OVI convictions, prior physical control convictions would not trigger those enhanced penalties for future OVI convictions. For example, if you are convicted of OVI and you have had a prior OVI conviction within the last six years, your minimum jail time will jump from three days to ten days. If you are convicted of OVI and have a prior physical control conviction, the minimum jail time is still only three days. Most importantly, being convicted of “physical control” does not carry the stigma of an OVI conviction.

Q: Is it still legal to drink and drive?

A: It is illegal to consume alcohol while driving. However, current Ohio law says that, if you consume alcohol before driving and you are neither impaired nor at or above the “legal limit,” it is legal to drive in Ohio, even though it may not be advisable.

Some law enforcement agencies have developed “zero tolerance” policies against any amount of alcohol consumption before driving. However, Ohio law does not currently support such policies, and individuals have been successful in lawsuits against law enforcement agencies with “zero tolerance” policies due to unlawful arrests for OVI.

Q: Can I predict my blood alcohol content (BAC) so that I can be sure of not getting picked up for OVI?

A: It is possible to estimate your BAC. However, because so many factors affect your BAC, an exact calculation is impossible. For example, you would have to consider your body weight, the amount of alcohol you consumed, and the length of time you were consuming alcohol.

While BAC calculators (graphs, charts, and the “drink wheel,” which can be found at www.intox.com) can provide a relatively accurate estimate of your BAC, you should not rely on a BAC calculator for legal purposes because there are many factors that the calculators do not take into consideration. These factors include the rate of absorption of alcohol into the bloodstream, the distribution of alcohol throughout the body, the rate of elimination of alcohol from the body, body type (water, fat, and muscle content), the rate of consumption, the alcohol content of the drinks, food consumption, tolerance to alcohol and gender.

Also, you should not rely upon BAC calculators for legal purposes because they do not predict your level of impairment. In addition to the effects of alcohol, your impairment level can be affected by medication and fatigue. It is important to remember that you can still be convicted of OVI due to impairment regardless of your BAC.

OVI/CONSTITUTIONAL RIGHTS

Q: What are my rights once I have been arrested for Operating a Vehicle Impaired (OVI)?

A: Many of the rights afforded to citizens by both the United States and Ohio constitutions do not apply in OVI cases.

For example, police officers do not have to advise you of your right to remain silent until after you are in custody. Statements you may make while you are being detained but before your actual arrest (such as responses to questions about where you were or how much you had to drink) can be used against you in court.

You do not have the right to speak to an attorney before taking a breath, blood or urine test to determine your Blood Alcohol Content (BAC). You have the right to counsel only after you have decided, on your own, whether or not to submit to a test.

The constitutional protection against unreasonable governmental intrusions also does not apply in OVI cases. You can be randomly stopped, detained and searched at a “Sobriety Check Point” even if you have violated no laws. You can be ordered to step out of your car, subjected to interrogation and asked to do Field Sobriety Tests.

Also, you are not always considered “innocent until proven guilty.” If a test reveals a BAC at or above the legal limit, the law presumes that you are guilty in an OVI case.

Q: If I get arrested for OVI, should I submit to a test to measure my BAC?

A: When making such a decision, you should consider a number of factors.

First and foremost, if you have a commercial driver’s license, it is usually best to submit to a test, since your license may be suspended for not doing so. This is true whether or not you are actually driving a commercial vehicle or are ultimately convicted of OVI.

The second most important factor to consider is whether or not you have been convicted of a “drunk driving” offense within the past 20 years. If so, you can be charged with a separate crime if you refuse to be tested, and you can be subjected to a mandatory period of incarceration if you are found guilty of the OVI offense.

Another important factor is whether or not you were “operating” the vehicle (causing it to move). If you were not “operating” the vehicle, taking the test likely will not result in a license suspension even if your BAC is over the legal limit. However, refusing the test will result in an administrative license suspension of one year.

