Consequences of a DUI/OVI Conviction

What is a DUI/OVI?

OVI is the legal term in Ohio for what is commonly called “DUI.” OVI stands for Operating a Vehicle under the Influence of alcohol and/or drugs. Another term that is used in other states is “OMVI.” The “M” in OMVI stands for “motorized.” However, Ohio does not have this terminology because a person can be charged with DUI/OVI by riding a bicycle. Ohio law does not require that the vehicle be a motorized vehicle (e.g., car or truck).

Ohio has two types of DUI/OVI: “per se” and “impaired.” The prosecution can prove that you committed DUI/OVI by either of these. DUI/OVI “per se” means the prosecution must prove that you operated a vehicle with a prohibited concentration of alcohol or drugs in your system (blood, breath or urine). The prosecution does not need to prove that alcohol or drugs impaired your ability to drive. The prosecution simply needs to prove that your system contained a prohibited amount of alcohol or drugs. DUI/OVI “impaired” means the prosecution must prove that you operated a vehicle under the influence of alcohol or drugs. The level of concentration in your system does not matter, only that it impaired your ability to drive.

If you assent to tests (more on that later) of your blood, breath or urine, and you test over the legal limit, you will be charged with both DUI/OVI per se and DUI/OVI impaired. If you do not take the tests, or if the results were not over the legal limit, you will be charged with DUI/OVI impaired only.

DUI/OVI Penalties

Conviction for DUI/OVI in Ohio can result in a variety of penalties. There are mandatory minimum sentences that must be imposed by the court, and numerous penalties that the judge may impose. These penalties include incarceration, fines, license suspension, court costs and points on your license. Additionally, the court may require yellow plates, alcohol and/or drug treatment, alcohol monitoring, probation, and vehicle immobilization or forfeiture. The minimum mandatory and maximum sentences increase based on the number of DUI/OVI convictions that you have had in the past 6 years and the past 20 years.

If you are convicted of DUI/OVI with a “high test” (blood alcohol concentration of 0.170 or higher), or for a “test refusal with prior conviction” (in the last 20 years), the minimum jail sentence is doubled. In addition to the criminal penalties outlined above, there are numerous other consequences for a DUI/OVI conviction. These include negative impacts to current/future employment, ability to drive a company vehicle or transport children, educational opportunities, and increased car insurance premiums. Moreover, a DUI/OVI conviction will go on your permanent criminal record and is not eligible to be sealed or expunged.

Evidence Gathered in DUI/OVI Cases

Police Observation While You Are Driving

Law enforcement is instructed to perform DUI/OVI investigations in 3 phases. The first phase is while the vehicle is in motion. The police are taught to look for “clues” that the driver is under the influence of alcohol or drugs. These clues include:

• Weaving, making wide turns, and driving outside the marked lines/lanes;
• Hitting or almost hitting objects;
• Problems stopping or making sudden changes in speed;
• Responding slowly to traffic lights and driving without your headlights on; and
• Making unsafe lane changes, driving recklessly or making improper turns.

The police are looking for these clues because they are required to have some justification for stopping your vehicle. If the police officer lacked justification for stopping your vehicle, the judge will throw out all evidence obtained by the police after the stop. However, even if the police officer was justified in making the stop, the cruiser video from the officer’s car may demonstrate that the officer did not observe the clues outlined above. The absence of these clues can be used at trial.

Law Enforcement Pulls You Over

When the police attempt to pull you over, the officer will note any delay in responding to flashing lights and any difficulty in stopping the vehicle. Once pulled over, the second phase of the DUI/OVI investigation begins: the personal contact phase. The police officer will be looking to see whether your are under the influence of alcohol or drugs. This evidence can include:

• Odor of alcohol or other odors attempt to conceal alcohol (e.g., breath mints);
• Bloodshot or glassy eyes;
• Slurred speech, inconsistent responses or admissions of drinking;
• Alcohol, alcohol containers, drugs or drug paraphernalia;
• Lack of coordination in operating the vehicle (e.g., turning the car off), getting driver’s license or demonstrating proof of insurance.

