Submitting to a Chemical Test; Analysis of Ohio's OVI laws

**This is a general discussion of some OVI principles.  This is not a comprehensive listing of all Ohio OVI laws, and is not intended to be legal advice.  Further, if you have even the slightest inclinations you might be intoxicated, please do not drive.) 

So you have had a great time tonight, you went to the bar, maybe had a few too many, and then made the big mistake, and got behind the wheel.  All of a sudden, you see red and blue lights and you hear a siren, yes, you have been pulled over by the police, and most likely by the highway patrol.

The officer states that he saw you weaving, and from the glassy look in your eyes, he suspects that you have been drinking.  He then asks you if you have been drinking, and you admit that you have.  The officer then asks you to take a field sobriety test, and you don't think it's a question, or that you can say no, so you agree.  You predictably fail this test, and he then asks you to take a brethylyzer test.  What do you do now, do you agree knowing you will fail and be arrested, or do you refuse?

This is the exact same scenario that happens in the State of Ohio thousands upon thousands of times per year.  However, no matter how many times it happens, the answer to that questions are as different as the individual circumtances in which it arises.  However, I am going to analyze this under three different scenarios, as I think that represents most of populations experiences.

Scenario#1:

You have never been pulled over before, and while it's true that you drank a little tonight, you don't think it was enough to become intoxicated.  However, you did take some light seditives for a back condition, and you took some over the counter medications as well.

This scenario seems ripe for the driver to not agree to the chemical test.  While it is possible that they have not drank enough to be afoul of Ohio's Criminal OVI statute, the fact they they have drank at all, makes their own judgment questionable.  By refusing they will be given a six month suspension of their license, but there will be no evidence to convict them, other than the officer's assertions and observations.  Further, it is possible that the drugs they took contributed with a small amount of alcohol to cause a bit of an impairment.  Because they have not been convicted of a prior OVI Offense, they cannot be charged for a crime for refusing to submit to a chemical test, so you might want to consider refusing any chemical test.

Scenario #2:

You pled guilty to an OVI ten years ago when you lived in Indiana, but since then you have lived a pretty clean life.  However, tonight you went a little crazy at your brother's stag party, and you know that you are fairly wasted.  When you take the field sobriety test, you fall over the cones, and the trooper has to hold you up.   Out of an abundance of caution, he asks you to take a breath test, what should you do?

Take the Test.  In all likelyhood, the officer's observations will be more than adequate on their own to convict you, you additionally since this is your second offense, by refusing you will have an administrative license suspension of two years, and the Court can impose an independent license suspension of one to five years.  You will have your license suspended even if you don't refuse, but it will be noticably shorter, and in that you will likely be facing a conviction nonetheless, you should save yourself some time and money, and just take the test.

Scenario #3:

You had an charged OVI in 2005, that you got reduced to a disorderly conduct.  In 2007, you pled guilty to an OVI, and now you have been pulled over again.  Do you take test?  This one is a little more complicated.  For purposes of Ohio Law, you have only been convicted once of an OVI offense.  However, if you are convicted of a second offense, you will be looking at a two year license suspension through the bmv, one to five year license suspension by the court, ninety days of impounded plates, immobilization of your vehicle,and at least 10 days in jail and a $300 fine.  Additionally, it is an additional criminal charge not to submit to a chemical test of you have been previously convicted of an OVI charge. Therefore, the answer here depends on how you did on the field sobriety test, and consequently how drunk you were.  If you think you are close you might not want to submit to a chemical test. 

***However,  Keep the following in mind. Ohio is an implied consent state, and if you refuse at any time to a chemical test, the trooper may very well transport you to a hospital, strap you down to a guerney, and wait for a warrant from a judge, once the warrant has been signed, your blood may be drawn involuntarily.  The police have three hours from the time of the stop to get your blood, if it occurs after that, the test is invalid.

