DUI / OVI - DRUNK AND DRUGGED DRIVING
Perhaps one of the most complex areas of criminal and traffic law is driving under the influence of alcohol and/or drugs. In Ohio, that crime is named OPERATING A VEHICLE UNDER THE INFLUENCE OF ALCOHOL OR DRUGS (OVI). Other states use abbreviations that differ from Ohio’s OVI, including DUI (driving under the influence) and DWI (driving while impaired). These laws prohibit drunk driving or drugged driving.
A DUI will greatly affect one’s ability to drive and earn a livelihood. It’s important to know the basics about DUI, as well as the mandatory and maximum penalties. A DUI / OVI may result in:
- Jail time
- Fines to the court
- Driver's license suspension
- Fees to the Ohio Bureau of Motor Vehicles
- Probation and court-ordered supervision
- Loss of employment
- Increase of insurance premiums
MANDATORY OVI PENALTIES
1st offense within 10 years:
DEGREE: M1- misdemeanor of the first degree
JAIL: 3-6 days jail, up to 6 months
- LICENSE SUSPENSION: 1-3 years
- FINE: $375.00, up to $1,075.00
2nd offense within 10 years:
DEGREE: M1 - misdemeanor of the first degree
JAIL: 10-20 days, up to 6 months
- LICENSE SUSPENSION: 1-7 years
- FINE: $525.00, up to $1,625.00
3rd offense within 10 years:
- DEGREE: Unclassified Misdemeanor
- JAIL: 30-60 days, up to 1 year
- LICENSE SUSPENSION: 2-12 years
- FINE: $850.00, up to $2,750.00
4th or 5th offense within 10 years / 6th offense within 20 years:
DEGREE: F4 - felony of the fourth degree
- PRISON OR JAIL: 60-120 days, up to 30 months
- LICENSE SUSPENSION: 3 years to lifetime
- FINE: $1,350.00, up to $10,500.00
2 TYPES OF DUI / OVI
Generally, there are two types of DUI / OVI in Ohio. The two types of DUI / OVI are separate and distinct charges. The driver can be charged with both. The two type of DUI / OVI in Ohio are:
- Operating a vehicle while under the influence (OVI IMPAIRED); and
- Operating a vehicle with a prohibited concentration (OVI PER SE).
TYPE 1: OVI IMPAIRED
In the first type of OVI, it’s illegal to operate a vehicle if alcohol and/or drugs adversely affected and noticeably impaired the driver’s actions, reaction, or mental processes. The drugs and/or alcohol must deprive the driver of clearness of intellect and the ability to control themselves. “Impairment” is the keyword for this type of OVI.
This is determined by the arresting officer’s observations of the driver’s impairment: slurred speech, odors of alcohol or drugs, admissions to consuming alcohol or drugs, bloodshot eyes, pupil size, fumbling with wallet, stumbling, and poor performance on standardized field sobriety tests.
Standardized field sobriety tests (SFST’s) are a battery of tests that officer uses to assess whether a driver is under the influence, i.e., impaired, by alcohol or drugs. The three tests include an eye test (the horizontal gaze nystagmus (HGN) test), walking a straight line (the walk and turn test), and balancing on one leg (the one leg stand test). The tests themselves are not as simple as they may seem. These tests are called standardized field sobriety test because officers are supposed to administer them in a uniform and consistent manner. Deviations from the required instruction for administering SFST’s can unfairly prejudice the driver and result in arrest and prosecution.
For OVI IMPAIRED, it doesn’t matter whether the driver is "over the limit,” such as by blowing into a breathalyzer or giving a blood sample. Yes: a person can be charged with OVI without taking a blood, breath, or urine test to show the presence of alcohol and/or drugs in the driver's system.
TYPE 2: OVI PER SE
In the second type, it's illegal to operate a vehicle if the driver has a prohibited concentration of alcohol and/or drugs of abuse in their system. In other words, the driver is over the limit, and "per se" intoxicated.