While law enforcement requests your driver’s license or insurance, the police officer will attempt to divide your attention by asking questions. Alcohol or drug consumption can lead to difficulties handling multiple tasks at once. Difficulty handling multiple tasks is circumstantial evidence of driving under the influence. The police are attempting to gather enough “clues” to justify removing the vehicle and performing field sobriety tests on you.

The attorney that represents you will review the evidence and determine whether the police officer was justified in detaining you to administer field sobriety tests. If the court determines that there was no justification to detain you, the judge will throw out any evidence obtained after your detainment. However, even if there was justification for your detainment, the evidence may demonstrate that the officer lacked the observable “clues”, which can be used at your trial to demonstrate that you were not under the influence.

Field Sobriety Tests

After being removed from your vehicle, the police officer will perform several standardized field sobriety tests. While police will never mention this, you are not required to submit to field sobriety tests and there are no penalties for declining to submit to them. The three standardized field sobriety tests are the horizontal gaze nystagmus test, walk and turn test, and one leg stand test. These tests are used by law enforcement to determine whether or not they will charge you with DUI/OVI. Your performance on these tests will also be used by the prosecution as circumstantial evidence that you were under the influence of alcohol or drugs.

The horizontal gaze nystagmus test is performed by the police to test the presence of nystagmus in your eyes. The police officer will have you follow a pen or finger with your eyes. The officer is looking to see if there is an involuntary jerking of the eye (nystagmus) when you move your eyes back and forth. Numerous studies have demonstrated that the consumption of alcohol increases the presence of nystagmus. The test is a 6-part test and while this test is administered, the police will be counting the number of times nystagmus was observed. If the officer observes nystagmus 4 or more times, it suggests that your blood alcohol concentration is higher than the legal limit of 0.08.

The walk and turn test begins with the police officer instructing you to stand on a line. The officer will then tell you to walk 9 steps, heel-to-toe, down the line, turn around, and do the same thing again. As with the horizontal nystagmus test, the police are looking for “clues” to determine whether you are under the influence of alcohol or drugs. There are 8 possible clues and the police need 2 or more to indicate that your blood alcohol content is higher than 0.08. These clues include:

• Loss of balance during police instructions;
• Starting the test too early;
• Stop walking;
• Failing to touch heel-to-toe;
• Raising your arms for balance;
• Stepping off the line;
• Turning improperly; and
• Taking an incorrect number of steps.

The final test is the one leg stand test. The police officer will ask you to raise one foot approximately 6 inches off the ground, keep both arms at your side, and count aloud for 30 seconds. As with the previous two tests, the officer will be looking for clues. There are 4 possible clues and law enforcement needs 2 or more to indicate a blood alcohol content of 0.08 or more. The four clues are swaying, hopping, putting one foot down, and using your arms for balance.

While the three tests outlined above are standardized and must be performed in substantial compliance with appropriate guidelines, police officers also utilize non-standardized tests to determine if a person is under the influence of alcohol or drugs. Common tests include reciting the alphabet, counting backwards and touching your nose. Since these tests have no standardized procedure and lack sufficient evidence demonstrating a correlation between a person’s failure and that person being under the influence of alcohol or drugs, they do not carry the same weight as the tests outlined above.

When do the Police Decide to Charge DUI/OVI and What About My Miranda Rights?

After law enforcement has finished conducted the field sobriety tests, the officer will decide whether to arrest you for DUI/OVI. If the police officer places handcuffs on you, you are under arrest. To justify the arrest, the police officer must be supported by probable cause to believe that you were operating a vehicle under the influence of alcohol or drugs. If the arrest was not supported by probable cause, any evidence obtained after the arrest is thrown out. This includes blood, breath or urine tests and any statements made to the officer. However, being taken to a police station is not the same as being placed under arrest.

The most misunderstood aspect of criminal law for most people are Miranda rights. If you have watched Law & Order, you have seen the police arrest a suspect and immediately inform them of their Miranda rights. It implies that the failure to give Miranda warnings means the entire case will be thrown out. This is simply not true.

