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Best Defenses to DUI/OVI in Ohio

Johnson Legal, LLC Posted on by

Besides hiring a good DUI/OVI attorney and being willing to fight the DUI/OVI charge, the following are the best defenses to DUI/OVI in Ohio: illegal stop, inaccurate administration of field sobriety tests, incorrectly interpreting the field sobriety test results, arrest without probable cause, officer error in administering chemical testing, and flawed breath machines.

Illegal Stop

The 4th Amendment requires that law enforcement have an articulable, reasonable suspicion of a violation of the law in order to stop your vehicle. The police must have a reasonable suspicion that a crime has been or is about to be committed to stop your vehicle. Law enforcement often accomplishes this by observing an individual commit a minor traffic offense, such as speeding, weaving, failure to activate headlights, or failing to stop at a stop sign. Upon being stopped the police must establish an articulable reason to continue your detention (i.e., beyond issuing a ticket) to do a drunk driving investigation.

Inaccurate Administration of Field Sobriety Tests

If the officer fails to properly administer the field sobriety tests properly, gives inaccurate instructions, or does not understand the tests, the tests validity come into question. Standardized field sobriety tests were developed by the National Highway Traffic Safety Administration (NHTSA) to help determine whether a driver was intoxicated without the need for a chemical test (i.e., blood, urine or breath testing). The NHTSA has specific guidelines on how field sobriety tests are to be administered. The failure of the officer to substantially comply with these guidelines results in the field sobriety tests not being admissible.

Incorrect Interpreting the Field Sobriety Test Results

Law enforcement may properly administer the test, but fail to properly interpret the results or score the test correctly. The officer’s dashboard video needs to be reviewed to insure that the field sobriety tests were administered correctly and properly scored. Law enforcement sometimes misinterpret the results of the field sobriety test, deeming the person to have failed. Review of the dashboard video and aggressive cross-examination of the arresting officer will determine whether a DUI/OVI defendant failed the tests, or the officer failed to score the tests correctly. If the person actually passed the test, but the officer scored it wrong, the results of the test can be used to prove that the person was not impaired.

Arrest Without Probable Cause

Even if an officer makes a valid traffic stop supported by reasonable suspicion, the officer must continue the DUI/OVI investigation until probable cause is found to make an arrest. Sometimes, law enforcement will make an arrest for DUI/OVI before probable cause is determined. When this occurs, the officer has made an unlawful arrest and all evidence that is obtained after the arrest is inadmissible in court.

Officer Error in Administering Chemical Testing

After an arrest is made and the person is in custody, proper Miranda warnings must be given. Failure to do so may result in exclusion of any statements that you make while in custody. After being arrested, the officer must observe the person for 20 minutes before administering an evidential breath test. This breath test must be administered, however, within 3 hours of arrest. Prior to requesting the individual to submit to a breath test, the officer must inform the driver of the consequences of submitting to the test, the person’s right of refusal, and the consequences of refusal. Failure to advise the driver of the above may result in the results of the test, or the refusal to submit, inadmissible. Moreover, this may result in a failure to justify a driver’s license suspension.

Flawed Breath Machine

Breath machines in Ohio must conform to certain requirements regarding calibration and officer performance under the Ohio Administrative Code. These requirements must also be in conformity with the Ohio Department of Health. If the machines are not maintained and calibrated appropriately, the validity of their results are open to question and will not be admissible as evidence in court.

Common Breath Test Defenses

The defenses above are commonly used to attack the DUI/OVI investigation itself. Listed below are common defenses for the breath test:

  • Insufficient or non-continuous observation period of 20 minutes before administering the breath test.
  • Burping, belching or vomiting during the 20 minute observation period before administering the breath test.
  • Certain medical conditions, such as Acid Reflux Syndrome, Irritated Bowel Syndrome, gum disease or gingivitis, and certain respiratory problems (e.g., asthma, bronchitis or emphysema).
  • Radio interference with the test machine by the officer’s cell phone, radio or other equipment that cause the machine to give an artificially high reading.
  • Officer dashboard camera supports sobriety and refutes a high reading.
  • Unintentional alcohol use (e.g., Nyquil, breath drops, Vicks Formula 44).
  • Officer failing to inform you of the right to a second independent test.
  • Officer not appropriately trained in accordance with the Ohio Administrative Code.
  • Machine not calibrated and maintained appropriately.
  • Officer gives ALS warnings, but then threatens serious consequences for which there is no basis or misstates the consequences.
  • State fails to prove that the results were obtained in the required 3 hour window.

Columbus and Delaware, Ohio DUI/OVI Defense Attorney

If you have been charged with a DUI/OVI offense in Columbus or Delaware, Ohio, call Johnson Legal, LLC at (614) 987-0192. Attorney David Johnson is an experienced DUI/OVI attorney who will discuss your case, assist you in preparing a strong defense, and vigorously defend you against the DUI/OVI charge.

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