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The OVI/DUI Court Process

Arraignment

Arraignment is the first court date listed on your ticket. This is an important date as you have certain rights. Most notably this is the first time you can appeal your BMV suspension and ask a court for an order to get your car out if impounded. The suspension can also be appealed up to 30 days from the Arraignment. Ideally you will want to hire an OVI lawyer at least 48 hours before your arraignment. Your lawyer will be able to analyze your ticket and Ohio BMV Administrative License Suspension or ALS. You will be given advice about whether you need to appear at the arraignment or if your lawyer is able to waive your presence and enter a not guilty plea on your behalf. Issues that you will need to appear for are addressing the release of an impounded car, driving privileges, and defects in the administrative license suspension or ticket. A not guilty plea will allow your lawyer to assess the evidence against you, and determine your possible defenses. A not guilty plea can be changed later if a plea bargain is reached and accepted. A not guilty plea will not be held against you by the prosecutor or judge on your case. It is a standard procedure.

Some judges will stay an administrative license suspension at arraignment if your lawyer is able to articulate a defect in the paperwork. This means that you will not have to wait for privileges. Usually there is a waiting period on privileges of 15 days from the ticket date on a first in time test over the limit and 30 days for a refusal. This is often referred to as the hard suspension time.

If your lawyer waives your presence, it will not prejudice your case. It is important to get a lawyer involved so that you are protected right away. If your car is impounded for a DUI or OVI arrest, the court can keep it until the case is over before releasing it if you fail to appear and request the release of the car at the arraignment. This is significant because the towing company can charge about $3000 to keep it for 90 days.

Most lawyers will not even appear at the arraignment if they have reviewed the facts of your case and determined that you will not need to be there. They can often notify the court by fax or in writing that you are now represented by a lawyer and waive your presence at the first court date. They will pick a pretrial or plea or trial setting date depending on what the court uses to refer to these preliminary dates. These will not have witnesses subpoenaed or have testimony taken. This will often be when your lawyer can ask for privileges and follow up on requests for evidence.

Pretrial

Your next court date after the arraignment is called a pretrial or plea/trial setting. This is an informal setting where no witnesses or police are generally subpoenaed. It is for housekeeping purposes like: seeing if the defendant will get a public defender or hire private counsel, getting cars out of impound, asking for or modifying driving privileges, getting evidence, buying time for your lawyer to review the evidence, getting a status update letter from your insurance company showing damage to property from an accident has been taken care of, completing a weekend driver intervention program in Ohio called DIP/WIP/RDIP/AIP, having an alcohol, drug, or mental health assessment, and participating in treatment or attending AA/NA meetings. These can all be used to mitigate your case.

Negotiations

Your lawyer will give you advise about mitigation in your case. These are things you can do to position yourself in the best place possible to ask the judge for leniency if you are not going to contest the allegations. Examples are: current resume, auto insurance proof, claims update on payment for damages from an accident, verification of full time employment, letters of recommendation, awards/accolades, good grades in school, volunteer work, assessments and progress reports from treatment, AA/NA meetings, etc.

Your lawyer must first convince the prosecutor that you are a candidate for a reduction. Then your lawyer must convince the judge to accept any plea offers to reduce the charges or severity of penalties. This will rely in part on the facts of your case, your history, what you do after the accident to ensure this behavior will not be repeated, the victims if any, the opinion of the arresting officer, your test results, and the reputation of your lawyer with the police, court, and prosecutor.

Common plea bargains in Ohio on an OVI case are reductions in penalties by treating a second or third OVI as a first offense which lowers the minimum penalties the court must impost.

Note: The court can still give you up to the maximum, so you need a lawyer familiar with the judge to be able to tell you if the plea is a good deal or not!

Two common plea offers to reduce an OVI are Reckless Driving and Physical Control. Prosecutors often call reckless driving when it is reduced from an OVI “Wet Reckless.” This is where the defendant pleas to a second offense in time reckless driving violation making it a misdemeanor 4th degree so the judge can impose suspended jail time and a 3 day weekend driver intervention program, up to a $250 fine, and up to 5 years of probation. It is only 4 points compared to 6 for an OVI. Physical Control is a misdemeanor 1st degree punishable by up to 180 days in jail, $1000 fine, and 5 years of probation, but it is interesting because it is not a moving violation, so it carries no points and has no mandatory penalties.