The length of time you can survive without limited driving privileges is another major consideration. Assuming this is your first offense, if you submit to a test and your BAC is at or above the legal limit, you will not be eligible for limited privileges during the first 15 days following your arrest. If you refuse the test, no limited privileges can be granted during the first 30 days after your arrest. Also, some courts do not grant any limited privileges to an individual who refuses a test unless and until that individual pleads guilty to an OVI offense.

Additional factors you might consider when deciding whether or not to submit to a test are your weight, sex, ingestion of food, type and amount of alcohol consumed, duration of alcohol consumption and the amount of time that has passed since your last drink.

Although you should consider the duration of the Administrative License Suspension (90 days for testing at or above the legal limit and one year for a refusal), you also must consider that, if the test result reveals a BAC at or above the legal limit, you will be presumed guilty, and evidence of your BAC will be used against you at trial. Moreover, depending on your BAC level, you could be facing mandatory incarceration, and you may be required to have special OVI plates on any vehicle you drive while your license is suspended.

Q: Can an officer force me to submit to a BAC test?

A: No, but the court can. In some jurisdictions, the arresting officer will ask a judge to issue a warrant to draw blood. If the judge signs the warrant, your blood can then be legally drawn, against your will, and submitted for testing. Such a practice is becoming more common in Ohio, although in most jurisdictions, warrants are used only when someone is injured or killed in an alcohol-related accident.

OVI CHECKPOINTS

Q: What is a sobriety checkpoint?

A: A sobriety checkpoint, also called a D.U.I. roadblock, is a roadblock set up by law enforcement officers in order to stop every vehicle or a subset of vehicles (every third, every tenth, etc.) passing through the checkpoint for the purpose of questioning drivers about driving under the influence of alcohol or drugs. Multiple law enforcement agencies frequently work together at sobriety checkpoints.

Q: Where and when are sobriety checkpoints established?

A: Sobriety checkpoints are established at strategic locations at significant times, such as on holiday weekends or during special events. The location and time of sobriety checkpoints must be publicized in advance.

Q: Are sobriety checkpoints constitutional?

A: Yes. The U.S. Supreme Court upheld the validity of sobriety checkpoints in Michigan v. Sitz, even though the law generally forbids law enforcement officers from stopping drivers unless there is a suspicion that the drivers have violated the law. In the Michigan v. Sitz case, the Court found that the intrusion and inconvenience of to individuals who are stopped is outweighed by the government’s interest in curbing drunk driving.

Q: What procedures must law enforcement officers follow to make sure sobriety checkpoints are legal?

A: In the same year the Sitz case was decided, the National Highway Traffic Safety Administration (NHTSA) published recommended procedures for D.U.I. roadblocks. For a D.U.I. checkpoint to be legal, law enforcement must follow guidelines regarding such issues as the location, operation and publicity of the checkpoint, and the extent to which a checkpoint officer has discretion to act.

Q: What happens if an officer at a sobriety checkpoint suspects a driver is under the influence of alcohol or drugs?

A: The officer detains the driver and conducts field sobriety testing and breath testing. In order to detain and test a driver, the officer must have a reasonable suspicion that the driver is under the influence. If, after field testing, the officer has probable cause to believe the driver is under the influence, the officer may arrest the driver and charge the driver with Operating a Vehicle under the Influence (O.V.I.).

Q: What if a driver tries to avoid a sobriety checkpoint?

A: So long as the driver does not violate any laws, such as making a prohibited U-turn, purposely avoiding a sobriety checkpoint is not illegal and does not constitute justification for stopping the driver.

Q: What are the goals of sobriety checkpoints?

A: The goals behind sobriety checkpoints are to deter drunk driving, detect drunk driving, and get drunk drivers off the road.

Q: Has checkpoint effectiveness been measured?

A: It is impossible to measure the deterrence value. However, there have been measurements of the number of people charged with drunk driving as a result of sobriety checkpoints. According to these measurements, a small percentage of all drivers stopped at sobriety checkpoints are charged with D.U.I. (1.6 percent in the Sitz case).

OVI/SIGNS OF IMPAIRMENT

Q: What are police trained to look for when enforcing OVI (drunk driving) laws?

