**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!
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