OVI/DUI Frequently Asked Questions
- What is DUI or OVI?
- Does the car have to be moving for me to be guilty of OVI?
- Can I still be in trouble for driving, even if my BAC is below the legal limit?
- Do Miranda Rights apply to OVI cases?
- Do I have to submit to a breath, blood, or urine test?
- If I am arrested for an OVI, will I lose my license?
- How long will I lose my license?
- What else will happen to me?
- Can I fight my OVI arrest?
- Is there any way to avoid an OVI?
What is DUI or OVI?
DUI is shorthand for "Driving Under the Influence." However, it is now known as OVI which stands for "Operating a Vehicle While Under the Influence." A person is guilty of OVI if he or she drives a motor vehicle and is under the influence of alcoholic beverages or any chemical or controlled substance to the extent that his or her mental faculties are impaired or when his or her blood alcohol level (BAC) is above the legal limit, which is presently .08 in Ohio and Kentucky.
Does the car have to be moving for me to be guilty of OVI?
For the most part, yes. But Ohio now has a separate charge for being in physical control of a vehicle, which is less severe than driving while under the influence. If you find yourself in a situation in which you must pull over to sleep, do not remain in the driver's seat and remove the keys from the ignition.
Can I still be in trouble for driving, even if my BAC is below the legal limit?
Yes. It is also unlawful to drive with your "normal faculties" impaired. "Normal faculties" are those faculties of a person, such as the ability to walk, talk, judge distances, drive and automobile, make judgements, act in emergencies, etc. The standard is whether or not there is enough alcohol in your system to appreciably impair your ability to operate a motor vehicle. Persons who have used some drugs of abuse prior to driving, such as marijuana or cocaine, may have violated the OVI statute even though they have consumed no alcohol and the BAC test would not apply. In cases such as these, police officers have a right to request that you submit to a urine or blood test even if you had already submitted to a breath test. Therefore, you can be marked for refusal even if you submitted to the breath test.
Do Miranda Rights Apply to OVI Cases?
Yes. However, the beginning of the process is often confusing in OVI cases as opposed to normal criminal cases. By the time the Miranda Rights are read to a driver enough information has often been obtained that a phone call to an attorney or remaining silent has lost much of its value. A police officer, on a suspected OVI stop, has a right to investigate to determine if a driver may be OVI. This usually consists of questioning the driver, asking the driver to exit the vehicle, and running the driver through several psychomotor tests designed to determine coordination of that driver. Up to this point, the law does not require that the officer read you the Miranda Rights. Only when he or she has handcuffed a driver or places a driver in custody must he or she read a driver his rights. However, by this time, the police officer may have enough evidence to obtain a conviction. There is nothing improper with asking the officer if you may call an attorney at the time of the stop. When this is refused, you have a choice. It is my opinion that, if the officer won't let you leave, a case could be made that you are under arrest and should be permitted to call an attorney. If the driver refuses to cooperate any further, he would be marked as a refusal but there would be very little evidence to convict the driver. This advice is only recommended for drivers who are obviously over the limit.
For more information on Miranda Rights see the criminal section of this website.
Do I have to submit to a breath, blood, or urine test?
No. Whether or not to do so depends on the situation. If you have had 3 or less drinks over a normal period of time, by all means take the test. If you have had 7 or more drinks you are not likely to be below the limit. With 3-6 drinks, whether or not you should take the test depends on the food consumed, length of time since drinking, length of time drinking, your weight, and many other factors. Some drinkers do not know how much they have had to drink. Some single mixed drinks are actually doubles, which count as 2 drinks. A drinker should know his limit and not go past it. Sometimes a call to an attorney from the police station prior to taking the test can be beneficial to determine if you should take the test. Be sure to utilize your Miranda Rights early and ask for privacy when speaking to a lawyer. Be able to honestly tell your lawyer how much you have had to drink and over what period of time. (Keep in mind, however, that the above guidelines cannot be relied upon all the time and in every situation. This is intended for informational purposes only).
You should also know that the laws in most states permit the Motor Vehicle Department to suspend your privilege to drive. Your refusal to submit to a test upon the request of a law enforcement officer is admissible in any criminal proceeding against you as evidence of your consciousness of guilt. By accepting the privilege extended by the law of most states to drive, the Courts have determined that you have given your consent to submit to an approved chemical or physical test of your breath for the purposes of determining your BAC, and to urine or blood test for the purpose of detecting the presence of drugs. Therefore, when you sign your name on your license, you are saying that at a stop for a possible OVI you will accept to take the test. However, you do not have to.
In addition, the police officer will tell you that if you do not take the test you will lose your license for one year in Ohio. This may or may not be true. The minimum suspension is 6 months and, if you end up pleading no contest or guilty to the charge, the refusal does not have to be considered a refusal by the Court for sentencing purposes. The Judge could suspend your license for 6 months on the first offense and, depending on the Judge, a 6 month suspension will often be imposed even for arrestees who refuse the test as long as they plead guilty or no contest. However, the police officer will not tell you this. Keep in mind, a refusal will result in a 1 year driving suspension.
If I am arrested for a OVI, will I lose my license?
Yes, the law enforcement officer will seize your license if you are arrested for OVI with an unlawful BAC or after you refused to submit to a chemical or physical test. Your license will be seized, and the officer will issue you a traffic ticket, which acts as both a temporary driver's license and as your notice of suspension.
How long will I lose my license?
This will vary from state to state. However, if you have refused to submit to a chemical or physical test, your license will likely be suspended for a period of 1 year for the first refusal. Those convicted of first time OVI must receive at least a 6 month suspension and will usually be granted work privileges after 15 days. Those convicted of a second OVI within a 6 year period must receive at least a 1 year suspension and may be granted work privileges after 30 days.
What else will happen to me?
This varies from state to state. In Ohio, you must receive 3 days as a first offender, 10 days as a second offender and 30 days as a third offender (multiple convictions within 5 years). However, if you get a BAC over .17 these penalties go up to 6 days, 20 days and 60 days respectively. This is usually served in some type of alcohol treatment program and the days must be served consecutively. High tier tests (over .17 BAC) will result in a combination of treatment and jail. You will also receive 6 points on your license. 12 points in a 2 year period will also result in a suspension of 6 months. At the end of any suspension in Ohio, you must pay a reinstatement fee to be able to drive again even after the suspension is completed, or you will be under another suspension. Furthermore, your insurance company may discontinue your coverage or at the very least assign you to a high risk category resulting in a substantial increase in your premiums.
Can I fight my DUI arrest?
Yes. Sometimes evidence can be suppressed. Sometimes you can try the case to a Judge or a jury if the evidence against you does not appear to be strong enough. You may also request a hearing with regard to your license suspension. Even a case that is probably unbeatable can benefit from a good lawyer who may be able to obtain a minimum sentence.
Is there anyway to avoid a DUI?
It sounds simple, but don't drink and drive. Take a taxi, designate a driver, walk, call a friend, but no matter what, do not drink and drive. However, if you do and are stopped, call an attorney as soon as possible back at the police station and before you submit to the tests.
If you or someone you know in Ohio needs the assistance of an experienced Cincinnati Criminal and Drunk Driving Defense Attorney, call Stephan D. Madden Co., LPA today at 1-866-770-2359, or complete the contact form provided on this site to schedule your free consultation.
