Examining the Underlying Traffic Violation

Usually, a person is not pulled over for drunk driving.  You are pulled over for something else, a minor traffic violation, the police smell alcohol on you, and it goes sideways from there.  At that point, your attorney must examine the underlying traffic offense to see if that offense really is an offense. 

 

It may surprise you but the police are hardly experts here.  For instance, I have seen people pulled over in Ohio for having only one working taillight.  But the law only requires one.  In fact, if you take a right or left turn, and the sign forbidding that practice is not in accordance with the state rules on size, height and so on, then the turn you took is legal.  So the lesson here is to examine the underlying reason that the police stopped you for in the first place.

Refuting Police Officer’s Claim that You Refused to Take DUI Test

In some cases, an issue arises as to whether or not a person actually refused to test. This would seem a straightforward question, but not always. Take the following example:

You are driving home from watching a football game at a friends house and a deer jumps out in front of your car. You swerve to avoid it and your car goes off the road. It rolls a few times, and during the process you hit your head on something pretty hard.

The next thing your remember, you are waking up in the hospital a day later. You learn that the police have charged you with drunk driving, and for refusing to consent to alcohol testing. In the police report, it says that the officer came in and asked you to take the test and that you said no. They marked you down as refusing and now your license is under suspension for a full year.

You can remember none of this.

You will want to challenge your suspension at an ALS hearing and argue that when you “refused” the test, you had no capacity to make such a decision given the way that your head injury affected you. It will be a question of fact for the court to decide, but if you can provide medical records as well that show that you had a concussion, your attorney may be able to get the refusal thrown out and your license reinstated.

What is Drunk Driving and What Are All Those Letters (DUI, DWI, OMVI, OVI) About?

Drunk Driving. It has been called DUI, DWI, OMVI, OVI. The name changes whenever the Ohio Legislature wants to change the law, which happens often. Right now the offense in Ohio is called OVI.

If you get charged with OVI and you took and failed the test, you are charged with two different OVI offenses. But take heart, you can only be sentenced for one of them if found guilty.

The first offense you will be charged with is OVI Per Se. To be convicted of OVI Per Se, the government must show a jury beyond a reasonable doubt that you were operating a vehicle with a concentration of alcohol within your blood, breath, or urine which is .08 or over. You can put on all the evidence in the world that .08 had no effect on your driving. It does not matter. If you test over .08 and the prosecutor gets the test results in, you are done.

The second offense is called OVI Impaired. To be convicted of OVI Impaired, the government must show that you operated a vehicle with some concentration of alcohol in your blood, breath, or urine, no matter how much or how little, so long as it appreciably impaired your ability to drive. This is the charge the prosecutor will pursue if you refused the test, if the test has been thrown out, or if you passed the test but still showed some alcohol in your blood, breath or urine, even if it is under .08.

To Blow or Not to Blow – Beat your Ohio DUI Charge

First off, there is a distinction that needs to be drawn between a test that they have you blow into by the roadside (a Portable Breath Test or PBT) and a test back at the station. You are under no legal obligation and there is no penalty for refusing to blow at the roadside. It is only once you are back at the station that things become more complicated.

It used to be easy for attorneys advising clients in drunk driving cases when it came to this question. In the old days, the answer was to never blow. The reason for that was that it is easy to convict a person of driving with a concentration of alcohol in their blood, breath or urine above a certain level if you have a test result from a measuring device that you can put before the jury. Those folks just weren’t going to get any deals.

It is a lot harder for a prosecutor to convince a jury beyond a reasonable doubt that you were driving drunk if you did not take the test and the video shows that you weren’t slurring your words or acting the fool. Those folks were getting a lot of deals.
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Ohio DUI OVI Frequently Asked Questions

What Are the Penalties for Driving Drunk in Ohio?

In Ohio, driving drunk is a first degree misdemeanor. That means that it is punishable by six months in jail and up to $1,000.00 in fines, plus court costs. Most OVI defendants do not get the maximum sentence for their first offense. But if you start getting second and third offenses, you can start accumulating real jail time and serious fines.

You can even be charged with a felony on your fourth OVI. That means prison time.

How Much Will Attorneys Fees be for Defending a Drunk Driving Charge – DUI?

Our firm charges $1,500.00 for a first offense, and $2,500.00 for second offense. Third Offenses are $3,500.00. If other charges (beyond traffic offenses) accompany the OVI charge, it may be more. We take credit cards.

How Long Will They Suspend My Driver’s License for a DUI?
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What Should I Do if I am Stopped for Drunk Driving in Ohio?

You should be polite and respectful at all times to any law enforcement officer. Hostility will be used as evidence of intoxication. If later on there are close issues in the case, the prosecutor will ask the officer what he thinks about giving you a deal. If the officer remembers you as a “good kid” you will get the deal. If you were loudly talking about pork, pigs, Nazis with badges and wanting badge numbers, the cop is going to tell the prosecutor not to give you a good deal.

Do not answer questions about how much you have had to drink and when. Do not admit to driving the car. Simply state that it is late and you wish to be on your way and that you don’t want to answer questions. The less you say the better.
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Should I Plea Bargain My OVI/DUI Case

You should do nothing without the help of an attorney. The prosecutor will always offer to drop one of the two OVI charges against you if you are charged with OVI Impaired and OVI Per Se. This is no deal at all since they can only convict and sentence you for one of the two offenses anyway.

If there is a problem with your case, the prosecutor will often offer a plea to a lesser offense like Reckless Operation (4 points on your license rather than the six points for OVI) or Physical Control of a Motor Vehicle While Intoxicated (also a first degree misdemeanor, but no points since it is not a moving violation).

If there is an offer of Reckless Op or Physical Control, you need to think long and hard about taking it. Neither is an OVI and you can honestly answer on job applications from then on that you have never been convicted of drunk driving. If these offers are made, it is something of a win for you.

If you refuse these offers and push a trial on the court, it may not go your way. With all of the media frenzy about how drunk drivers are causing a nationwide holocaust on our roadways, you may not be able to get a jury to see things your way. Even if your case has a hole in it that your defense attorney can drive a truck through, if a jury doesn’t get it, all you have left is a costly appeal.

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