Note: Some background check companies outside Ohio will see the physical control conviction while under the influence as a DUI or OVI. Some states do not distinguish between the two.

Motions

This is where the rubber meets the road. You and your lawyer at this point have decided that you are not guilty, are not being offered the plea bargain that is best for your situation, the collateral consequences are severe, or that the facts indicate you should fight the case.

Your lawyer will have reviewed the evidence to determine what challenges to bring. Constitutional violations seeking to exclude testimony or physical evidence from trial are determined at this point. This is similar to a game of poker. Take away the right card and you no longer have a winning hand. At some point what looks like a great case for the prosecutor can go to ashes if even one key piece of evidence is excluded at trial. This can lead to better deals or plea offers from the prosecutor and judge than what was offered at the pretrial.

Trial

Trials are not common in OVI cases. The reason is that most people are first offenders, and the police do most everything right and you are being offered a great reduction or plea bargain to avoid an OVI conviction.

When a case goes to trial in Ohio on a misdemeanor you will have a right to a trial by a judge or jury. A jury is made up of 8 people that will hear evidence and determine credibility of witnesses. They must make a unanimous decision to say guilty or not guilty. The judge will take the role of a jury in a bench trial. In all cases in Ohio the judge will impose the sentence.

Sentencing

The penalties on an OVI case in Ohio are imposed at sentencing. The judge will do this after a guilty plea or finding of guilt after a trial. Penalties for an OVI in Ohio include:

4511.19 – OVI Penalties

# Of offenses in TimeSentencingJailFines
(*Court costs are extra*)
SuspensionMin. time before court can grant a letter for driving privileges
1st / 10 years Low Tier
or Under the Influence
Misdemeanor
1st Degree
3 days jail or DIP up to 180 days$375–1,0751–3 years
(*May be reduced by Annie’s Law/ Interlock*)
After 15 days
1st / 10 years with High Tier,
or Refusal with Prior in 20 yrs.
Misdemeanor
1st Degree
6 days jail or 3 days jail and 3 day DIP up to 180 days$375–1,0751–3 years
(*May be reduced by Annie’s Law/ Interlock*)
After 15 days
2nd / 10 years Low Tier
or Under the Influence
Misdemeanor
1st Degree
10 days jail up to 180 days$525–1,6251–7 yearsAfter 45 days
2nd / 10 years High Tier,
or Refusal with prior in 20 yrs.
Misdemeanor
1st Degree
20 days jail up to 180 days$525–1,6251–7 yearsAfter 45 days
3rd / 10 years Low Tier
or Under the Influence
Unclassified Misdemeanor30 days jail up to 365 days$850–2,7502–12 yearsAfter 180 days
3rd / 10 years High Tier,
or Refusal with prior in 20 yrs.
Unclassified Misdemeanor60 days jail up to 365 days$850–2,7502–12 yearsAfter 180 days
4th/5th in 10 years;
or 6th/20 years and Low Tier
or Under the Influence
Felony 4th Degree60 days local jail up to 1 year;
or, 60 days prison up to an additional 6–30 months
$1,350–10,5003–life3 years
4th/5th in 10 years;
or 6th/20 years and High Tier,
or Refusal with prior in 20 years.
Felony 4th Degree120 days local jail up to 1 year;
or, 120 days prison up to an additional 6–30 months
$1,350–10,5003–life3 years
2nd Felony Lifetime and Low Tier
or Under the Influence
Felony 3rd Degree60 days prison up to 36 months$1,350–10,5003–life3 years
4th/5th in 10 years;
or 6th/20 years and High Tier,
or Refusal with prior in 20 yrs.
Felony 3rd Degree120 days prison up to 36 months$1,350–10,5003–life3 years

All OVIs are 6 points on your driver’s license.

Up to 5 years on probation (*Supervision fees extra*).

OVI is not eligible for sealing or expungement, but maybe appealed.

Courts may always order restricted plates or interlock (*mandatory in some cases*).

Assessment / Treatment and Counseling can always be ordered (*mandatory in some cases*).

If the jail is full, house arrest may be imposed in lieu of some jail time.

Second Offense in 10 years may cause 90 day vehicle immobilization.

Third or more OVI in 10 years can cause vehicle forfeiture.

After a felony OVI conviction all future OVIs will be felonies.

Felony OVI with 5 or more priors in 20 years can cause spec for additional 1-5 years prison.

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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