DUI, OVI & OMVI
You have probably heard persons refer to the offense of “drunk driving” as OVI, DUI, OMVI, and old fashioned drunk driving. In Ohio these terms fall under the umbrella of R.C. 4511.19 – Operating vehicle under the influence of alcohol or drugs – OVI. The title is significant because unlike the other acronyms listed above “operating under the influence” is all that matters under Ohio law. DUI (driving under the influence) fails to encapsulate those cases in which a person causes movement of a vehicle other than by driving, such as by pushing a vehicle, which conceivably would be sufficient to charge OVI under Ohio law. OMVI (operating a motor vehicle while under the influence) fails to include situations in which the person operated non-motorized vehicles while under the influence of alcohol or drugs. Most often this occurs when someone rides a bicycle after drinking. Finally, “drunk driving” misses the mark as one does not need to be drunk in order to violate Ohio law.
That leads us to the next point, even the term “OVI” fails in at least one regard, you see under current law a person can be charged even if they are not under the influence and have no discernible diminished capacity. These cases are often pursued under Ohio’s OVI per se statutes. OVI per se occurs when a person provides a sample of their blood, breath, or urine and the sample reveals a chemical level in excess of certain levels. Most commonly breath samples are requested as alcohol is the most common chemical suspected in OVI cases and breath testing is the most accessible and cost effective manner of testing for chemical level in relation to drinking. Currently a person can be convicted of OVI when providing a breath sample which indicates a BAC (blood alcohol content) level exceeding (.08) and increased penalties become mandatory at levels exceeding (.17). A number of reasons could account for a person not exhibiting discernibly diminished capacity and yet have chemical tests exceeding the per se levels, the most common reason may be tolerance. OVI per se cases are also quite common do to drugs. Drugs tend to build up in one’s system over time and OVI per se cases based on drug levels (even properly prescribed medications) often occur days or weeks after last use and certainly after any influential affects have subsided. Marijuana tends to remain in a user’s system for an extremely long time, especially after regular prolonged use, and could lead to a OVI per se charge thirty days or more after final use.
Persons are cited with OVI after being pulled over for one of two legitimate reasons: committing a traffic violation or suspicion of OVI. Law enforcement cannot stop a vehicle in Ohio unless they have probable cause to believe that a crime/traffic violation has occurred or because the officer has a reasonable suspicion that a crime/traffic violation has/is occurring. Under either of these two stops the OVI investigation starts with the officer observing the vehicle in motion (if the officer initiates the stop as opposed to responding to an accident, etc.) and continues when the officer comes into personal contact with the operator.
In the first instance the officer may observe speeding, failure to signal, a broken light, failure to abide by a traffic signal, or other traffic violation. Based on the officer’s observation a stop is initiated and either the traffic violation itself (such as lane violation or “swerving”) leads the officer to further investigate for OVI or behavior following the traffic violation leads to the OVI investigation. Either way the officer will almost always need factors beyond a single traffic violation to substantiate an OVI arrest. Most often these additional factors include the officer detecting an odor of alcohol, bloodshot eyes, slurred speech, an admission to drinking, trouble pulling over, or inability to provide direct answers to the officer’s initial questioning. Other factors appear less frequently and could be completely unique to the individual case. In these cases the officer must obtain these additional behaviors prior to expanding the investigation beyond that of the original stop.
The second reason law enforcement can conduct an OVI stop because the officer has a reasonable suspicion that a driver is operating a vehicle while under the influence of drugs or alcohol. In this context of OVI stops this is most often seen in instances of repetitive lane violations (even swerving within your lane), driving too slowly, drifting back and forth, accidents, etc. In these instances, the officer may have a reasonable suspicion of OVI prior to actually initiating the stop or coming into contact with the driver. Although the officer almost always has additional factors attributable to OVI prior to asking the driver to exit the vehicle, he need not.
Field Sobriety Tests:
The National Highway Traffic Safety Administration prescribes certain methodologies which are employed by nearly all law enforcement across the country. In Ohio officers are trained and employ three main Field Sobriety Tests (FST’s), the Horizontal Gaze Nystagmus (HGN), the Walk-and-Turn, and the One Leg Stand.
