OHIO DUI  &  DWI  LAW

  This page summarizes the basic of Ohio law on driving under the influence (OVI) and over the legal limit (BAC).
 

 What is driving "under the influence" or "over the legal limit"?

"the defendant consumed some alcohol or drug of abuse, whether mild or potent, in such a quantity, whether small or great, that it adversely affected and appreciably impaired the defendant's actions, reactions, or mental processes under the circumstances then existing and deprived him of that clearness of intellect and control of himself which he would otherwise have possessed."  

Only lawyers and judges could come up with such a long and convoluted definition. However, this is generally the instruction given to juries when they deliberate in a DUI/DWI trial.

In Ohio, even if you are not "under the influence," you may still be guilty of a alcohol related crime if you are "over the legal limit." Driving over the legal limit is not the same as driving under the influence" (although the two may certainly occur at the same time and one may be charged and convicted of both). As you are probably aware, a person can be over the legal limit without that level of alcohol impairing the person's ability to drive (or do other things) appropriately. Conversely, a person can be under the legal limit and still have that level of alcohol impair that person's ability to drive (or do other things). In Ohio, the legal limit for persons 21 and over is any of the following:

• .08% (by weight) for blood, or

• over .08 of 1 gram (by weight) per 200 liters of for breath, or

• .14 of a gram (by weight) per 100 milliliters of urine.

It is possible to be charged with both being under the influence and driving over the legal limit, and it is possible to be convicted of both. However, if one is convicted of both (for the same incident), then he can only be sentenced for one. Most times a person is arrested for a DWI offense, they are charged with both. This way the police and the prosecution have two shots at a conviction.

Recent changes in Ohio law now make it a crime (very much like OVI/BAC) to drive a vehicle with a specific level of certain drugs in your system.   This law is rather new, and is still being tested in the Courts.   Safe to say, even if you claim not to be "under the influence"of the drug in question, you may still be guilty of a crime of the police can detect an amount of htis drug in your blood.  Stay tuned for details.  

WHAT CONSTITUTES "DRIVING" OR "OPERATING" A MOTOR VEHICLE?

WHAT ISSUES DOES A LAWYER HELP YOU WITH IF YOU HAVE BEEN ARRESTED AND CHARGED WITH A DUI OFFENSE?

• The legality of the stop. Sometimes it is illegal for a police officer to pull a person over. A police officer must have what the law calls "reasonable suspicion" before that officer may pull over an automobile. An effective lawyer knows how to discover whether the police officer had the legal authority to pull a person over.
• The legality of administering a "field sobriety test." Before anyone can be arrested by a police officer for a DUI offense, the office must generally conduct what is called a field sobriety test. These tests are usually coordination/comprehension tests designed to see if the driver has certain minimal coordination and comprehension. These tests include the finger to nose test, walking in a straight line, counting backwards or reciting the alphabet. The officer can also conduct what is called a horizontal gaze test. The officer will ask the driver to follow his finger to see when the driver's eyeballs begin to flutter. Before all of these tests are administered, the officer must have some "reasonable suspicion" that the driver has been drinking. This "reasonable suspicion" can be gained from a number of things, including watching the driving patterns of the driver (i.e. before the driver was pulled over), glassy eyes and the odor of alcohol around the driver. This "reasonable suspicion" must, for the most part, be separate from the "reasonable suspicion" needed to pull the automobile over in the first place. An effective lawyer knows how to determine whether the officer had this "reasonable suspicion," or whether the officer just decided to administer the field sobriety tests for other reasons.
• The method of administering a "field sobriety test." Once the officer has "reasonable suspicion" that the driver is intoxicated (and thus has grounds to administer the field sobriety test), the officer must still administer that test in the right way. An effective lawyer knows how to determine whether those tests were conducted in the proper way.
• The DUI machine. In the event the driver fails the field sobriety tests, the officer is then free to arrest the driver for DUI, and then escort the driver to the police station to submit to a breath or urine analysis. Most police stations have a machine commonly referred to as a "breathalyzer," which is a machine which can, for the most part, very effectively measure the amount of alcohol in a person's breath. Under Ohio law, any person who has been issued an Ohio driver's license has, as a condition to the issuance of that license, unconditionally consented, anytime upon request, to submission to a test of his or her breath, blood or urine for the presence of alcohol. However, there are some rigorous procedures that these machines must go through in order for results from these machines to be admitted at trial. These procedures include regular "calibration" of, and placement of, these machines. An effective lawyer knows how these machines are to be used and how they are to be maintained.
• Past DUI offenses. The more times one is arrested for DUI offenses, the more severe the penalties (as further described below). An effective lawyer knows what prior offenses the court can take into consideration in passing sentence.
• Getting an automobile out of impoundment. If a driver is arrested in a DUI offense, his automobile can be seized by the arresting officer. Further, this automobile can eventually be forfeited to the State of Ohio if the driver has had enough prior DUI convictions. Sometimes, however, the automobile is owned by another person (i.e. other than the driver). An effective lawyer can see that an automobile is returned to the proper owners as soon as possible.
• Getting the driver's license back. A driver's license can be suspended for specified minimum periods of time once a driver is convicted of a DUI. However, once the license suspension period is over, the Bureau of Motor Vehicles will not simply send the license back to the driver. The driver must know when to request the license back, where to request it and how much it will cost (or can cost). Many drivers think they can simply start driving once the suspension period is over. Not true. There is a specific "reinstatement" process, with specific procedures and specific costs. An effective lawyer knows when and how to get the license back.