A: An officer on OVI enforcement is trained to look for various signs of drunk driving, including:

  1. signs of impairment exhibited by a person while driving a vehicle (called the “vehicle in motion” phase of enforcement)
  2. signs of impairment upon the initial “personal contact” with the driver
  3. signs of impairment noticeable during the “pre-arrest screening” phase, which encompasses standardized field sobriety testing and preliminary breath testing

Q: What are “ signs of impairment?”

A: During the “vehicle in motion” phase, the officer looks for signs of impairment such as reckless driving, weaving, going left of center, driving too slowly, braking erratically, or stopping for no apparent reason, although almost any traffic violation may alert an officer to look for signs of impairment. In addition, an automobile accident that occurs during the late night or early morning hours will raise suspicion of impairment.

Q: If I am stopped for a suspected drunk driving offense, what will an officer be looking for?

A: Once you are pulled over, the officer will look for signs of impairment based on his or her observation, including sight, hearing and smell. The officer may look for bloodshot eyes, soiled clothing, fumbling fingers, alcohol containers in your car, or any other unusual actions. Slurred speech, admission to drinking, inability to answer a question while performing a physical task, inconsistent responses and unusual statements also will alert an officer. The odor of alcoholic beverages, cover-up odors, or any other unusual odors may raise the officer’s suspicion.

Q: Am I under arrest if the officer asks me to exit my car?

A: No. The officer will be watching for a driver’s difficulty in opening the car door, using the door for balance, leaning against the vehicle and swaying or staggering.

Once you are out of the car, the officer may ask you to take field sobriety tests. If you opt to take the tests, your performance on the tests can be used in the officer’s determination to arrest you.

The officer may offer you a preliminary breath test (PBT). A PBT is a breath test performed with an instrument that approximates your blood alcohol content (BAC). While you are not required to submit to this test and a PBT result generally is not admissible at trial, your refusal to submit to a PBT may be used as evidence of your guilt.

OVI/DRIVING PRIVILEGES

Q: I was arrested for drunk driving for the first time last night, and the officer took my license. When can I get my license back?

A: It depends. If you submitted to a test to determine your Blood Alcohol Content (BAC) and your BAC was under the legal limit, the officer should not have taken your license, and it should be returned to you immediately. If the officer did not ask you to take a BAC test (if, for example, the test could not be administered), the law requires the officer to turn your license over to the court for disposition at your initial appearance. Your license may be returned to you at the initial appearance or, in some cases, the court may impose a suspension of your driving privileges under a “public safety” suspension.

If your BAC was at or above the legal limit, you have been placed under an Administrative License Suspension (ALS) for 90 days. The duration of the suspension will be lengthened if you are convicted of OVI (drunk driving). If you refused to submit to a BAC test, the ALS will be extended to one year, but if you are convicted of OVI, the length of this “refusal” suspension may be shortened. If you are convicted of OVI, the court must suspend your license for a minimum of six months and may suspend it for a maximum of three years.

Q: When can I drive again?

A: If you did not refuse to submit to a BAC test, and your BAC was not at or above the legal limit, you most likely were not placed under an ALS and you should be able to drive immediately. If, however, you submitted to a test and your BAC was at or above the legal limit, you will not be eligible for even limited driving privileges for 15 days from the date of arrest.

If you refused to submit to a BAC test, you are not eligible for driving privileges for 30 days from the date of arrest. The time during which the court cannot grant driving privileges is commonly referred to as a “hard” suspension. In many courts, the judge will not grant privileges at any time before the case ends if you refused to submit to a BAC test.

If granted, the limited privileges are valid for the remainder of the suspension.

Q: What kind of privileges can I get after my ”hard” suspension is over?

A: Under Ohio law, the judge has broad discretion in determining whether or not to grant privileges, but the scope of the privileges is usually limited to occupational, educational, vocational and medical purposes, or for taking a driver’s license examination and attending court-ordered treatment.

Q: Can I get privileges that go beyond work and work-related trips?