Ultimately, Ohio has made it difficult, if not impossible, for a criminal defendant to say no to a chemical test, and when you say no, the State can get the test anyway if they so choose.  My advice is typically to take the test, as the police are using involuntary blood draws with an alarming increased rate.  Additionally, just because you have a high test does not mean that you will be convicted.  The police as well as the prosecuting attorneys, have a rigorous set of standards that they must comply with in order for evidence to be admissable.  OVI is an area of law that you absolutely must have competant and aggressive representation.

If you have a question about OVI, or if you know someone who has had an OVI, Contact my office immediately, to schedule a no-cost consultation to preserve your rights.  Please email me at justinwright@jwrightlaw.com, or call me at (614) 230-5333 to speak about your OVI case today!

Thanks again for stopping by, and check us out next week, where I will talk about possibly the most dangerous statute that Ohio Legislators have ever passed!  



    


   

Legally Withholding Rent In Ohio

I want to introduce you to my business partner, and good friend, Attorney Joel-Henry Mansfield.  Attorney Mansfield is my business partner, and is simply the best researcher I have ever seen.  I believe, in today's blog entry,  Mr. Mansfield is going to explain a very common, yet complex landlord-tennant issue.

Dealing with a Lazy Landlord: How to (Legally) 'Withhold Rent' in Ohio

Introduction: A Common Concern

            As an attorney, one of the most frequent questions I get asked is how to deal with disputes between landlords and tenants.  It's a prodigious problem: In Columbus alone, there are nearly 168,000 rental units, comprising more than half of the available residences in the city.  Of these, almost 64% will be the subject of a renter's dispute, so if you're renting, the odds of tenancy trouble are dismayingly high. 

            As with any communal human endeavor, there are countless ways in which disputes between a landlord and a tenant can arise.  This week, we will narrow our focus to one of the most common points of contention--failure to effect timely repairs.  Consider the following example:

            Tonya the Tenant rents an apartment from Larry the Landlord for $1000 per month.  She has lived in the apartment for nearly 2 years, although the only paperwork she has signed was a 12-month lease.  One catastrophic day in June, a nearby transformer fails, surging power to her apartment and overloading circuits in the door bell, air conditioner, refrigerator, and dish washer.  Tonya immediately asks Larry to make repairs, but the only appliance he replaces is the refrigerator.  Larry tells Tonya that he will get around to the other appliances when he "has time and money."  A month passes without further effort on Larry's part to make repairs.  What are Tonya's options?

            As any seasoned mediator will tell you, the number of potential solutions to any problem is limited only by the creativity of the person solving it.  In disputes with a landlord, however, competing pressures can quickly reduce the available options: Tonya wants to live in a house with working appliances, but she doesn't want to move; she wants the repairs to be performed quickly, but she doesn't want to be the one to pay for them; she wants to apply pressure to her landlord, but she doesn't want him to evict her.

            What should a tenant in Tonya's position do?  In a perfect world, she would discuss the problem with her landlord in an amiable fashion, and the two of them would work together to come up with a mutually agreeable solution.  Failing this, Tonya should start with the facts--that is, an accurate understanding of her rights and responsibilities under the law:

Question #1: What repairs is the landlord legally obligated to perform?

A landlord's responsibilities are set out in Ohio Revised Code section 5321.04.  Under this statute, the landlord is legally required to "Make all repairs and do whatever is reasonably necessary to put and keep the premises in a fit and habitable condition."  That's a promising start, but then the statute elaborates that the landlord must specifically

"Maintain in good and safe working order and condition all electrical, plumbing, sanitary, heating, ventilating, and air conditioning fixtures and appliances, and elevators, supplied or required to be supplied by him."

When interpreting a statute, the specific often informs the general, and such is the case here, where we find that a landlord's statutory duty to repair is limited to the major fixtures and appliances, specifically those involved in regulating electricity, plumbing, sanitation, and ventilation.

