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DUI Frequently Asked Questions in Ohio

Can I be stopped and arrested for DUI even if the vehicle was not moving?

Ohio’s OVI statute prohibits “operation” of a vehicle while under the influence of drugs or alcohol. If you are convicted of driving a car while intoxicated then this will fall under OVI charges. However, Ohio also has a “Physical Control” statute which means that even if you are not driving at the time you can be convicted due the fact that you were in physical control of a motor vehicle while intoxicated. Physical control is defined as being in the driver’s seat of a motor vehicle and having possession of or easy access to your car keys. It doesn’t matter that the car is parked and it doesn’t matter if the keys are in the ignition of the car or are sitting on the seat next to you. As long as the keys are readily accessible to you while you are intoxicated in the driver’s seat, you may be convicted of being in physical control of the vehicle while intoxicated.

Do I have the right to talk to an attorney before I give a sample?

Ohio law states that a “good faith request” for counsel before the administering of a chemical BAC test from an individual under arrest for driving under the influence does not constitute a refusal of the test if the delay faced by the request will not “unduly or unreasonably” delay the administering of the test. Whether or not there is an undue or unreasonable delay is a matter for the jury to decide. However, while Ohio does have a statute authorizing you to have direct access to a lawyer immediately upon arrest and detention, the courts of Ohio have held that by asking for an attorney before submitting to a chemical BAC test, the driver effectively refused to submit to the test. The penalties for refusing a chemical BAC test have been laid out above but in summary, since Ohio is an implied consent state, by refusing to take the chemical BAC test, you will be subject to a longer administrative license suspension and if you’ve been previously convicted of an OVI in the last six years, the officer can still perform the test anyway, despite your refusal.

In addition, in a case recently upheld by the Court of Appeals the driver asked for counsel multiple times, both before and after taking the chemical BAC test, but was denied by the law enforcement officers. Despite this violation of her right to an attorney, the court held that the defense counsel had no right to inform the jury that the law enforcement officer had prevented her from access to a lawyer before taking a chemical BAC test. She was not allowed to use this factor in her arrest to bolster her case.

While Ohio statutes give you access to an attorney immediately upon arrest for a private consultation, the court system has not been finding that this immediacy requires access to occur before the taking of the chemical test.  Therefore, it is simpler to assume that you will not be allowed access to an attorney before consenting to give a sample.

Do I have to give a blood or urine sample?

Ohio has implemented an implied consent law. This means that the state considers all drivers to have implicitly agreed to submit to chemical tests if stopped by a law enforcement officer who suspects the driver to be under the influence of drugs or alcohol. A law enforcement agency decides which of the tests its officers will administer (blood, breath or urine). While some of the tests require a blood or urine sample, most agencies use Breathalyzers to indirectly test your blood alcohol concentration. If the officer that stops you wants to test with a Breathalyzer then you will not have to submit a blood or urine sample. However, you will be required to give a blood or urine sample if necessary to perform the test. Otherwise, it will be determined that you refused to submit to the chemical test and you will face all the penalties attached to that offense (such as a longer administrative license suspension).

Only certain professionals are authorized to draw your blood for a field sobriety test. These professionals include physicians, registered nurses, emergency medical technicians or paramedics, or qualified medical technicians. In other words, only certain health care officials are permitted to draw your blood, not the officer who stopped you. Even if that person is authorized to draw your blood, they may refuse to do so if in that person’s opinion, your life or health would be endangered by the withdrawing of blood. Therefore, if you’ve been in an accident and have lost blood, the paramedics can refuse to draw your blood for testing even if the police suspect you were driving under the influence. While the officer is not permitted to draw blood for a chemical test, he or she is not prohibited from taking a breath or urine specimen from a driver suspected of driving under the influence if necessary to conduct the test.

Do I have to submit to a field sobriety test?

No, you do not have to submit to a field sobriety test. You may refuse the tests and if you are driving under the influence, it might be in your best interest to do so. If you suspect you will fail the tests it behooves you not to take them. The results of these tests can be used as evidence against you if you are arrested for drunk driving and if you fail the coordination tests, the officer will arrest you for driving under the influence. Most police cars record video evidence of all traffic stops. It does not help your case to be seen on video failing the sobriety tests.