PENALTIES FOR DUI OFFENSES

In Ohio, the following is a summary of the minimum penalties (and maximum) one can face if convicted of a DUI offense:
NOTE:  THESE PENALTIES ARE CONSTANTLY CHANGED BY THE OHIO GENERAL ASSEMBLY ALL OF THE TIME, SO CHECK WITH AN ATTORNEY FOR THE MOST RECENT PENALTIES.

OFFENSEw/in 6yrs	Jail	Fine	Driving Suspension	Time w/o Occ.Priv.	Plate Impoundment	Vehicle Immobilization	Vehicle Forfeiture	Immediate Vehicle Seizure
First	3 days to 180 days	$200-$1000	6 months to 3 years	15 days	no, but exceptions	no	no	no
Second	10 days to 180 days	$300-$1500	1 year to 5 years	30 days	90 days	90 days	If not cleared within 27 days	yes
Third	30 days to 1 year	$500-$2500	2 years to 10 years	1 year (and then only with interlock)	180 days	180 days	If not cleared within 27 days	yes
Fourth (felony)	60 days to 18 months plus EMHA* 60 days to 12 months	$750-10,000	3 years to life	3 years (and then only with interlock)	NA	NA	yes	yes

  

EMHA= "Electronically Monitored Home Arrest"
 

It must be stressed that there a many exceptions and possible variations to these penalties, depending on the municipal and common pleas judge who interprets the DUI law and passes the sentence. For instance, some judge have "policies" on how first and second offenders are treated, and those policies may differ significantly from the policies of other judges. This is another instance where a lawyer with sufficient experience with the court/judge in question can be of significant help.   Further, all DUI/DWI/OMVI convictions are suppose to carry six (6) points on your driver's license.   So just 2 convictions alone can lead to a twelve (12) point suspension of your driver's license, which trigger a whole set of other legal proceedings in order to get driving privileges for work.   Further, any third or more conviction requires the Court to order mandatory "treatment" for the defendant.  Further still, the Ohio Bureau of Motor Vehicles will charge a $405.00 "reinstatement fee" in order to get your license back after your court-ordered suspension is over.  Further still, the foregoing penalties literally double if the blood alcohol (by breath) reading exceeds .17.

  Also:  Check the Administrative License Suspension ("ALS") penalties for testing (at the time of arrest) over .08 or refusing             the test, as well as the penalties for driving with a license that has been suspended pursant to a DUI arrest:
  Go to:  Ohio BMV ALS penalties and  DUS  penalties.

OTHER TRAFFIC RELATED AND DUI QUESTIONS.

If you have other traffic  and/or DUI related questions, try  getting some of your answers from the Cleveland Law Library's web site by clicking on this link:  CLLA.  
However, always consult with a lawyer before you make any important decision about your DUI or traffic case.

WHAT TO DO IF ARRESTED

Please feel free to email us at: O'Shea & Associates Co., L.P.A.

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