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Frequently Asked Questions Regarding an OVI/DUI Charge

While no list of questions online could be complete, we have compiled a brief list of some of the more common questions people have about OVI and DUI charges:

Absolutely! If you are charged with a traffic violation, had the police looking for you for questioning, or expect charges could be filed, call an experienced and competent lawyer. Lawyers can explain the charges and potential penalties.

Lawyers will tell you not to talk about your case. Even if you are innocent. We know you want to tell your story. There will be a time for that. Be aware that anything you say can be used against you. Speaking with a lawyer will ensure the conversation is privileged.

Lawyers can help inform you about what to expect at each court date, evaluate evidence, and help you prepare a defense. Being charged with a crime can have life-altering consequences. Lawyers charge a lot of money to do what they do. They are so important that even if you cannot afford a lawyer, you will be appointed a public defender to represent you.

If you are being questioned by the police you have the right to remain silent and the right to have a lawyer. You should invoke both rights, refuse any field sobriety or chemical tests until you speak to a lawyer.

Your lawyer will know the right mitigation to prepare to ensure the best possible chances of avoiding a tougher sentence if you are convicted. They can also help you if you have a probation violation after sentencing.

Lawyers will have the right motions to file to preserve the evidence. They also have motions to reduce the bond and to exclude evidence and testimony. Specific motions need to be filed to require the prosecution to produce the evidence. The judge, prosecutor, and clerk will not be able to give you legal advice or help you. They must refer you to a public defender or privately retained lawyer for assistance.

Criminal defense lawyers can get your case called first so that you do not have to wait around all day for your case to get called. Generally, this will get you in and out of court more efficiently than just going to court on your own.

The right criminal defense lawyer will be someone you can talk to. The best criminal defense lawyers will give you their cell phone number and tell you to call them if you have questions. They can really set your mind at ease.

Knowledge and experience are worth their weight in gold. The best lawyers will likely have already handled a case like yours many times and be able to best help you out. Great lawyers don’t take no for an answer and know when to keep asking for a better deal for you. You don’t always have to take the first deal offered. Sometimes things can get incredibly better.

Most police in Ohio will not tow your vehicle on a first offense without a crash. They will let you know if they must. If the police tow your car after arrest for OVI or DUI they can impound or hold it until at least the first court date. A second or subsequent OVI arrest will cause your vehicle to be towed. Your copy of the suspension paper (ALS- yellow or white 8 ½” x 11”) in the bottom of the A section will indicate where it was towed or stored. Otherwise, the police will ask your permission to park it legally where it can be obtained by a licensed driver later. On a first offense if the vehicle is towed you should be able to get it out without a court order if you pay the towing and storage fees. This can cost up to $3,000 if you leave a vehicle in storage for 90 days. Other judges will let you get the vehicle out by posting a bond of $500.

If you fail to tender your car for immobilization after conviction when ordered by the court and you get caught driving it, the police can seize the car and it is subject to forfeiture to the state! Most police officers will not fill out the proper paperwork and fail to comply with the notice requirements of vehicle impoundment. Your lawyer will be able to object to this in some cases the judge will not require the 90 days immobilization for second offenders.

NOTE: DO NOT GET A STATE ID TO GET YOUR CAR OUT! Most tow companies will ask for proof of ownership like the registration or title and proof of identification or photo ID like a passport before releasing the vehicle. Some tow companies will advise people to go to the BMV to get a state ID since the police will take your license if you are suspended. In Ohio, you can only have a license or state ID. When you are given the suspension paper after testing over the limit or refusing the test, the police take your license and your driving privileges are suspended. If you test over the limit after a Physical Control arrest you should not be suspended. If you are arrested for an OVI or Physical Control and test under the prohibited limit for blood, breath, or urine you will not be suspended. Make sure your address is always current with the BMV. Once they get notice of any suspension, they will mail you a notice to the address they have on file. Once you are suspended in the system you can go to the BMV and get a “Temporary” State ID Card that will not cancel your license, and which can be used with the limited driving privileges if granted from the judge.

NOTE: DRIVING IS A PRIVILEGE NOT A RIGHT.

NOTE: In any case, you will be given the 8 1/2” x 11” BMV form number 2255 titled “Report of the Law Enforcement Officer / Notice of Possible Administrative License Suspension or CDL Disqualification” which is yellow or white. The box on the left side in the “B” section has a check box for placed under administrative suspension. This controls what the Ohio BMV does to your license as they will be sent a copy of this form with your license if seized. We shorten administrative license suspension to ALS.