A: It is possible, depending upon the judge’s interpretation of the law. A liberal reading of the law permits the court to grant limited privileges for a variety of reasons, while a strict reading does not.

Q: I need to drive to and during work tomorrow. Can I get the court to take away the “hard” suspension?

A: A judge cannot grant privileges before the end of the “hard” suspension, but an ALS can be “stayed” (put on hold) by the court until the final disposition of the case. This would allow you to drive while the suspension is on hold. If you are subsequently convicted of OVI, the judge must impose the full suspension including the “hard suspension,” and must give you credit for all of the days you have already spent under suspension, including credit for the “hard” suspension.

Q: I refused to take the chemical test when I was stopped, but I was obviously drunk. Now I wish I’d taken the test, since I know the penalty will be less severe. Can I somehow undo my refusal and the one-year suspension that goes with it?

A: Possibly. If you plead “guilty” or “no contest” to the OVI charge, then your refusal to submit to the chemical test is set aside (“vacated”). The judge, by law, must impose a court suspension for a period between six months and three years on a first OVI conviction. In most cases, the judge will impose the lesser six-month suspension and will grant credit for any time already served under the initial ALS suspension. This may shorten the suspension, but you will have an OVI conviction on your record. The length of the suspension should not be the sole factor in deciding whether or not to plead guilty. In most cases, having an OVI conviction on your record is much worse than having your license suspended.

ALS SUSPENSION

An Administrative License Suspension (ALS) is a driver’s license suspension that can be imposed, before any court involvement, upon individuals charged with Operating a Vehicle Impaired (OVI).

Upon arrest for OVI, if you submit to a chemical test and the results are at or above the legal limit, your license will be suspended, immediately, for 90 days. No driving privileges can be granted for the first 15 days. If you refuse to submit to a chemical test, your license will be suspended, immediately, for one year, and you will not be eligible for limited driving privileges for the first 30 days.

The duration of the suspension and time without limited driving privileges are extended for those who have committed more than one OVI offense.

Q: Can I drive during the suspension?

A: You may be granted limited driving privileges after the appropriate waiting period, or “hard suspension.” Once you become eligible, a court may grant you driving privileges for the remainder of your suspension for employment, medical, educational and vocational purposes. In addition, the court may grant you privileges to attend court ordered treatment and to take a driver’s examination.

Q: Can I challenge an ALS?

A: Yes. You must file an appeal within 30 days of the initial appearance, which must be held within five days of your arrest. A hearing on your appeal may take place at the initial appearance or at any time thereafter.

If appropriate legal procedures are followed by the arresting officer, the ALS is deemed valid and you have the burden of proving that the ALS was wrongfully imposed.

If it finds that the ALS was illegally imposed or if certain legal procedures are not followed, the court can declare the ALS void and terminate it.

Q: How do I get my license back when the ALS suspension period is over?

A: Your license will have been destroyed, but you can get a new license once you pay a reinstatement fee of $425.00 and show proof that you have car insurance. Generally, the ALS is eliminated as part of your OVI case. It is wise to seek the advice of counsel before you pay the reinstatement fee.

Q: If I am found not guilty of the OVI offense, does the ALS end?

A: If you submitted to a chemical test, the ALS will be terminated if you are found not guilty of the OVI. Most judges will terminate the ALS if the prosecution asks the judge to dismiss the OVI charge, but some judges will not terminate the ALS without a “not guilty” finding by a judge on a jury after trial.

If you refused to submit to a chemical test, the ALS will remain in effect even if your OVI charge is dismissed or you receive a “not guilty” verdict. If you refused to submit to a chemical test, the only way your ALS can be terminated is if the court declares the ALS void or you win your appeal.

RISKS OF DRINKING AND DRIVING

Q: My husband and I just shared a bottle of wine at dinner. Should we drive home or call a cab?

A: Do not drive if you believe your ability to drive is impaired, no matter how little alcohol you may have consumed. Also, remember that, while your blood alcohol concentration (BAC) may well be under the legal limit after having shared a bottle of wine at dinner, driving after drinking any amount of alcohol is risky. Many factors affect the BAC, and, in the absence of accurate chemical testing, your best guess may prove incorrect.