The SFST’s that are the basis of the first type of OVI (OVI impaired) are irrelevant. All that matters in an OVI per se prosecution is that the driver drove a vehicle while being over the limit for alcohol or drugs.
The concentration of alcohol or drugs in the driver’s body requires the driver to submit to a chemical sobriety test, which is administered. A driver can submit a breath test in a breathalyzer machine, or provide a blood and urine sample, which are then analyzed by the state’s crime lab personnel. A breath test only measures alcohol concentration, not drugs.
What does it mean to be over the limit in the state of Ohio for alcohol? The magic number is 0.08. However, the per se limits differ depending on the hype of test the driver performs:
- Alcohol - breath test: 0.08g/210mL of deep lung breath
- Alcohol - urine test: 0.11g
- Alcohol - blood test: 0.08g%
- Alcohol - blood serum test: 0.096%
What does it mean to be over the limit in the state of Ohio for drugs? The magic number depends on the drug. Moreover, some drugs like prescription drugs don't have per se thresholds.
- Cocaine and cocaine metabolite
- Heroin and heroin metabolite
- Lysergic acid diethylamide (LSD)
- Marijuana and marijuana metabolite
- Phencyclidine (PCP)
- Salvos divinorum
The time that a driver submits to a test matters too. The arresting officer must administer a post-arrest chemical sobriety test within three hours of the underlying violation. For example, if an officer pulls a driver over for speed, and later determines that the driver is under the influence of alcohol or drugs, then the officer must administer the chemical sobriety test within three hours of the time that the officer pulled the driver over for speeding.
LOSS OF DRIVER'S LICENSE
Generally, when one is arrested for OVI, the driver loses their driver's license; that is, the officer suspends it. This suspension is called an administrative license suspension (ALS). It's administrative because an administrative agency, the Bureau of Motor Vehicles (BMV), revokes the driver's license.
When a driver receives a driver's license, the driver enters into a contract with the BMV: in exchange for receiving the privilege to drive in the state of Ohio, the driver must submit to a post-arrest chemical sobriety test if lawfully requested by a law enforcement officer. This contract is known as Ohio’s Implied Consent Law.
If a driver takes a chemical sobriety test (blood, breath, or urine test after being arrested for OVI IMPAIRED) and tests at or above the legal limit, then the driver will lose their license for 90 days. If the driver refuses to take a chemical sobriety test, then the driver will lose their license for 1 year. The driver loses their license because they violated Ohio’s implied consent law: the driver breached the contract with the BMV. The ALS gets longer if the driver has multiple OVI arrests in the past.
GOING TO COURT
When a person’s OVI case is filed in court, the judicial process begins. The person who is charged with OVI is called the defendant. Generally, there are 3 phases of an OVI case:
- Arraignment. Arraignment is the first phase. At arraignment, the judge informs the defendant of their constitutional rights (to an attorney, to a jury trial, etc.). Then, the driver must enter a plea. Generally, during this phase, the defendant can enter a plea of guilty or plea of not guilty.
- A plea of guilty is a complete admission of guilt to the charged filed.
- A plea of not guilty is a denial of the charges filed.
- Pretrial. Pretrial is where the majority of time is spent. During the pretrial phase, the prosecutor delivers the evidence to the defendant or defense attorney. Oftentimes, the prosecutor and defense attorney engage in negotiation in an attempt to arrive at a fair resolution. After reviewing the evidence, the defense attorney may find problems with the prosecutor's case: problems that violated the defendant's constitutional rights. For example, a defendant's rights may have been violated by a police officer if the officer did not have probable cause to arrest the defendant. The defense attorney will file a motion to suppress evidence in an effort to have the unconstitutional conduct thrown out (suppressed) from the prosecutor's case, making the prosecutor's case weaker.