During the DUI/OVI investigation, the police will undoubtedly ask you a variety of questions. These will include questions such as, “Where have you been and how much alcohol have you consumed?” If you make any statements (e.g., “I drank 10 beers”), the prosecution will use those statements against you. Miranda, however, only applies when you are in custody. If you are in custody and the police fail to administer Miranda warnings, any statements made by you while in custody cannot be used against you. However, those statements are thrown, not the case.

The question then is what does “custody” means? This is a gray area in the law. You do not have to be formally placed under arrest to be in custody. You have to feel as those you cannot leave. Thus, when the situation goes from a simple traffic stop to an investigation into whether you have committed DUIOVI, you are most likely in custody. Specifically, when the police begin to administer any field sobriety tests, you are most likely in custody.

Blood, Breath and Urine Testing

Although the exact same amount of alcohol effects people differently, the legal limit is a constant. In Ohio, alcohol and drug concentrations are measured utilizing blood, breath and urine testing.

Blood tests are the most accurate and come in two varieties: hospital tests and crime lab tests. Hospital tests are not required to comply with Ohio Department of Health regulations to be admissible. However, they must be supported by expert testimony. In contrast, crime lab tests do not require expert testimony to be admissible, but must be conducted in compliance with Ohio Department of Health regulations.

Additionally (and shockingly for most people), blood tests can be conducted against your will. The police can force you to give a blood sample if the police obtain a search warrant or if there are “exigent circumstances” (i.e., a compelling need that justifies taking the blood sample right then). There are many potential problems with blood tests that your attorney can challenge. These include problems with how the blood was drawn, collected, stored, and tested. If there are issues with how the blood sample was performed, the test can be thrown out.

Breath tests are more frequently done by police because of convenience. Instead of the hassle of going to a lab to have your blood drawn, law enforcement typically uses a mobile breath machine. For this test to be admissible, it must be conducted with an approved machine and the machine must be maintained in compliance with a laundry list of regulations. If police fail to comply with these regulations, the breath test can be thrown out by the court.

The concentration of alcohol or drugs in your urine is not the same as the concentration in your blood. Thus, the limits for both alcohol and drugs are different for urine. As with the other tests, regulations govern the performance of a urine test. To be admissible in court, the test must comply with those regulations. If the urine sample was not collected, handled or tested appropriately, the test can be thrown out.

Should I Submit to Testing?

The first thing that comes to mind for most people when talking about alcohol or drug testing is whether they should submit. Before submitting to a test, consider the following:

• If you submit to the test and the result is under the prohibited concentration, your license will not be suspended and the results of the test will not be used against you in court. However, you can still be charged with DUI/OVI.
• If you submit to the test and the result is a prohibited amount, your license will be suspended for at least 90 days (longer if you have prior test refusals or DUI/OVI convictions) and the prosecution will use the results against you.
• If you refuse to submit to the test, your license will be suspended for at least 1 year (longer if you have prior DUI/OVI convictions or test refusals). However, the prosecutor will not have any test results to you against you.
• If you refuse the test, you may be subject to having your blood drawn against your will. You will be subject to at least a 1 year license suspension for refusal to submit to testing and the prosecution will use the results of the blood test against you.

Be aware, however, that it is against the law for some people to refuse to submit to testing. If you have been convicted of OVI in the past 20 years, it is a separate offense to refuse to submit to testing. Also, a person on probation for DUI/OVI cannot refuse to submit to testing as it will be a violation of probation. Finally, commercial drivers face special sanctions for refusing to submit to a test.

The Court System and Procedure

Administrative License Suspension (ALS)

Upon entering the court system for a DUI/OVI, one of the first things you will confront is an administrative license suspension. An ALS comes in two varieties:

• If you refuse to submit to testing or test over the legal limit, an ALS is immediately imposed by the Ohio Bureau of Motor Vehicles;
• If you are found guilty or plead guilty to DUI/OVI, a court suspension will be imposed.

Even with an ALS, however, the court may grant limited driving privileges. The length of the ALS and the waiting period before driving privileges will be granted depends on whether you refused to submit to testing or tested over the legal limit, along with the number of previous OVI convictions and refusals to submit to testing. The following two charts summarize ALS in Ohio:

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Administrative license suspensions fall under Ohio’s implied consent law. This law requires any driver in Ohio to consent to a blood, breath or urine test for alcohol and/or drugs if arrested for OVI. If your license is suspended, you have the right to notice of the suspension and an opportunity to appeal the suspension. The suspension will only be valid if the police followed the requisite procedures in suspending your driver’s license.