Q: If we have carefully assessed the situation and decide it’s safe to drive home, does it make any difference whether I drive or my husband drives?

A: If you have assessed the situation correctly and both of you are confident your BAC is under the legal limit, it will not matter who drives. However, you should be aware that the BAC of a female generally will be higher than that of a male if all other factors (weight, amount of alcohol consumed, duration of consumption of alcohol, similar food consumption, etc.) are equal. This is because of a number of differences between the female body and the male body. For example, a woman’s body generally contains less water and more fat than a man’s body. Both of these factors generally allow more alcohol to be absorbed into a woman’s bloodstream than is absorbed into a man’s bloodstream. Further, women typically have 30 percent less of the enzyme that breaks down alcohol.

Q: What if all other factors are not equal?

A: Still assuming both you and your husband believe your ability to drive is not impaired and that you can safely drive home, the most important factor to take into consideration when deciding who should drive is your difference in weight. The person who weighs less generally will have a higher concentration of alcohol in his or her blood. However, unless you weigh substantially more than your husband, your husband is likely to have a lower BAC. Remember that, if you aren’t sure about your status, you should not drive.

Q: Doesn’t the law provide different legal limits of BAC for men and women?

A: No, the law does not differentiate between men and women regarding the legal limits of BAC while operating an automobile. While there have been claims that the law discriminates against women and attempts have been made to change the law to reflect the results of scientific studies, these efforts have failed. Despite the differences in the way the male and female bodies process alcohol, the science behind breath testing uses the “law of averages” and treats all men and women alike.

WHAT TO DO IF STOPPED

Q: If I am stopped by the police after I’ve had a few drinks, what should I do?

A: First, pull to the right side of the roadway as soon as you can do so safely. Keep your hands on the steering wheel. Do not begin to search for paperwork until the officer asks you to. After providing your identifying information, you have a right to politely inform the officer that you will not answer any further questions without first speaking to an attorney.

Q: If I’ve said I won’t answer further questions without an attorney, and the officer tells me to get out of the car, do I have to comply?

A: Yes. You must get out of the car if ordered to do so. If you do not, you could be charged with a crime.

Q: What should I do if the officer wants to give me a sobriety test?

A: Once you are out of your car, you have the right to politely refuse all roadside sobriety tests. You are not required to perform roadside sobriety tests and it is not a crime to refuse to perform the roadside sobriety tests.

Q: What happens if the officer arrests me?

A: If you are arrested, you will be asked to submit to one or more chemical tests (breath, blood and/or urine) to measure your BAC. You can choose whether or not to submit to a chemical test, but you should be aware that, under certain circumstances, refusing the test itself may be a crime. Also, if you refuse to submit to a chemical test, you face the possibility of a longer administrative license suspension (ALS). Further, if you have been convicted of another drunk driving offense within the last 20 years, the mandatory minimum jail sentence may be doubled.

On the other hand, if you submit to a chemical test and test results show you were over the legal limit, you are more likely to be convicted of an OVI than if you refuse to take the test. In most cases, the test results will be used as evidence of your guilt. Also, if you take the test and you have a BAC of more than .17, the mandatory minimum jail sentence will be doubled.

Q: Let’s say I have one prior OVI conviction and refuse to submit to testing. My friend, who also has one prior OVI conviction, submits to a test and has a BAC of at least a .08 but less than .17. Is there a difference in the minimum amount of time each of us might spend in jail?

A: According to Ohio law, if you have been convicted of an OVI offense within the past 20 years, and you refuse to submit to a chemical test, you risk doubling the minimum amount of time you might spend in jail. That “minimum time” you may face depends on how many OVI convictions you have had within the past six years.

If this had been only your first conviction within the past six years, the minimum sentence would have been three days in jail or a 72-hour Driver Intervention Program. Since this is your second conviction within six years, you would normally face a minimum jail sentence of 10 days. However, because you refused testing, you face the possibility of double that time (a minimum of 20 days in jail), whereas your friend, who submitted to testing, would face a minimum of only 10 days.

