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OVI/DUI Defenses and Possible Reductions

So, you want to fight your OVI? Your lawyer can look at every step of the case and determine if the prosecutor will have trouble proving the elements of the case against you. Main areas of attack in an OVI case are whether there was probable cause to stop you in the first place. Did you exhibit any signs of impairment that can’t be reasonably explained by other things like red/water eyes from allergies or crying? Did the officer instruct, demonstrate, and make accurate and proper observations of indicators of impairment according to his training?, Was there probable cause for the arrest? Were Miranda Warnings given properly? Was your blood, breath, or urine testing devise Ohio Department of Health approved? And did it yield an accurate result? Were your results taken more than 3 hours since the time of operation? Do the police or lab have 3 years of records? Were you even the driver? Do you have a medical condition that explains your driving and condition like diabetic emergency, neurological disorder, lazy eye, broken bones, surgery, injuries, sickness, balance problems, speech disorders, etc.?

Breath Test Defense

DUI or OVI as it is called in Ohio since 2001 breath test defenses are complex, but not complicated. Some will allow you to use a loophole so to speak. Ohio law requires that the test be done in substantial compliance with the Ohio Dept. of Health regulations. Failure to meet these regulations will result in the test being subject to suppression. Your lawyer will have 35 days from the arraignment to file an objection to the evidence being used at trial based on that defect. There will be a hearing where the state will attempt to show the court that they complied with the regulations. Failure to object to the evidence will waive the issue and you will be stuck with the result.

Other DUI or OVI defenses like reverse extrapolation, rising blood alcohol level, diabetic ketoacidosis, etc. will require medical records or an expert. Experts in DUI cases can cost upwards of several thousand dollars. You will want to talk to your lawyer about the risks and rewards of using experts based on the facts of your case. Each DUI case is unique and needs an experienced OVI lawyer that will spend the time discovering what defenses are available to you and the facts of your case.

The first step in any DUI case is fact finding. The facts of a DUI case are contained in the police report/officer’s statement of facts, field sobriety test/intoxication report, police car video, police station video, videos from other cars at the scene other than the arresting officer. There are many additional records involved with a chemical test.

Sometimes the best results come from fighting cases that the prosecutor will agree to reduce. When you switch gears from negotiation to fighting the pressure is really on the state to prove its case. This will often reveal defects not apparent on the paperwork.

Reasonable Suspicion for a Traffic Stop

Most OVI cases have a traffic offense listed on the ticket as the reason for the stop. You do not have to be cited for the reason the officer pulled you over. The Constitution prevents officers from pulling you over for just a hunch. They also cannot pull you over for looking lost. They cannot stop you for going under the speed limit because they think you have something to hide unless there is a minimum speed posted or you are impeding traffic.

They will also need reasonable suspicion to ask you to perform field sobriety tests. This is because they are only allowed to detain you for a reasonable amount of time to issue a traffic citation. By extending the time allowed they will require an additional expectation that another crime is being committed. This can be an odor of marijuana coming from the car or an odor of alcohol from the driver or car.

They also look at where you are coming from. They want to know if you came from a place that serves alcohol. Unusual actions can be an indication of intoxication like not rolling the window down, not pulling over right away, rooting around inside the car, or nervousness/shaking/sweating.

Reduced Charges

If you entered a plea, the prosecutor will likely have offered you a reduction. A reduction is usually a reckless driving or physical control. Reckless driving is usually a misdemeanor of the 4th degree when offered as a reduction from DUI. It carries a 6 month to 3 year suspension, up to 30 days in jail, and up to a $250 fine. It also carries 4 points on your license.

Another option for a plea will be physical control. This is not a moving violation and carries 0 points. However, it is an alcohol violation. It is a misdemeanor of the 1st degree punishable by up to $1000 fine, 180 days in jail, and up to a 1 year license suspension.

Portrait of Robert F. Healey, Jr., a member of Minnillo Law Group Co., LPA

Robert F. Healey, Jr.

Attorney – Of Counsel
Minnillo Law Group Co., LPA

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