- Trial. If a fair resolution cannot be reached, the next and final phase is trial. Generally, a defendant has a right to a jury trial for offenses carrying the possibility of incarceration (jail or prison time). For misdemeanor offenses (like most OVI's), a defendant has the right to a jury of 8 people. For felony offenses, a defendant has the right to a jury of 12 people. The jurors are supposed to be the defendant's "peers," who will come from all over the county in which the trial take place. The prosecutor has the burden to persuade the jury that the defendant violated the law. The prosecutor must give the jury "proof beyond a reasonable doubt" that the defendant violated the law. The defendant has no burden of proof. If the prosecutor meets that heavy burden, then the jury will return a verdict of guilty against the defendant. If not, then the verdict will be not guilty.
If a driver enters a plea of guilty to OVI at arraignment, then a judge will sentence (punish) them. At that point, the judicial process generally ends. Before a driver enters a guilty plea, it's always best to consult with an attorney to better understand their rights and review the state’s case.
If a driver enters a plea of not guilty to OVI at arraignment, then the case will move to the second phase (pretrial) and be assigned to a judge. There will almost certainly be multiple court dates where the defense attorney will meet with the prosecutor to get copies of evidence, negotiate a fair resolution, and litigate legal issues. These are known as pretrial matters because they occur before any trial.
The evidence in an OVI case may include:
- Police reports and witness statements
- Cruiser video footage
- Body camera footage
- 911 recordings
- Breathalyzer machine calibration records
- Blood and urine analyses and processes
During the pretrial phase, there maybe be challenges to the prosecutor's evidence. For a defendant, the goal of litigating (arguing) in a criminal case is to attack vulnerabilities and weaknesses in the prosecutor's case. After thoroughly reviewing the case, the defense attorney will meet with the client and advise the best course of action. If there are issues with the prosecutor's case that have violated the clients’ rights, then the defense attorney may file a motion to challenge the state’s evidence. A motion is simple a request for the court to do something; that is, provide relief to the personal filing the motion for specific reasons. Often, this motion is called a motion to suppress evidence. After filing the motion, the court will schedule a time for an evidentiary hearing to determine whether the relief requested in the motion should be given to the defendant.
In an OVI case, the defense attorney may raise these important arguments in the motion to suppress evidence:
- Did the officer have a reason to pull over or seize the driver?
- Did the officer have a reason, after pulling over the driver, to detain the driver longer to administer standardized field sobriety tests?
- If the driver did standardized field sobriety tests, did the officer administer, instruct, and demonstrate the tests in compliance with the law?
- Did the officer have probable cause to arrest the driver?
- Did the officer properly advise the driver of their constitutional rights before asking the driver questions?
- Did the driver properly advise the driver of the consequences of refusing a post-arrest chemical sobriety test or testing over the legal limit?
- If the driver submitted to a breath, blood, or alcohol test, the the state comply with the specific administrative rules mandated by the Ohio Department of Health?
- Did the officer administer a post-arrest sobriety test within 3 hours of pulling over the driver?
A favorable ruling on this motion could mean that the prosecutor will lose evidence and be prohibited from using it against the driver. This weakens the government's case.
Similar to DUI is the crime of HAVING PHYSICAL CONTROL UNDER THE INFLUENCE, commonly referred to as PHYSICAL CONTROL. This offense sounds very similar to DUI / OVI. However, there is one important exception: whereas a DUI / OVI offense requires the offender to drive a vehicle under the influence, PHYSICAL CONTROL does not require the offender to drive a vehicle. All that is required to be guilty of PHYSICAL CONTROL is being in the driver's position of the front seat of a vehicle and having possession of the vehicle's ignition key or other ignition device while under the influence of alcohol, drugs, or a combination of the two.
A common PHYSICAL CONTROL scenario involves a person who gets in their car under the influence of alcohol and falls asleep behind the wheel. That person has not committed a DUI / OVI because they have not driven the vehicle, but they may be guilty of PHYSICAL CONTROL.
Another notable difference between PHYSICAL CONTROL and DUI / OVI is the penalty: whereas DUI / OVI offenses have strict mandatory minimum penalties, PHYSICAL CONTROL does not. PHYSICAL CONTROL also is not treated as moving traffic violation by the Ohio Bureau of Motor Vehicles, meaning that the offender will not have points assessed to their driving record.