If this had been your third conviction in six years, you would have faced a minimum jail sentence of 60 days (double the 30 days’ minimum because you refused testing).

Q: I’ve heard that some cities in Ohio are tougher on OVI offenses than others. Is that true?

A: Yes, it is true that the codes of some Ohio municipalities are stricter than the State Code. When that is the case, the municipality’s code takes precedence over the state’s code. For example, the Columbus City Code has what is called a “lifetime lookback” period. This means that, in Columbus, any prior OVI, no matter how many years ago it was, will be considered when deciding penalties.

BOATING WHILE INTOXICATED

Q: Do I need a license to operate a boat?

A: If you are operating a boat for commercial purposes, you would need a license. “Commercial purposes” include transporting persons or cargo for hire, commercial towing operations, etc., and there are extensive laws and regulations to govern those activities, including operator licensing requirements.

If you’re operating a recreational watercraft on Ohio waters, there is no license requirement, nor even a license option, although there are certain educational requirements for persons born on or after January 1, 1982. If you fall under this category, you may not operate a vessel powered with a motor greater than 10 horsepower unless you have successfully completed an approved safe boating course or a proficiency examination. If this law applies to you, you must present your certificate of course or exam completion to a law enforcement officer on demand (or submit proof within 72 hours of the stop that indicates you were in compliance when stopped).

Q: What are some basic differences between the laws that apply to those who operate a boat while intoxicated, and the OVI laws that apply to those who operate other vehicles while intoxicated?

A: Because of safety issues that are unique to operating a boat, federal (e.g., Coast Guard) and state watercraft officers may randomly stop your boat without a warrant and perform a safety inspection, even without any suspicion that you’ve violated any law. During the safety inspection, officers may expand the inspection to include a sobriety check, if they have a reasonable suspicion that the vessel operator is intoxicated. However, this authority only extends to Coast Guard and state watercraft officers, and not to county or city marine patrol officers.

Also, there is no automatic license suspension component in the laws that cover boating while intoxicated (BWI). This means that, even if you are found guilty of BWI, you cannot lose a boating license, since none is required for non-commercial uses in Ohio waters. Further, you also will not automatically lose your automobile driving privileges. However, if you refuse to submit to a chemical test to determine if you’re intoxicated, the Ohio Department of Natural Resources may prohibit you from operating or registering a watercraft for 12 months.

If you are successfully prosecuted by the state (after arrest by local marine police patrol, state watercraft officers, etc.), the BWI penalties are very similar to other “driving while intoxicated” penalties. You will be fined and receive a jail term, with the same court options to attend a certified driver intervention program as a substitute for the minimum three-day jail term. However, if the Coast Guard issues you a notice of violation, your case may be heard in a civil penalty proceeding, without the protections normally afforded to criminal defendants. The maximum penalty you may receive in a federal civil proceeding for BWI is $5,000. Also, the Coast Guard may transfer you to the custody of state watercraft officers for state prosecution.

Q: Can’t I just take my boat offshore on Lake Erie where there are no other boats, drop my anchor and a fishing line, and have a few beers without bothering anyone?

A: Sorry, the “this is a free country” argument doesn’t hold water. Boating accident statistics show that alcohol and/or drug use are significant contributing factors to accidents, including drowning, collisions between boats and with fixed objects. Furthermore, it can take rescuers a long time to locate and assist boaters in trouble. While there are many safety equipment requirements for the operation of recreational vessels, including life jackets, fire extinguishers, and signaling equipment, this equipment may not help you if you’re too impaired to use it.

The BWI law would apply to you if you were the operator of the vessel, that is, the person who is navigating the vessel while it is not secured to the shore or a dock, or at anchor in a designated anchorage area. Merely dropping your anchor outside a navigation channel or offshore on Lake Erie does not place you in a “designated anchorage area.” You must look at the chart and navigation aids to determine the location of a designated anchorage area. Even though you may be anchored for an afternoon of fishing, you still may be considered to be operating the vessel for purposes of the law.