My suspension is completed. How do I get my license reinstated so I may return to full driving privileges?

In order to get your full driving privileges returned, several conditions need to be fulfilled. You must pay a license reinstatement fee of $475. The registrar of motor vehicles has examined you and found you to be qualified to operate a motor vehicle. You will need to complete a course of remedial driving instruction and within this program, twenty five percent of the hours scheduled must be covering the use of alcohol and drugs and the subsequent operation of motor vehicles. You will also need show proof of insurance and maintain insurance on your vehicle. If your vehicle has been impounded you will also need to pay a $100 fee to have your vehicle registration reinstated. When these conditions have been fulfilled, you will be eligible to drive with full privileges.

I was suspended from driving after an OVI conviction. Now they have arrested me for driving while under this suspension. What sort of penalties will I face?

Driving under an OVI suspension is a first-degree misdemeanor. If you are arrested for driving under an OVI suspension, the court is authorized to order that your vehicle be immobilized and your license plates be impounded. How long you will lose use of your car depends on how many times you have been caught driving under an OVI suspension. If this is your first offense then your vehicle will be immobilized and the license plates impounded for thirty days. Should you drive under this vehicle immobilization period, the court will take your vehicle permanently as a forfeiture. In addition to vehicle immobilization, on your first offense you will also face a fine ranging from $250-$1000, at least three days of jail time (unless the court decides the jails are too full and you could not serve your sentence within 6 months of your arrest. In that case the court will sentence you to house arrest for anywhere between 30 days and 6 months) and a license suspension not exceeding one year. For a second offense you will face at least 10 days of mandatory jail time (or 90 days to one year of house arrest), sixty days of vehicle immobilization and license plate impoundment, a fine of $500-$2500 and a license suspension not exceeding one year. If this is your third or more offense within six years then you will be sentenced to at least 30 days of jail time with no possibility of house arrest, a fine of $500-2500, a license suspension not exceeding one year and the court will take your car permanently as forfeited. However, it must be noted that the penalties of vehicle immobilization and forfeiture are only applicable if the car you were driving under DUI suspension was registered in YOUR NAME. If you were driving a friend or relative’s car then they could face wrongful entrustment charges (see below) but the car would not immediately be immobilized or forfeited due to your offense. If your car is forfeited you are prohibited from registering any other car in your name for five years. Driving under a OVI suspension is a six point offense so you could also be facing an additional license suspension from the BMV called a “twelve point suspension” if with these additional points you now have a sum of at least 12 on your driving record.

If your license has been permanently suspended as a result of your OVI convictions and you are caught driving, you will be charged with a third degree felony.

I am an upstanding driver with a clean driving record. However, I let my friend/relative drive my car knowing his license was suspended/that he was intoxicated. Will I face charges?

You will face charges for letting someone you know has no valid license drive your car. This is called wrongful entrustment. Wrongful entrustment is a first-degree misdemeanor. A court can charge you for wrongful entrustment if you knew or had reasonable grounds to believe that the person who was borrowing your car should not be driving (i.e., their license is suspended, their car is immobilized or forfeited, they have been drinking or doing drugs, etc). Such reasonable cause for knowing he was driving under the influence would be occupying the car together at the time of the offense. Evidence of reasonable cause to believe that his license was suspended would be the two of you residing in the same household and you, as the offender in this case, knowing or having reasonable cause to believe that your friend had committed a violation that could result in a suspension. You will face a license suspension of up to a year whether this was your first, second or third wrongful entrustment offense. Since it is your first offense the court can order your vehicle immobilized and your license plates impounded for thirty days. If this was your second offense your car would be immobilized and your plates impounded for sixty days. If this were your third offense, your car would be forfeited.

I am under 18 and I was arrested for buying alcohol with a fake I.D. What sort of penalties might I face?

