“Never speculate about evidence – if a juror must speculate to find guilt, they must disqualify themselves – a juror must report other jurors to the judge who wrongfully speculate about guilt of an accused – impaired driving law is made up of much speculation for guilt to attach so tread carefully judging this crime.”
If someone is charged with an impaired driving offense (or DUI, DWI, OVI, drunk driving, etc.), they may preserve a defense by getting a DUI, OVI defense lawyer. The lawyer must realistically look at what happened and then a strategy can be made on the case’s strengths and weaknesses. Remember, in the beginning one should be attempting to stay out of further jail and save their driving privilege, if they can. Trial is another whole story.
Call us at (330) 334-6345 for a legal consultation to review your DUI, OVI or DWI case, or submit a brief description of your legal problem and we will respond promptly.
There are many words we use to describe driving under the influence or operating charges. Drunk driving, DUI, & DWI are the common ones, but there is OMVI (Operating Motor Vehicle Intoxicated), and other acronyms. Whatever we call it, it boils down to operating a vehicle where one’s mental faculties are impaired to the detriment of the person’s operating skills i.e., under the influence, or with a prohibited alcohol concentration (BAC).
Pursuant to Ohio Revised Code 4511.19, you can be charged when operating any motorized vehicle, streetcar, trackless trolley, or even on a bicycle with a prohibited alcohol concentration (BAC) or while under the influence (OVI).
Additionally, pursuant to Ohio Revised Code 1547.11, boaters can be charged with boating under the influence (BUI) or being in physical control of the boat while under the influence. If you are a boater you understand that this poses some problems. If numerous people are on your boat drinking and assisting the captain in docking, pulling in the sails, anchoring will your passengers be charged with a BUI or physical control? The law continues to change and in seems to get tougher with each change. Moreover, the boat police are now allowed to use the portable breath testing instruments as evidence in Court although they are highly unreliable. Further, in September 2008, water craft related offenses are now determined to be prior offenses which enhance the severity of both OVI and BUI offenses.
So what is an OVI? We get numerous calls from people arrested for an OVI who say “I wasn’t drunk.” You don’t have to be “drunk” to get an OVI. OVI is essentially operating a vehicle while under the influence. The term “operate” means to cause or have caused movement of the vehicle, streetcar, or trackless trolley. “Under the influence” means that the defendant consumed some (alcohol) (drug of abuse) (combination of alcohol and a drug of abuse), whether mild or potent, in such a quantity, whether small or great, that it adversely affected and noticeably impaired the defendant’s actions, reaction, or mental processes under the circumstances then existing and deprived the defendant of that clearness of intellect and control of himself/herself which he/she would otherwise have possessed. The question is not how much (alcohol) (drug of abuse) (alcohol and a drug of abuse) would affect an ordinary person. The question is what effect did any (alcohol) (drug of abuse) (alcohol and a drug of abuse), consumed by the defendant, have on him/her at the time and place involved. If the consumption of (alcohol) (drug of abuse) (alcohol and a drug of abuse) so affected the nervous system, brain, or muscles of the defendant so as to impair, to a noticeable degree, his/her ability to operate the vehicle, then the defendant was under the influence. OJI 711.19.
If you end up going to trial in an OVI case and the issue is whether or not you were under the influence, the fact finder will make their decision after reviewing the evidence and the “under the influence” definition. You can even be charged with an OVI if your BAC was under the legal limit. For example, if you are 21 years old and you submitted to a breath test and the result was .07%, the officer can still charge you with an OVI. Thus, it’s not as simple as whether you think you were drunk.
In Ohio, the legal BAC limit for persons 21 and over is any of the following: >.08% for whole blood (by weight), or >.08 of 1 gram (by weight) per 200 liters of breath, or >.11 of a gram (by weight) per 100 milliliters of urine. For persons under 21 it is even less (e.g. .02% (by weight) for whole blood.) Additionally, the law provides greater penalties if the BAC reached the “High” per se levels.
An attorney evaluating your DUI/OVI case will want to determine why you were stopped or seized by the police. Why did the officer pull you over or stop you? There must be a proper reason to stop you. For example, you sped, weaved, did not turn head lights on, had a license plate light out, crashed etc…If the officer had a legitimate reason stop you, then the officer must also have probable cause to arrest you. Officers obtain probable cause by observing the surrounding circumstances. Do you have an odor of an alcoholic beverage, slurred speech, red blood shot glassy eyes, admit to consuming the infamous two drinks? If so, those indications may give the officer probable cause to arrest. If an officer thinks you have been drinking or using drugs while operating or being in physical control of the vehicle, you will probably be asked to perform field sobriety tests.
There are three National Highway Traffic Safety Administration standard field sobriety tests that are generally administered. You will want to obtain an attorney who is familiar with these tests and the proper manner in which they should be administered. The three tests are the Horizontal Gaze Nystagmus (HGN), Walk-And-Turn, and One-Leg-Stand test. If the officer does not properly administer the tests, your attorney may be able to obtain an order from the court suppressing one or more of the tests. The officer administers these tests in order to determine whether you are under the influence as stated above and to obtain probable cause to arrest you.
Once you are arrested you will likely be asked to submit to a chemical test to determine if you are under the influence or are operating with a concentration of alcohol or drugs above the legal limit. Pursuant to Ohio Revised Code 4511.191 any person who operates a vehicle or is in physical control of a vehicle shall be deemed to have given consent to submit to the chemical test. If you refuse, the officer should inform you that your license will be suspended for at least one year (more if you have previous refusals), and if you submit and test over the legal limit your license will also be suspended. Further, under some circumstances you can be charged with a separate crime of refusing to submit to the chemical test(s). Thus, it is important to seek legal counsel during this crucial time. Most officers will give you a chance to contact an attorney.
The accused and convicted impaired operator may face the immediate loss of driving privileges and licenses, vehicle impoundment, fines, rehabilitation & re-education classes, local jail or prison time, ignition interlock devices, and more. Thus, it is important to contact a DUI/OVI attorney in order to evaluate your case.
As you can see there are numerous issues that your attorney must evaluate in an OVI/DUI case. If you are charged with an impaired offense (or DUI, DWI, OVI, BUI drunk driving, etc.), you may preserve a defense by getting a DUI, OVI defense lawyer. The lawyer must realistically look at what happened and then a strategy can be made on the case’s strengths and weaknesses.