1. What is law enforcement looking for to detect potentially drunk drivers?

Most DUI/OVI arrests occur either at night or on the weekends. Law enforcement is looking for a number of clues that suggest that the driver of a vehicle may be impaired. These include:

• Almost striking another vehicle or object
• Weaving, drifting or swerving
• Speeding
• Driving more than 10 mph below the speed limit
• Braking erratically
• Slow response to traffic signals
• Headlights off
• Turning abruptly or illegally
• Tires on center or lane marker

2. If I am stopped by the police and asked whether I have been drinking, what should I say?

You should politely tell the officer that you would like to speak with an attorney before answering any questions. You are never required to answer potentially incriminating questions. While saying that you had one or two beers does not mean that you are impaired, it is incriminating and this admission will be used against you in court.

3. Do I have a right to an attorney prior to performing any field sobriety tests?

No. You do not have the right to counsel until you are placed under arrest. By the time this occurs, you may have already said or done too much. By asking that you perform field sobriety tests, the officer is essentially asking that you provide evidence against yourself. Whether you are impaired or not, these tests are designed for you to fail. While you don’t have the right to an attorney before being placed under arrest, the best course of action is to request one immediately after the officer asks whether you have been drinking and to politely refuse to answer his or her questions.

4. What is law enforcement looking for initially after stopping my vehicle?

The police are trained to note several clues of impairment on their report. These clues are used to justify the continued detention of you after the stop and include the following:

• Glassy and/or bloodshot eyes
• Odor of alcohol on your breath
• Slurred speech
• Fumbling with your wallet to get your license
• Difficulty finding your proof insurance or registration
• Failure to answer the officer’s questions
• Stumbling when exiting your vehicle
• Combative or argumentative behavior
• Disorientation with time and place

5. What should I do if asked to perform field sobriety tests?

There are a variety of field sobriety tests. However, the three standardized field sobriety under the National Highway Traffic Safety Administration (NHTSA) manual are the horizontal gaze nystagmus test, walk and turn test and one leg stand test. However, two common non-standardized tests the officer may utilize are asking you to recite the alphabet and count numbers.

As stated earlier, these tests, particularly the three standardized tests, are designed for you to fail. Therefore, you should politely refuse to perform these tests. Under Ohio law, you are not required and will not face any consequences for refusing field sobriety tests. However, by performing these tests, you are providing the prosecution evidence that will be used against you.

6. The officer asked that I follow his pen with my eyes to the left and right. What was the officer looking for?

The officer had you perform the “horizontal gaze nystagmus” test. The officer is determining whether nystagmus (jerking) is present in your eyes. The officer will do this by having you watch a stimulus (e.g., a pen, finger, etc.) as the officer moves it across your field of vision. The smoothness of your eye’s in tracking the stimulus is also observed the officer.

While the NHTSA manual states that studies have concluded that this is a reliable test for determining whether a person is impaired, there are problems with the test. This includes the fact that the officer administering the test has no medical training, may have administered the test incorrectly, or the clues detected from this test don’t indicate impairment, but a neurological issue.

7. The police told me to walk an imaginary line. What was he or she looking for?

The officer had you perform the “walk and turn” test. The officer is using this test to determine whether you are impaired. The officer will have you follow a number of instructions while doing this test. Thus, completing the test does not mean that you “passed” the test. As with other field sobriety tests, it is designed for you to fail.

The officer will tell you to stand with your right foot in front of your left, touching heel-to-toe. After completing a series of instructions, the officer will instruct you to begin. The officer will look for a number of clues. These include moving your feet during the instructions, not touching heel-to-toe, stepping off the line, raising your arms, turning improperly or taking an incorrect number of steps. Most of these are innocuous and do not mean that you are impaired. However, any failure to strictly comply with the instructions will be counted against you.

8. I submitted to the field sobriety tests, but I have a recent leg/ankle injury. Will this help my case?

The NHTSA manual states that the reliability of the one leg stand test results can be impacted by a recent leg injury. While this will not lead the suppression of the tests results, an argument can be made at trial that the results of the one leg stand test cannot be relied upon because of the injury to you ankle or leg. This argument can also be extended to the results of the walk and turn test.

9. Should I agree to submit to a breathalyzer or other chemical test?

Assuming that you do not have any previous DUI/OVI offenses, you should not submit to any BAC test. This includes a breathalyzer, or blood or urine test. Refusing a chemical test in Ohio if you have a previous DUI/OVI conviction is unlawful and you will be subject to criminal penalties. However, refusing to submit to chemical testing if you have no previous DUI/OVI convictions is not unlawful.

Understand that a refusal will result in an administrative license suspension of one year and can be used against you at trial. Testing over the legal limit, however, will make challenging your DUI/OVI charge much more difficult for your attorney. Thus, it is advisable that you not submit to any chemical testing unless you are absolutely sure that you have had nothing to drink.

10. Can I choose which chemical test to perform?

If you decide to submit to chemical testing in Ohio, you must submit to the chemical test chosen by the officer. This is almost always a breathalyzer. However, the officer may ask that you perform either a urine or blood test.

11. Will my case be dismissed if the officer did not state my Miranda rights to me?

No. The officer is only required to give a Miranda warning if wants to question you after you are placed under arrest. The officer does not have to provide these warnings if he or she only places you under arrest.

Moreover, the only consequence for failing to provide Miranda warnings is that the prosecutor will not be able to use any of your answers to police questions after arrest. This will not result in a dismissal of your case. The best course of action is to say nothing.