Ohio Code Section 4511.194 titled, “Having physical control of vehicle while under the influence” defines this. Most people other than those charged or OVI lawyers, prosecutors, and judges in Ohio have never heard of this. It basically means that you are in the driver’s seat with possession of the ignition key while you are under the influence of drugs, alcohol, or a combination of the two.

You can also be placed under suspension after an arrest for physical control. Physical control is where you are alleged to be under the influence and in possession of the car keys and in the car. This is like sleeping it off in the car with the keys in the ignition and you are in the driver’s seat. If you refuse to take the test the officer will suspend your license. If you take the test and test over the limit, there is no suspension. This is different than what happens if you are arrested for OVI.

There is no legal limit in Ohio. Ohio has prohibited concentrations of certain drugs or alcohol which can be tested in the blood, breath, or urine. Alcohol has a low and high tier limit which determines what penalties the judge will apply if you are found guilty. You can still be charged with driving under the influence of drugs or alcohol even if you test under the legal limit in Ohio.

Over 21 years old

AlcoholBreath Test
Low Tier≥ 0.08 grams/210 L
High Tier≥ 0.170 grams/210 L

Under 21 years old

AlcoholBreath Test
 ≥ 0.02 grams/210 L
If you are under 21 and test over 0.08 grams/210 L of breath in Ohio, the police will often cite you with being over the limit just like if you were over 21. This might be less than one beer in most cases. This is very different from being under the influence. In fact, most of the field sobriety tests will not work in this case because they are only used to determine when a person has a chance of being over the limit of 0.08 BrAC.However, the standard to arrest for this offense is much lower than for someone over 21 years old. Usually finding out that someone is under 21, a little bad driving, an odor of alcohol and admission of drinking is enough to support an arrest. The penalties are much higher for underage OVI offense.The CDC defines a standard drink as being equal to 14.0 grams (0.6 ounces) of pure alcohol. Generally, this amount of pure alcohol is found in:
  • 12 ounces of beer (5% alcohol content).
  • 8 ounces of malt liquor (7% alcohol content).
  • 5 ounces of wine (12% alcohol content).
  • 1.5 ounces or a “shot” of 80-proof (40% alcohol content) distilled spirits or liquor (e.g., gin, rum, vodka, whiskey).

Figure one beer will add about 0.02 grams of alcohol to an average person’s body. It takes about an hour for the average person to get rid of 0.015 grams of alcohol. Alcohol concentration in the body is also changed by whether the person has eaten lately, their gender, and weight. It does not have anything to do with your tolerance or how you feel.

Prohibited Concentrations of Drugs in Urine

Drug/ItemConcentration
Amphetamine≥ 500 ng
Cocaine≥ 150 ng
Cocaine Metabolite≥ 150 ng
Heroin≥ 2000 ng
Heroin Metabolite (6-monoacetyl morphine)≥ 10 ng
L.S.D.≥ 25 ng
Marihuana≥ 10 ng
Marihuana Metabolite and under the influence≥ 15 ng
Marihuana Metabolite≥ 35 ng
Methamphetamine≥ 500 ng
Phencyclidine≥ 25 ng
SalviaTBD by Ohio St. Board of Pharmacy
When you are arrested for an OVI in Ohio the police will ask you to submit to a blood, breath, or urine test. If you refuse or test over the legal limit you will be suspended administratively. This is referred to as an ALS.The old law used to tell the BMV to wait for a conviction of the DUI before acting. Now the law has changed, and the ALS is the trigger not the conviction. The ALS will cause a one-year out of service disqualification of your CDL on a first offense. A second ALS will cause a lifetime out of service disqualification.The Court cannot grant driving privileges to drive a commercial vehicle. They can only grant privileges to drive a passenger vehicle. Another complication is that you might have a judge that grants driving privileges for your personal non-commercial vehicle with the restriction of an ignition interlock device.Before issuing you the letter to drive, the clerk might require you to take a paper to the BMV and obtain a special Interlock License. This will cancel the CDL endorsements on your license. When your suspension is over you will have to reapply for a CDL. The law also treats people differently if they are in a commercial vehicle when they get arrested. The legal limit is usually .08 for someone over 21. In a commercial vehicle it is .04.

Ohio’s CDL Disqualification is explained in ORC Section 4506.16. Hopefully, you have a lawyer on board as soon as something happens. If not, get one a.s.a.p. as time may bar you from any recourse through the appeal process. A hearing may be requested within 30 days of the mailing of the notice of disqualification. If the hearing is granted the disqualification will be stayed pending the outcome.

