DUI & OVI Offenses (Driving Under the Influence)

 
 

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 and/or drugs (OVI).  Other states use abbreviations that differ from Ohio’s OVI, including DUI (driving under the influence, the most popular abbreviation for impaired driving) and DWI (driving while impaired).  These laws prohibit drunk driving or drugged driving.

Ohio Impaired Driving Law Chart_Page_2.jpg

The penalties for DUI / OVI increase with prior convictions to DUI / OVI.

DUI / OVI is an enhanceable offense: the more DUI / OVI’s a person is convicted of, the more severe the penalty.

A DUI / OVI will greatly affect one’s ability to drive and earn a livelihood. A DUI / OVI results in mandatory penalties: jail or prison time, fines and fees, driver’s license suspensions, probation and court-ordered supervision, loss of employment, and increase of insurance premiums.


There are two types of DUI / OVI in Ohio

Generally, there are two types of DUI / OVI in Ohio. The two types of DUI / OVI are separate and distinct offenses. A driver can be charged with both. The two type of DUI / OVI in Ohio are:

  1. Operating a vehicle while under the influence (DUI / OVI Impaired); and

  2. Operating a vehicle with a prohibited concentration (DUI / OVI Per Se).

Type 1: DUI / 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: DUI / 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 type of test the driver performs:

  • Alcohol - breath test: 0.08g/210L 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.

  • Amphetamine

  • Cocaine and cocaine metabolite

  • Heroin and heroin metabolite

  • Lysergic acid diethylamide (LSD)

  • Marijuana and marijuana metabolite

  • Methamphetamine

  • Phencyclidine (PCP)

  • Salvos divinorum


But wait: what if I refuse to blow? You can still be charged with DUI / OVI.

A common misconception among drivers is, “If I refuse to blow into the breathalyzer, then I can’t be charged with DUI / OVI.” This couldn’t be more wrong. To be charged with DUI / OVI Impaired (type 1 OVI, explained above), the officer does not need the driver to blow into a breathalyzer, or submit a blood or urine sample. Rather, all an officer needs to do is accurately make 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.

Although refusing any or all tests offered by the law enforcement officer may make the case against the driver generally weaker, the law is clear: that driver can still be charged with a DUI / OVI under Ohio law.


Enhanceable Offense

DUI / OVI is an enhanceable offense: the more DUI / OVI’s a person is convicted of, the more severe the penalty. The look-back period for prior convictions of DUI / OVI is 10 years. Further, penalties become more severe if a person is arrested for a DUI / OVI and either (1) tests at a high tier (i.e., greater than or equal to 0.170 BAC) or (2) has a prior DUI / OVI conviction within the last twenty years refuses to taking a blood, breath, or urine test.

Generally, OVI is a misdemeanor level offense. However, depending on the number of prior DUI / OVI convictions one has, it can be a felony level offense.

DUI / OVI as a Misdemeanor

1st offense DUI / OVI within 10 years: misdemeanor of the first degree

1st offense DUI / OVI within 10 years (high tier or refusal with a prior conviction): misdemeanor of the first degree

2nd offense DUI / OVI within 10 years: misdemeanor of the first degree

2nd offense DUI / OVI within 10 years (high tier or refusal with a prior conviction): misdemeanor of the first degree

3rd offense DUI / OVI within 10 years: unclassified misdemeanor

3rd offense DUI / OVI within 10 years (high tier or refusal with a prior conviction): unclassified misdemeanor

DUI / OVI as a Felony

4th or 5th offense DUI / OVI within 10 years: felony of the fourth degree

4th or 5th offense DUI / OVI within 10 years (high tier or refusal with a prior conviction): felony of the fourth degree

6th offense DUI / OVI within 20 years: felony of the fourth degree


Jail Time or Prison Time

A person who is convicted of a DUI / OVI faces mandatory incarceration. Depending on the number of the person’s prior OVI convictions, the term of incarceration may be served at a local jail or a state prison. For first offenders, the person may serve the jail term in a driver intervention program, typically at a hotel, where the driver gains awareness of DUI / OVI matters.

