Originally published on: Feb 16, 2017
Below are some of the most OVI/DUI frequently asked questions and answers.
What is an OVI?
OVI stands for Operating a Vehicle While Impaired. It used to be called DUI- because the statute used to require a person to drive before they could be charged. Now, it only requires the operation, which does not require that the vehicle actually is moving. As a matter of fact, the vehicle doesn’t even have to be running if you are in the driver’s seat and the keys are within reach. The Court will look for specific facts that prove that you actually drove the vehicle. If it can be reasonably inferred (either through direct or circumstantial evidence) that you drove while impaired, you can be charged with OVI.
What is physical control?
If the police officer can’t prove that you actually drove the vehicle while impaired, you can be charged with Physical Control. Physical Control is similar to an Ohio OVI/DUI charge in that it deals with being in a vehicle while under the influence of alcohol or drugs of abuse with one exception, Physical Control does not require that the vehicle has ever been driven or even started.
A Physical Control violation will typically be charged when a person is found in a bar parking lot sleeping it off in their vehicle. The car does not have to be running or even have the keys in the ignition in order to be in violation of Physical Control. Under the statute, having the keys within reach will satisfy the definition of having “physical control.”
What are field sobriety tests?
There are three standard field sobriety tests that a police officer may have asked you to perform. Specifically, those tests are the HGN or Horizontal Gaze Nystagmus, the Walk and Turn and the One Leg Stand. The police officer is looking for specific clues in each test to determine whether or not you are impaired.
HGN or Horizontal Gaze Nystagmus
If the officer checks your eyes, simply being able to follow the pen (or their finger) doesn’t mean you passed the test. What the officer is looking for is an involuntary twitch of the eyeball called nystagmus – specifically, Horizontal Gaze Nystagmus (HGN). Nystagmus can be an indicator of impairment. However, there are other causes of nystagmus, such as neurological conditions like multiple sclerosis and Parkinson’s disease. Also, though rare, some people have a natural nystagmus. In order for the HGN test to be used against you in Court, the office must administer the test according to specific training. If he does not substantially comply, the test results are inadmissible.
Walk and turn
The Walk and Turn test is another standard field sobriety test. The police officer should be trained to administer specific instructions and then look for the following things or clues:
- Keeping Balance While Listening To The Instructions
- Starting Before Instructions Are Finished
- Stopping While Walking
- Not Touching Heel-to-Toe
- Stepping Off The Line
- Using Arms To Balance
- Making Improper Turn
- Taking the Incorrect Number of Steps
In this test, the police officer only needs to identify two clues in order for the test to be considered a failure. However, there are certain physical factors that may affect the test, such as medical conditions and surface conditions where the test was performed and may undermine the results.
The one leg stand
- The One-legged stand (OLS) is the final standard field sobriety test. The police officer will be looking for the following clues:
- Swaying While Balancing
- Using Arms To Balance
- Hopping (to maintain balance)
- Putting Foot Down
If the proper instructions are given, and a police officer sees two of the preceding four clues, it is considered a failure of the test. If you put down your foot three times, it is also considered a failure of the test. Like the Walk and Turn, there are certain physical factors that may affect the test and invalidate the results.
Why was I charged with OVI/DUI when I passed the field sobriety tests?
Some people believe they passed the field sobriety tests before they were arrested. Many police departments have videos that can be reviewed to determine whether or not the police officers administered the tests according to their training. A video may show whether or not the clues or indicators outlined above are apparent. A Motion to Suppress may be filed if any factors exist that would invalidate the tests results.
I took the breath test, is it possible to fight my OVI/DUI?
Breath-test cases require knowledge of the machine, familiarity with the Ohio Department of Health regulations that regulate the maintenance and use of the breath-testing machine, and certain other physical factors that may affect the results. If there are any issues with a breath test, it must be challenged through a motion to suppress. If that motion to suppress is successful, the breath test results will not be admissible at trial.
I really need to drive. Will I be able to get a restricted/occupational/ conditional/probationary permit?
Limited driving privileges may be available to you if your license is suspended and you had a valid Ohio Driver License at the time of your suspension. Typically, there is some amount of waiting period before your eligibility.
I have a commercial drivers license (CDL). Will my CDL be suspended if I get arrested for an OVI/DUI?
If you are convicted of an OVI/DUI offense, your CDL will be suspended for one year. This is true, even if you were NOT driving a commercial vehicle at the time of your offense. For a second OVI/DUI conviction, your CDL will be revoked for life. You CANNOT obtain limited driving privileges to operate a commercial vehicle.
Will an Ohio DUI go on my driving record?
Yes. An OVI/DUI conviction will go on your Ohio driving record and stay on your record essentially forever. However, Driver Abstracts (the record available to your insurance company) generally only go back three years. You cannot expunge an Ohio OVI conviction.
I was arrested at an OVI/DUI checkpoint. Is that legal?
Generally speaking, OVI/DUI checkpoints are authorized in Ohio so long as the police give advance notice of the checkpoint. The police department running the checkpoint must follow certain requirements in order for the checkpoint to be valid.
Do you have to be convicted to lose your license from an OVI/DUI?
No. You can lose your license for failing or refusing a breath test. This suspension is separate from any suspension for an Ohio OVI/DUI conviction. You also may face a suspension for a number of other reasons, such as failing to show insurance, failing to appear at court, or failing to pay a fine.
If you or a loved one find yourself charged with an OVI in Ohio, make sure you are adequately represented.
To learn more, contact the expert criminal defense lawyers of Dworken & Bernstein.
In Lake County, call 440.946.7656
In Cuyahoga County, call 216.861.4211