By purchasing alcohol under the age of 18 with someone else’s license or an altered driver’s license, you have violated the liquor law. Your license will be suspended for one year and you will have to pay a $40 license reinstatement fee. If you have altered your driver’s license in order to appear to be over 21 then you will have to retake the driver’s license examination. You have also violated the liquor law if you have a valid driver’s license and you let an underage person use it to buy alcohol illegally. You have the right to appeal the license suspension but must file the petition within twenty days of receiving the notice that your license has been suspended. The scope of the appeal will be limited to the following issues: whether the court did find that the offender had displayed a driver’s license as proof that he or she was of sufficient age to purchase alcohol, knowing that it was fictitious or altered, and whether or not he or she was actually underage to purchase alcohol at that time. If the court finds against you, you will have to pay all court costs of your appeal. If the court finds that there was error made in your suspension sentence then the money for the appeal will come out of the county treasury where the appeal was held.

I was convicted outside of Ohio for DUI. Will I face any penalties in Ohio for this charge since it is my state of residence?

Yes, you will face certain penalties within Ohio for your out-of-state conviction. If you are convicted of driving under the influence or using drugs and the charges are similar to an Ohio DUI or drug offense then the Ohio BMV will suspend your license for six months. You are entitled to an administrative hearing on this matter if you wish to challenge the suspension. You need to request the hearing within 21 days of receiving the notice of suspension. If you are unable to appeal the suspension then you must wait until the period of suspension and then you may pay $30 to get your license reinstated and your driving privileges restored. Even if your driving privileges are suspended, you can apply to the state court that convicted you for driving privileges. If your attorney can reduce your DUI charge then you might not face an out-of-state suspension.

I’ve been convicted of an OVI and my license has been suspended. However, it will be very inconvenient to not be able to use my car. How will I get around? How will I get to work? Is there any way I can use my car with my driver’s license suspended?

Obviously you do not want to drive while you are under a DUI suspension. Should the police catch you doing it, they will arrest you and the court will charge you with driving under a DUI suspension. You can find the penalties for such an offense listed above.

Your best option is to apply to the court for limited driving privileges. You must file a petition with the court within 30 days after your initial court appearance. You CANNOT be granted limited driving privileges if you’ve been convicted of three or more DUI charges or have refused three chemical BAC test requests within the last six years. The court cannot grant limited driving privileges for a certain period of time depending on your prior OVI convictions and your attorney would know best whether or not you are eligible.

The court will grant limited driving privileges for only the following reasons: occupational, educational, vocational, or medical purposes; taking the driver’s license exam; and attending court-ordered treatment. Therefore, if you need your car in order to get to your college classes, or to get to your job or chemotherapy sessions, you have a good chance at being awarded limited driving privileges. But if your CDL has been suspended then you CANNOT be granted limited driving privileges to operate a commercial vehicle even though it’s an occupational purpose.

Should the court agree to give you these privileges, you will only be able to drive for the purposes, times and to the places the court mandates. A required condition of receiving limited driving privileges is using restricted license plates. The court can also impose any other reasonable conditions on your driving such as the use of an ignition interlocking device (if you have not already been told to use one by the court for your DUI). For a third- or fourth-time OVI offender the court may require as a condition of limited driving privileges that there be no consumption of alcohol. If the offender has previously been convicted of an OVI felony, the court WILL make it a condition for limited driving privileges. In order to ensure there is no alcohol consumption, the court will require that the offender use a SCRAM bracelet. Any consumption of alcohol will be cause for revocation of the privileges. For a DUI offense, they are yellow with red letters and easily differentiated from the normal Ohio blue and white license plates. If you’re a juvenile desiring these limited privileges but don’t need them for educational, treatment, or employment reasons, then the court could allow limited driving for the purpose of practicing driving with your parents during the period of suspension. However, if this is the purpose for which the court is granting you privileges then you will only be allowed to drive when a parent with a valid driver’s license is in the car’s passenger seat. The court cannot grant limited driving privileges during any suspension imposed by the BMV. So if you’re looking to get limited driving privileges over your administrative license suspension or any other BMV-imposed suspension, you are out of luck unless you apply to a court of record in your county of residence. However, take note that the BMV also has restrictions on when limited driving privileges will not be granted.


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