Being pulled over by the police can be alarming. However, this is particularly true when law enforcement suspects that you have been driving under the influence of alcohol and/or drugs (DUI/OVI). As the officer approaches your vehicle and asks for your license, registration and proof of insurance, you will undoubtedly feel nervous, especially when the officer says, “Sit tight, I’ll be back.”

When the officer returns he will say, “I smell alcohol coming from your vehicle. Have you been drinking tonight?” You may start to think about a glass of wine or beer you had earlier. The officer will then ask you to exit the vehicle and will inform you that he wants you to perform several field sobriety tests (horizontal gaze nystagmus, walk and turn, and one leg stand).

The first question most ask themselves is, “Can I speak with an attorney first?” The answer to this question, unfortunately, is “no.” This may seem wrong because everyone has a right to not incriminate themselves and to speak with an attorney before talking to the police. The U.S. Constitution and, specifically, the 5th Amendment, state that we have the right to counsel, and the U.S. Supreme Court has held that this right exists at all “critical stages” of criminal cases. So, what is a “critical stage?”

The U.S. Supreme Court defined this term in United States v. Wade as “any stage in the prosecution … where counsel’s absence might derogate from the accused’s right to a fair trial.” Courts have further interpreted the phrase “critical stage” to include police interrogations and post-accusation lineups. Field sobriety tests, however, are not included as a “critical stage.”

While this seems unfair to a person that is pulled over for suspected DUI/OVI, courts in Ohio have repeatedly held that there is no Constitutional right to counsel before submitting to field sobriety tests. This principle was reaffirmed most recently in State v. Davis. Ohio courts have also taken this line of reasoning a step further and have held that when deciding whether to take a DUI/OVI breath, blood or urine test, there is no right to counsel because this too is not a “critical stage.”

Since you do not have the right to consult with an attorney prior to submitting to any field sobriety test, you must ask yourself whether it is in your best interests to do so. You are under no obligation to submit to field sobriety tests and these tests are designed for you to fail. However, refusal to submit to a breath test will result in an immediate administrative license suspension (ALS) for one year.

This, however, is preferable to giving the prosecution evidence that you were driving while intoxicated. While an attorney can obtain limited driving privileges (e.g., drive to school, employment, doctor’s appointments, etc.) for a person under an ALS, submitting to field sobriety tests and having that information used against in court may result in a DUI/OVI conviction. This will result in a permanent criminal record and a DUI/OVI conviction in Ohio cannot be expunged.

Columbus and Delaware, Ohio DUI/OVI Defense Attorney

If you have been charged with DUI/OVI in Columbus or Delaware, Ohio, contact Johnson Legal, LLC and speak with an experienced criminal defense attorney. Attorney David Johnson of Johnson Legal, LLC will discuss your case and assist you in fighting the charges. Call (614) 987-0192 or send an email to schedule a consultation regarding your DUI/OVI case.