The law does not prohibit the consumption of beer while operating a boat; rather, it prohibits the operation of a vessel while under the influence of alcohol, a drug of abuse, or a combination of them. The standards used to determine whether you’re under the influence parallel those used to determine whether you’re under the influence for driving a motor vehicle on land.

Informational Blog Posts from Scott A. Kelly’s DUI Blog 

You are being Pulled Over – You are Now a Suspect

You have been drinking and now you are being pulled over. Unfortunately many people do not take seriously that they are likely now the suspect of a crime – OVI.

Through years of experience watching videos of stops, and from his training regarding OVI (DUI) detection, which is the exact same training law enforcement receives, attorney Scott Kelly can normally predict how an eventual OVI charge is going to play out. Unfortunately most people arrested for OVI in Sidney, Troy, Greenville, Lima, and the surrounding areas do not realize that they are going to be arrested for an OVI until it is too late. Even more unfortunate is the fact that by the time the person is arrested, they have likely already given the officer everything he needs to convict them for OVI.

If you take away one thing from this post, it should be this – The officer who has stopped you and is questioning you is likely not going to tell you that he is considering arresting you for an OVI.
OVI arrests are based upon the officer’s belief that the totality of all of the facts indicate that the person is driving impaired. Officer’s are trained to look for “cues” of alcohol/drug impairment. These cues include everything from how a person is driving, to what the officer observes during the stop. Often the most important cues are the evidence of alcohol consumption, the admission of consumption, and the person’s performance on the standardized field sobriety tests.

The officer is not going to tell you that he is considering arresting you for OVI, or that the reason he is gathering all of these cues is to justify his arrest decision. He knows that if he tells you that you are likely to hesitate and not give him what he needs to arrest you or justify his arrest later in court. Fortunately for the officer, most people fall into this trap and give the officer everything they need for the stop.

The most important think to keep in mind when you are pulled over is that you are now a suspect. Good legal advise is important, and the sooner the better. Tell the officer that you want to call an attorney and do so immediately, not after you have been arrested or given the officer the cues he wants. Attorney Scott Kelly can be called at any time for OVI cases in the West Central Ohio (Sidney, Troy, Greenville, Lima, Bellefontaine, etc.) area on his 24 hour criminal emergency line – (937) 657-4662.

The Biggest OVI Misconception 

Alcohol related OVIs generally fall into two categories. The first are OVIs in which the defendant submitted a sample (breath, blood, or urine) which through a chemical test tests positive for alcohol. The second are OVIs in which the defendant refused to submit to a chemical test.

Most people in Ohio are aware that for adults the permissible  blood or breath alcohol concentration (or BAC) when operating a motor vehicle is .08. Unfortunately, most people do not understand what this means.

Over the years, Scott Kelly has had numerous clients tell him that they did not believe they were committing a crime when they were charged because they were not engaging in “drunk” driving. They only went out to dinner or to the bar after work and had three beers over the course of a few hours. Because they did not believe they were “drunk” driving, they submitted to a test that gave a reported BAC higher than .08.

The biggest misconception for the average citizen when it comes to Ohio’s OVI law is that it is only against the law to drive while “drunk” and that a BAC level of .08 corresponds with drunk driving. This is simply not the case. Ohio’s OVI law prohibits “impaired” driving, whether the impairment be caused by alcohol, illegal drug, or even prescription medication. This is a lower burden than “drunk” driving. Further, many people who may honestly believe they are not impaired by alcohol when they drive would test over the legal limit of .08 if given a breath test.

Hopefully you have  two “take aways” from this post. The first is that you do not have to be “drunk” to be cited with an OVI. The second is that if you submit to a chemical test to determine BAC and you have consumed any alcohol at all, you run the risk of having a failed test.

If you are in the unfortunate situation of having an OVI charge, Attorney Scott Kelly can be called at any time for OVI cases in the West Central Ohio (Sidney, Troy, Greenville, Lima, Bellefontaine, etc.) area on his 24 hour criminal emergency line – (937) 657-4662.