Incarceration for Misdemeanor DUI / OVI

1st offense DUI / OVI within 10 years: 3-180 days jail

1st offense DUI / OVI within 10 years (high tier or refusal with a prior conviction): 6-180 days jail (or 3 day jail + 3 day driver intervention program)

2nd offense DUI / OVI within 10 years: 10-180 days jail

2nd offense DUI / OVI within 10 years (high tier or refusal with a prior conviction): 20-180 days jail

3rd offense DUI / OVI within 10 years: 30-365 days jail

3rd offense DUI / OVI within 10 years (high tier or refusal with a prior conviction): 60-365 days jail

Incarceration for Felony DUI / OVI

4th or 5th offense DUI / OVI within 10 years: 2-30 month prison (or 60-365 days jail)

4th or 5th offense DUI / OVI within 10 years (high tier or refusal with a prior conviction): 4-120 months prison (or 120-365 days jail)

6th offense DUI / OVI within 20 years: 2-30 month prison (or 60-365 days jail)


Driver’s License Suspensions

When a person is arrested for DUI / OVI, the driver loses their driver's license; that is, the officer suspends it. This suspension is known as 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 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 DUI / OVI) 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 ALS gets longer if the driver has multiple OVI arrests in the past.

After a person is convicted of DUI / OVI, the courts impose their own driver’s license suspension that supersedes the ALS. The court suspension gets longer depending on the number of DUI / OVI conviction the person has.

Suspension Lengths for Misdemeanor DUI / OVI

1st offense DUI / OVI within 10 years: 1-3 years

1st offense DUI / OVI within 10 years (high tier or refusal with a prior conviction): 1-3 years

2nd offense DUI / OVI within 10 years: 1-7 years

2nd offense DUI / OVI within 10 years (high tier or refusal with a prior conviction): 1-7 years

3rd offense DUI / OVI within 10 years: 2-12 years

3rd offense DUI / OVI within 10 years (high tier or refusal with a prior conviction): 2-12 years

Suspension Lengths for Felony DUI / OVI

4th or 5th offense DUI / OVI within 10 years: 3 years-life

4th or 5th offense DUI / OVI within 10 years (high tier or refusal with a prior conviction): 3 years-life

6th offense DUI / OVI within 20 years: 3 years-life


Fines and Fees

A person who is convicted of a DUI / OVI faces mandatory fines to the court, as well as driver’s license reinstatement fees to the BMV. Generally, after a person serves their driver’s license suspension for a DUI / OVI, they must pay to the BMV a fee to reinstate their license. Generally, the reinstatement fee is $475.00.

As is the case for the incarceration and license suspension penalties, the court must also fine a person who is convicted of DUI / OVI. The fines for

Fines for Misdemeanor DUI / OVI

1st offense DUI / OVI within 10 years: $375-$1,075

1st offense DUI / OVI (high tier or refusal with a prior conviction): $375-$1,075

2nd offense DUI / OVI within 10 years: $525-$1,625

2nd offense DUI / OVI within 10 years (high tier or refusal with a prior conviction): $525-$1,625

3rd offense DUI / OVI within 10 years: $850-$2,750

3rd offense DUI / OVI within 10 years (high tier or refusal with a prior conviction): $850-$2,750

Fines for Felony DUI / OVI

4th or 5th offense DUI / OVI within 10 years: $1,350-$10,500

4th or 5th offense DUI / OVI within 10 years (high tier or refusal with a prior conviction): $1,350-$10,500

6th offense DUI / OVI within 20 years: 3 years-life


Other Penalties

A DUI / OVI not only carries mandatory minimum fines, incarceration, and licenses suspension, but also a wide variety of other penalties, including:

  • Mandatory probation or court-ordered treatment.

  • Conditions on driving privileges.

  • Restricted license plates (informally known as “party plates).

  • Ignition interlock devices (breath test machines fitted to one’s vehicle).

  • Immobilization of vehicle.

  • Forfeiture of vehicle to the government.

  • 6 points assessed by the Bureau of Motor Vehicles (BMV)


Physical Control

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.


Going to Court

When a person’s DUI / OVI case is filed in court, the judicial process begins.  The person who is charged with DUI / OVI is called the defendant.  Generally, there are 3 phases of an OVI case:

  1. 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.

  2. 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.

  3. 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 DUI / 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 — and never has a — burden to prove anything. 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 DUI / 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 DUI / 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 DUI / 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.  The motion to suppress evidence can influence whether the case proceeds to trial or ends with a more favorable result. 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 DUI / 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.


COLUMBUS DUI ATTORNEY | COLUMBUS OVI ATTORNEY

Have you been charged with a DUI / OVI offense in Ohio? Contact The Stavroff Law Firm today to learn about your rights and begin building your defense.