With this statutory language in mind, we return to the hypothetical: It is immediately apparent that the landlord must repair the air conditioning, as it is specifically mentioned in section 5321.04.  But what about the other appliances?  The door bell seems doubtful, as it is not an important electrical, plumbing, sanitary, or ventilation fixture.  As for the dishwasher, there is a better argument because it serves a sanitary purpose, although a working sink would provide a sufficient, albeit slower, substitute.

That is not to say that Tonya has no remedy for the broken door bell and dishwasher.  Were she to file a lawsuit on a breach of contract action, she could recover part of her rent because she is no longer receiving the full benefit of the lease agreement she made with the landlord.  Note that this remains true despite the fact that Tonya's written lease has expired: In Ohio, a tenant who pays her rent on time is presumed to have an enforceable oral contract on a month-to-month basis, with terms substantially identical to the original lease.  The landlord is bound by this oral agreement unless and until he provides a written 30-day notice of eviction.

Tonya, of course, doesn't especially care about recovering some small portion of her rent every month in damages: She wants the air conditioning to function during the hot Summer months.  Thus, we are left with a secondary issue:

Question #2: How can the tenant compel compliance?

            As many tenants know, it can be difficult to convince a reluctant landlord to fulfill his obligations of repair: The best way to capture his attention would be by ceasing to pay rent, but such "self-help" measures are forbidden in Ohio, and can lead to an eviction action.  Fortunately, the Code provides several viable alternatives to this not-so-subtle form of persuasion: Under ORC section 5321.07, a tenant who believes that her landlord is not fulfilling duties imposed either by the section 5321.04 or by the lease agreement may provide written notice of the unfulfilled obligations to the landlord.  Once notice is provided, the landlord has 30 days to effect the repairs.  Following this period, if he fails to return to compliance, the tenant may elect one of the following options:

1. Terminate the Lease

2. Deposit all future rent with the clerk of the municipal court, to be held in escrow until the landlord demonstrates that he has performed the necessary repairs.

3. Apply to the court for an order directing the landlord to fulfill his obligations.

Section 5321.07 provides a tenant with two powerful tools to help ensure the landlord's compliance with his obligations.  The first affects the landlord's pocketbook by permitting the tenant to pay rent to a secure escrow account controlled by the court.  The clerk of the court will hold the money until the landlord applies to receive it, at which point the court will schedule a hearing to determine whether the landlord has fulfilled his duties.  Note that this is not technically "rent withholding," as the tenant is still obliged to make the rental payments, but it has the same effect of direct economic pressure.

            The second significant remedy outlined in section 5321.07 is a court order compelling the landlord to make all necessary repairs complained of by the tenant.  A court order is another direct and powerful remedy, because it subjects the landlords to substantial penalties if he does not comply within a reasonable period.  Non-compliance with a court order is a separate criminal act known as "contempt," and can be punished by fines or even incarceration.  And, for the truly recalcitrant, section 5321.07 even permits the combination of these two remedies, making non-compliance that much costlier.

            It should be noted, however, that these remedies are not without some limitations.  For example, section 5321.07 specifically excludes any university housing or dormitories.  Additionally, landlords who are parties to rental agreements covering three or fewer rental units may also be exempted, provided that they give written notice of this fact at the time of the lease agreement.

Concluding Thoughts

            Convincing a landlord to follow through on his contractual and statutory duties can be a difficult and stressful process.  It is not uncommon for tenants to feel helpless and confused about their rights under the law.  However, the revised code does provide tenants with useful, even powerful, remedies to compel compliance, provided that the tenants fulfill their own statutory obligations of notice and rental payment.  Ultimately, as in any legal disputes, the wisest course to is first ensure that your choice is well-informed and fully considered: Consulting a local attorney with experience in this area of law is the best way to ensure that your needs are met and your rights are preserved.

**If you have any questions about Landlord-Tennant disputes, or anyother legal issues, feel free to contact Attorney Mansfield at joelhmansfield@jwrightlaw.com.