First Offense Length of Disqualification

ORCDescriptionDisqualification Length
4506.16(D)5Two serious traffic violations within a three-year period60 days
4506.16(D)6Three serious traffic violations within a three-year period120 days
4506.15(A)2BAC of .04% or more1 year
4506.15(A)5Under influence of controlled substance1 year
4506.15(A)6Using the commercial vehicle in the commission of a felony1 year
4506.15(A)7Refusing to submit to a blood, breath or urine test1 year

Second Offense Length of Disqualification

ORCDescriptionDisqualification Length
4506.15(A)2BAC of .04% or moreLife
4506.15(A)5Under influence of controlled substanceLife
4506.15(D)Leaving the scene of a traffic crashLife
4506.15(E)Using the commercial vehicle in the commission of a felonyLife
4506.15(F)Refusing to submit to a blood, breath or urine testLife
4506.16(B)4First time commission of a felony with a controlled substanceLife
4506.15(A)7First Violation of Out-of-Service90 days
4506.16(A)2Second Violation of Out-of-Service1 year
4506.16(A)3Third Violation of Out-of-Service3 years

Violation of Out-of-Service (Transporting Hazardous Materials)

ORCDescriptionDisqualification Length
4506.16(B)1First Violation of Out-of-Service180 days
4506.16(B)2Second Violation of Out-of-Service3 years
NOTE: Under Ohio’s commercial driver’s license law, any person who holds a CDL shall be deemed to have consented to such testing as is required of him/her by any state or jurisdiction. If any level of alcohol is detected, law enforcement can place a commercial driver out-of-service for 24 hours. It is illegal to operate a commercial vehicle with any alcohol in your system.

Police will conduct standardized field sobriety tests or SFSTs on DUI suspects. There are three SFSTs called Horizontal Gaze Nystagmus (HGN), Walk and Turn (WNT), and One Leg Stand (OLS).

HGN is a test for involuntary movement of eyes as they gaze to the side. It requires the officer to ask if you have any eye problems. Then they will tell you to look at a pen or finger in front of your face. They look to see if your pupils are an equal size. Unequal pupils are evidence of eye or head injury and invalidate the test. Then they will move the finger or pen around to see if your eyes can track the stimulus equally. This is to rule out further eye problems that will interfere with the test. The officer should also face you away from traffic, moving objects, and flashing lights.

The HGN test looks for 3 clues in each eye for a total of 6 clues. The clues are for nystagmus while your eyes move horizontally, nystagmus while looking all the way to the side, and nystagmus before 45 degrees as your eyes look to the side. NHTSA publishes that 4 out of 6 possible clues can indicate that someone will test over the limit.

The WNT test has 8 clues. NHTSA says that any 2 of the 8 clues is an indication that someone will test over the limit. The test is basically walking heel to toe for 9 steps, turning as directed, and 9 heel toe steps back.

The OLS test has 4 clues. NHTSA says that any 2 or more clues can indicate that someone will test over the limit. The test is performed with one leg raised off the ground 6 inches. The leg is held with the leg straight for 30 seconds.

These tests are highly regulated by NHTSA. Failure of the officer to give proper instructions or the making of inaccurate observations can cause the tests to be excluded.

Non-SFSTs

Police will often use non-standardized tests. These tests are subject to suppression. This means that the law generally will prevent them from being used by the prosecutor against you at trial. However, it should be noted that the officer will be able to talk about what was observed even if he cannot the words “test” or what it means to “fail” the test. Most common of these types of tests are counting, alphabet, finger to nose, and touching thumb to fingers while counting.

Counting tests can be counting up or down. They are usually done as a supplement when a suspect has some problem performing the SFSTs. NHTSA does spell out some regulations about how to perform the test. They recommend that the number start with an unusual number like 68 and stop with counting down to another unusual number like 53. They look to see if you can count backwards, miss numbers, add numbers, and start and stop at the right place.

Alphabet tests are usually the same as counting. They are used as a supplement when someone cannot do the regular field tests. Some officers use the while alphabet and ask that you not sing it. NHTSA will instruct that the tests start at a weird letter and stop at a weird letter such as starting at E and going to P. Officers want to see if the person will skip or add letters while simultaneously checking that they remember to start and stop at the right place.

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Robert F. Healey, Jr.

Attorney – Of Counsel
Minnillo Law Group Co., LPA

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