The HGN is the most misunderstood and misemployed of the three FST’s. The officer has the suspect stand upright, or in some cases sit, while maintaining a still head while following a stimulus (such as a fingertip or pen) with their eyes only. The officer then moves the pen from side to side (horizontally) while looking for minute jerking of the eyeballs. The officer looks for these movements in three separate contexts: 1.) lack of smooth pursuit; 2.)onset of nystagmus prior to the eye reaching an angle of 45 degrees; and 3.) distinct and sustained nystagmus at maximum deviation. The jerking, referred to as nystagmus, is often described as a marble rolling across sandpaper as compared to rolling across glass. The officer will almost invariably claim to have observed some nystagmus while looking for six clues (the three listed above in each of the suspect’s two eyes). These tests require an experienced lawyer to challenge as the clues the officer will have allegedly observed cannot be seen on video. Therefore a successful challenge to these tests will be based the attorney’s ability to undermine the officer’s training and the execution of the test itself.
The Walk-and-Turn test consists of the suspect taking nine heel-to-toe steps down a real or imaginary line and performing a turn before taking nine heel-to -toe steps back. The officer is looking for eight possible clues: 1.) moving feet to keep balance while listening to instructions; 2.) starting before instructions are completed; 3.) stopping while walking; 4.) not touching heel to toe; 5.) raising arms six inches or more to keep balance; 6.)stepping off the line; 7.) turning incorrectly; and 8.) incorrect number of steps. Often these tests and the alleged clues can be seen on video and the suspect’s performance can be independently gauged to challenge the officer’s conclusions.
The One Leg Stand consists of the suspect standing in a rigid, straight leg stance while lifting a foot six inches off the ground. The suspect is to stare at their toe and count from “one thousand one” to “one thousand thirty.” The officer looks for clues as to whether the suspect: 1.) swaying while balancing; 2.) raising arm six inches or more while performing the test; 3.) putting a foot down; and 4.) hopping. Like the HGN and Walk-and-Turn tests, the One Leg Stand can often be successfully challenged by an experienced attorney.
Some officers will employ other tests such as asking the suspect to recite certain portions of the alphabet without signing, and counting backwards between certain numbers, among others. Most agencies stick to the core three NHTSA FST’s. However, a solid defense requires familiarity with various other tests that are employed by some officers and agencies.
Breathlyzers and Chemical Testing:
Law enforcement and courts have been using chemical tests for years to bolster charges and achieve convictions in OVI matters. The limits have been scaled back through the year due lobbyist and other pressures. The current OVI per se limits for individuals over 21 is .08 (.17 for high test), and .02 for those under 21. It is impossible to predict the exact alcohol consumption one would need to achieve these levels, however it is possible that one would not feel “drunk” and yet exceed these per se benchmarks.
Law enforcement agencies in Ohio have increasingly used urine and drug tests to prosecute OVI cases. Most often these are used in cases where drug use is suspected either because of indications the officer claims to have observed through the arrest process or because a subsequent breath test seems disproportionally low in relation to the degree of impairment the officer has observed. In the latter case the urine or blood test usually follows a prior breath test.
Additionally, judges throughout the state have begun to more readily grant search warrants for blood draws. More often than not forced blood draws will occur in cases where the suspect is unconscious, a repeat offender, or in other unique circumstances.
Many people feel that once they have tested in excess of the per se levels there is nothing a lawyer can do to fight the charge or minimize penalties. This simply is not true. There are a number of procedural and technical aspects to testing that can be successfully challenged by an experienced attorney. Furthermore, charges and/or penalties can often be negotiated favorably for a client by an attorney who knows how to approach the prosecuting attorney regarding your particular case.
Evidence and procedures can be challenged through the filing of a Motion to Suppress Evidence. Frequently these types of motions are filed in OVI cases to challenge the stop itself, the subsequent investigation including field sobriety tests, as well the chemical testing. The purpose of filing these motions is to obtain a ruling from the court that certain, or in some cases all of the evidence, cannot be used against the defendant at trial.
At the hearing itself the arresting and testing officer (if different) will be called to the witness stand and placed under oath. It is then incumbent upon the State to establish facts, through testimony, to show that the officer did not violate the defendant’s Constitutional rights or otherwise did not fail to comply with applicable laws and regulations. The defense then has the opportunity to cross examine the state’s witnesses regarding the facts of the case.
Rarely does the defense call witnesses at suppression hearings other than in the case of experts hired to testify as to specific matters. However, these determinations are made on a case to case basis.
Regardless of the outcome of suppression motions, the defense gains valuable insight into the case by having the opportunity to examine the state’s witnesses prior to trial. In this way the officer’s expertise, presentation on the stand, and personality can be considered on how he or she will eventually play to a jury.
While the vast majority of all criminal matters, including OVI, are typically resolved through plea negotiations or dismissal, some cases make it to trial. You must discuss the pros and cons of trying your case with an experienced criminal trial attorney who can advise you of the considerations in your particular matter. To do so click here to contact us or call 614-562-0945 to speak with Michael Cox for a free in person case evaluation.