12. Why was I charged with DUI/OVI twice?

Ohio law provides for two different types of DUI/OVI offenses. These are DUI/OVI “impaired” and DUI/OVI “per se.” DUI/OVI impaired is the offense that every person who is charged with DUI/OVI in Ohio is charged with. DUI/OVI “per se” will be charged if you submit to a chemical test and the test is over the legal limit.

DUI/OVI “impaired” requires the prosecution to prove beyond a reasonable doubt that you were impaired while driving your vehicle. DUI/OVI “per se” does not require the prosecution to prove that you were impaired because you are presumed impaired if you test over the legal limit. This is another reason why submitting to chemical testing is a bad idea.

13. The officer took my driver’s license and gave me a notice of suspension after I did the breath test. How is that legal?

Ohio has an implied consent law. This statute provides for the immediate suspension of a person’s driver’s license if the person either refuses to submit to chemical testing or tests over the legal limit.

It is important to note that there are two types of driver’s license suspensions in Ohio. One occurs as part of your criminal case and will occur if you are found guilty or plea guilty. This suspension will be for a period of 6 months to several years.

The other is a BMV suspension. By refusing chemical testing or testing over the legal limit, your license will be subject to an administrative license suspension. This is for 90 days for testing over the legal limit or one year if you refuse chemical testing.

14. What penalties am I looking at if I am found guilty at trial or plead guilty to DUI/OVI in Ohio?

For a first time DUI/OVI offense in Ohio, you face a mandatory minimum of three days in jail and a maximum of six months in jail. Additionally, a fine of up to $1075 will be imposed and your license will be suspended for a minimum of six months. These do not include secondary consequences, such as difficulty securing employment, potential suspension or revocation of any professional license you have (e.g., doctors and lawyers), points being assessed to your driver’s license, higher insurance rates, and an ignition interlock or SCRAM device being placed on your vehicle or person.

15. I have a previous DUI/OVI offense. Will the penalties increase for subsequent offenses?

Yes. DUI/OVI in Ohio is an offense that will result in subsequent DUI/OVI offenses being enhanced. The relevant look-back periods are 6 and 20 years. Subsequent offenses during those two time periods will result in the penalties for your DUI/OVI offense being enhanced.

16. Can a guilty plea or conviction for DUI/OVI be expunged in Ohio?

No. Traffic offenses, including DUI/OVI cannot be expunged in Ohio. Thus, a DUI/OVI conviction will remain part of your permanent record.

17. Are there any defenses to DUI/OVI in Ohio?

Yes, a variety of defenses exist. Due to the complexities of DUI/OVI in Ohio, the number of defenses are significant. However, the most effective defenses include the following:

• Lack of operating a vehicle – proving impairment is not enough. The prosecution must also demonstrate that you were operating a vehicle while impaired. The question of whether you were operating a vehicle can be a complicated question.
• Lack of reasonable or articulable suspicion to stop the vehicle or probable cause to arrest – evidence from the stop of your vehicle can be suppressed if the officer did not have a reasonable or articulable suspicion to stop your vehicle or lacked probable cause to detain or arrest you.
• Failure to provide Miranda rights – while not a complete defense, the failure to properly Mirandize or provide Miranda rights at all can lead to the suppression of any statement you make after arrest.
• Failure to substantially comply with the NHTSA manual – Ohio has determined that officers must substantially comply with the NHTSA manual when administering standardized field sobriety tests. Failure to substantially comply can lead to the suppression of the tests and, possibly, the dismissal of the DUI/OVI charge.
• Failure to substantially comply with ODH regulations for chemical testing – The Ohio Department of Health has promulgated certain regulations for chemical testing that must be substantially complied with. As with field sobriety testing, the failure to substantially comply can lead to the suppression of the chemical test and, possibly, the dismissal of the DUI/OVI charge.

18. As a DUI/OVI attorney, what would I do if stopped for DUI/OVI?

Even though I am a DUI/OVI attorney, I would immediately do the following:

• Immediately request an attorney before speaking with law enforcement.
• Refuse to answer any questions (other than provide my name and address)
• Provide my driver’s license, registration and proof of insurance
• Refuse to perform any field sobriety tests
• Refuse to perform any breath, blood or urine tests unless I was sure that I had nothing to drink

19. Can I represent myself?

While you can and have a right to be able to represent yourself, it is not a good idea. DUI/OVI law in Ohio is very complex and failure to understand these complexities can lead to serious consequences. There are a number of intricate issues to navigate, including constitutional, evidentiary, procedural, scientific and administrative concerns.

20. What can a DUI/OVI attorney do for me?

A DUI/OVI attorney can review the facts of your case to determine if any defects exist, filing motions to suppress evidence gathered against you, compel discovery by the prosecution and the law enforcement agency that arrested you, and evaluate the evidence against you, including whether the calibration of the breath machine was appropriate, have blood or urine samples independently analyzed, negotiate for a lesser offense or reduced penalties or bring your case to trial.

Columbus and Delaware, Ohio DUI/OVI Attorney

If you have been charged with DUI/OVI in Columbus or Delaware, Ohio, contact Johnson Legal, LLC and speak with an experienced criminal defense attorney. Attorney David Johnson of Johnson Legal, LLC will discuss your case and assist you in fighting the charges. Call (614) 987-0192 or send an email to schedule a consultation regarding your DUI/OVI case.