As of September 30, 2008 Ohio Senate Bill 17 went into effect instituting many changes to Ohio's already tough OVI/DUI law! While the changes for a first time offender experienced little change, persons charged with an OVI who have had a prior conviction for OVI within 6 years face tougher penalties.
Specifically, if convicted of a 2nd offense within 6 years, the court may require a continuous alcohol monitoring device ("CAM," a device worn around the ankle that will notify probation if you ingest alcohol), in addition to mandatory incarceration (JAIL), the court is required to order an alcohol/drug assessment and any recommended treatment will be mandatory. Finally, if the court grants driving privileges during the mandatory 1-5 year suspension, privileges are not available for the first 45 days and once granted, the restricted license plates (aka "scarlet letter" or "party plates") AND an ignition interlock device (breathylizer) are mandatory.
Sentencing for 3rd offenders within 6 years also was stiffened as well as some of the other alcohol related offenses.
If you have found yourself charged with an Ohio OVI / Ohio DUI charge, it is extremely important that you seek the advice of a competent OVI lawyer. Your DUI lawyer should be not only be familiar with the current law as it applies to sentencing, your Ohio DUI attorney should also be able to thoroughly and properly assess your case to know what your available defenses are.
Not everyone charged with an OHIO OVI / Ohio DUI has to be convicted. As a matter of fact, many of the Ohio DUI / OVI charges are very defendable if you have a qualified Attorney.
Local counsel can be beneficial, but is not essential! The biggest benefit to local counsel is that they will know all of the little habits or pet peeves of the judge and prosecutor. Examples: does the judge give jail days if you had an accident while drinking and driving or does the prosecutor have a “no deals” policy on breath test refusals, or does the judge deny occupational driving on refusals until the defendant pleads guilty. These examples are generally known to local counsel or at least the attorneys who practice regularly in the court. However, the most important qualification for your OVI / DUI attorney is that they not only know the court, but that they have all the knowledge and tools to properly assess and defend your OVI!
Absolutely! However, not every attorney that is listed in the phone book under the DUI / OVI listing is competent to fight these cases. As a matter of fact, many of the attorneys that list DUI / OVI cases in their Yellow Pages advertisement have never done a DUI / OVI / Drunk Driving trial. Do you want someone representing you who has never had a trial? Do you want someone representing you who only knows how to say “GUILTY” or “No Contest?”
Breath test cases are not easy to fight and they generally require the attorney to have a knowledge of the instrument that you blew into, familiarity with the Ohio Department of Health regulations that regulate the maintenance and use of the breath testing instrument, human anatomy and physiology and general trial skills. Additionally, fighting an OVI / DUI with a blood, breath or urine result over 0.08 can be very time consuming and expensive.
When choosing your OVI / DUI lawyer, make sure you ask them if they have ever done a DUI / OVI trial with a blood, breath or urine test admitted into evidence.
Many people think they actually passed the field sobriety tests before they were arrested! The problem is, most people who are taking the field sobriety tests are inexperienced in taking the tests and accordingly, have no idea what the officer is looking for.
If the officer checks your eyes, simply being able to follow the pen (or their finger) doesn’t mean you passed the test. What the officer is looking for is an involuntary twitch of the eyeball called nystagmus – specifically, Horizontal Gaze Nystagmus (HGN).
Nystagmus is a condition that is checked for everyday in thousands of individuals and the HGN is usually administered by someone with much more schooling than a police officer – their called doctors! Specifically, neurologists use this test on a daily basis to check patients for various neurological conditions such as multiple sclerosis and Parkinson’s disease. There are numerous substances that we ingest that can also cause nystagmus including nicotine, caffeine and of course, alcohol. Specifically, the National Highway Traffic Safety Administration (NHTSA) has told us that if a police officer gives this test using the specified procedures, it is a tool that can assist the officer in determining the likelihood of the test subject having a blood-alcohol level greater than 0.10 – specifically, there is a 77% chance that the person will test 0.10 or higher on a breath test machine (or blood or urine test).
The Walk & Turn test that was administered is another exercise used to assist the officer in knowing the likelihood of a subject testing 0.10. Specifically, the officer should be trained to administer very specific instructions and then look for the following things:
1. Suspect Cannot Keep His Balance While Listening To The Instructions
i. Score this only if suspect does not maintain the heel-to-toe position throughout the instructions (feet must actually break apart)
ii. Do not score this clue if suspect sways/uses his arms to balance himself, but maintains the heel-to-toe position
2. Suspect Starts Before Instructions Are Finished
3. Suspect Stop While Walking
i. Record this clue if suspect pauses for several seconds
ii. Do not record this clue if the suspect is merely walking slowly
4. Suspect Does Not Touch Heel-to-Toe – gap between heel and toe must be more than ½ inch
5. Suspect Steps Off The Line – at least one foot of the suspect must be entirely off the line
6. Suspect Uses Arms To Balance – arm(s) must be raised more than 6 inches from sides for this clue
7. Suspect Makes Improper Turn
i. Suspect removes front foot from the line while turning
ii. Suspect does not follow directions as demonstrated (i.e., spins or pivots around)
8. Suspect Uses Incorrect Number of Steps – either more or fewer steps in either direction
Again, NHTSA has indicated that if an officer observes two (2) or more of the preceding eight (8) indicators, there is a 68% chance the subject will test 0.10 or higher.
The One-legged stand (OLS) is the 3rd test endorsed by NHTSA as a tool to be used to help officers determine the likelihood a subject will test 0.10. The NHTSA guidelines instruct the officer to watch for the following:
1. Suspect Sways While Balancing – side-to-side or back-and-forth motion while in one-leg stand position
2. Suspect Uses Arms To Balance – arms must be raised more than 6 inches from sides to count this clue
3. Suspect Hopping (to maintain balance) –resorts to hopping in order to maintain balance
4. Suspect Puts Foot Down – not able to maintain one-leg position, but puts foot down one or more times during 30 second count
As you may suspect, NHTSA tells us that if the proper instructions are administered, if an officer sees 2 of the preceding 4 indicators, there is a 65% likelihood the subject will test 0.10 or higher.
Your OVI / DUI attorney should be familiar with the NHTSA standardized procedures and criteria and know how to effectively challenge these tests in court. Even if the judge says these tests are admissible at trial, a competent OVI attorney / DUI attorney should know how to deal with these tests in front of a jury (so long as the client was literally “falling down drunk”).