Arraignment

An arraignment is the first court appearance that criminal defendants make. The date and time of the arraignment are written on the bottom of the traffic ticket and should take place within 5 business days from the time of the incident. At the arraignment, the court notifies the defendant of the charges he/she faces and the defendant enters a plea of guilty, not guilty of no contest. While the first two pleas are self-explanatory, a no contest plea means that you accept that the facts in the complaint are true. While the court will enter a plea of guilty, the advantage of pleading no contest is that it cannot be used against you in a later civil trial.

At arraignment, your attorney can contest the ALS by motion to appeal or terminate. If the court is unable to hear the motions (this is often the case because of the high volume of cases), your attorney should ask the court to stay the ALS. This means that your license is returned to you while your case is pending. If the judge does not assent to a stay, your attorney should ask the court for limited driving privileges.

Discovery

Discovery is where your defense attorney and the prosecution exchange information and evidence related to the case. Your attorney will file a request or demand for discovery with the clerk of courts and the prosecution will respond by giving your attorney a variety of items, including:

• Arrest report and police description of events;
• Alcohol and/or drug reports;
• Field sobriety test report;
• Witness statements and statements made by you;
• Test results from blood, breath and urine testing;
• Expert witness reports;
• Video from the police vehicle;
• Administrative license suspension report; and
• Your criminal record.

In addition to filing a request or demand for discovery, your attorney can also file a public records request. This will allow your attorney to obtain information related to maintenance records for the breath-testing machine, machine operator and lab technician permits, and lab reports.

Pretrial

This will be your second appearance in court, but it is primarily used by the prosecutor and defense attorney to talk about the case and possibly negotiate a plea agreement. If you pled not guilty at your arraignment, the time between arraignment and pretrial will give your attorney the ability to investigate your case and determine if there are any weaknesses to exploit. If there are weakness, your attorney will use this information to negotiate a better plea agreement or persuade the prosecutor to dismiss the case. However, you can also use this pretrial hearing to plea guilty if you feel that is the best course of action.

Motion Hearing

Prior to a trial, defense counsel will most likely seek to file a number of motions. These include motions to suppress evidence based on an illegal search and seizure, field sobriety tests, blood, breath and urine tests and your statements to police. Also, your attorney will file a motion to appeal your ALS or terminate it.

Negotiations between the prosecutor and defense attorney also take place (similar to the pretrial). If no agreement is made, the motion hearing will be held and the prosecutor and defense attorney will put on witnesses and evidence related to the motions. The judge will then rule on the motions.

Trial

If the case is not resolved, a trial date will be scheduled. For criminal cases, including DUI/OVI, you have the right to a bench or jury trial. A bench trial has no jury and the case is decided by a judge. If you elect to have a jury trial, and the case is a misdemeanor OVI, a jury trial will consist of 8 jurors. For a felony DUI/OVI trial, the jury will have 12 jurors. Jury trials, however, are rare and most of the time the prosecutor and defense counsel will be able to negotiate a deal. Only where the defendant has a compelling reason (e.g., employment requires driver’s license or clean driving record) to not plead guilty to DUI/OVI or a lesser offense.

Sentencing

This is the finally phase of criminal proceedings for most defendants. If you plead guilty to DUI/OVI or a lesser offense, or if you are found guilty at trial, a sentencing hearing is held. This can be held on the same day as the guilty plea or trial, or a later time. The prosecutor will make a recommendation to the court and defense counsel will make a few remarks on your behalf. The judge will then impose a sentence and has a wide amount of latitude in doing so.

Columbus and Delaware, Ohio DUI/OVI Defense Attorney

If you have been charged with DUI/OVI in Columbus or Delaware, Ohio, call Johnson Legal, LLC at (614) 987-0192 and speak with attorney David Johnson. As an experienced and dedicated criminal defense attorney, Attorney Johnson will discuss with you what happened, investigate your case, and vigorously defend you and your ability to drive in court.