DUI Issues for Dayton Attorney

Read More About Ohio Driving Laws and Related DUI Issues from Our Experienced Dayton DUI Attorney

DUI Issues

The U.S. has a low traffic fatality rate (drunk , as well as sober) and is a very safe nation in which to drive. And it's been getting safer for decades. There is now only about one death (including the deaths of bicyclists, motorcyclists, pedestrians, auto drivers, and auto passengers) per fifty million vehicle miles traveled. Alcohol-related traffic fatalities have dropped from 60% of all traffic deaths in 1982 down to 41% in 2002 (the most recent year for which such statistics are available). Alcohol-related traffic fatalities per vehicle miles driven has also dropped dramatically -- from 1.64 deaths per 100 million miles traveled in 1982 down to 0.61 in 2002 (the latest year for which such statistics are available). Alcohol-related crash fatalities have fallen 1/3 since 1982, but traffic deaths NOT associated with alcohol have jumped 43% during the same time. Despite these numbers, the Ohio legislature has continually increased the penalties for driving under the influence, which make it more difficult for a Dayton attorney to help their clients, but not impossible.

In 1982 the State of Ohio declared war on drunk drivers with the enactment of Senate Bill 432. Grants subsidized an increased law enforcement presence and task forces were formed to satiate the public desire for stricter laws regarding drunk driving. Again, in 1990, the Ohio legislature voted for increased penalties for D.U.I. convictions and lowered the prohibited alcohol levels for juveniles and commercial drivers. The penalties were again increased in 1993 adding impoundment of licenses, immobilization and forfeiture of vehicle provisions to the law. In 1994 it became law that occupational privileges (your right to drive back and forth to work) would be denied any offender with three or more convictions within a prior seven year period. In 1996 the State legislature made the fourth or higher D.U.I. conviction a felony and allowed courts to consider convictions as old as six years to count as prior convictions, and as a Dayton DUI attorney we had to be aware of each law enacted to help our clients. Ohio bowed to federal pressure and reduced the prohibited alcohol level to .08% and has increased the penalties for any driver testing above a .17%. The clear message sent by the law is: "DON'T DRIVE UNDER THE INFLUENCE IN OHIO!" It is also clear that if you find yourself charge with a D.U.I you need good legal representation. This web site is designed to give you information on the charge of Driving Under the Influence and provide you some insight on how law enforcement approaches the problem of impaired drivers.

WHAT IS OHIO'S D.U.I. LAW?

In Ohio, driving under the influence includes driving while intoxicated with too much alcohol, or driving under the influence of a drug of abuse. The traditional offense is "driving under the influence of alcohol" (DUI). Ohiohas also enacted a second, so-called "per se" offense: driving with an excessive blood-alcohol concentration (.08%). In Ohio, BOTH offenses are usually charged.

A jury instruction which is given at every D.U.I. trial states,

• UNDER THE INFLUENCE. "Under the influence means that the defendant consumed some (alcohol)(drug of abuse)(alcohol and a drug of abuse), whether mild or potent, in such a quantity, whether small or great, that it adversely affected and appreciably impaired the defendant's actions, reactions, or mental processes under the circumstances then existing and deprived him of that clearness of intellect and control of himself which he would otherwise have possessed. The question is not how much (alcohol)(drug of abuse)(alcohol and a drug of abuse) would affect an ordinary person. The question is what effect did any (alcohol)(drug of abuse)(alcohol and a drug of abuse), consumed by the defendant, have on him at the time and place involved. If the consumption of (alcohol)(drug of abuse)(alcohol and a drug of abuse) so affected the nervous system, brain, or muscles of the defendant so as to impair, to an appreciable degree, his ability to operate the vehicle, then the defendant was under the influence.
  
  

Driving with a prohibited concentration of alcohol in your blood breath or urine is a separate offense under Ohio law. If you have ever heard anyone refer to "blowing above a .08" they are referring to the most common test administered by law enforcement today, the breath test. Revised Code section 4511.19 sets forth the elements of Ohio’s tough DUI law (Note: The Ohio legislature has changed the universally understood “DUI” with the acronym “OVI). In Ohio, the legal limit for persons 21 and over is any of the following:

• .08 or more by weight of alcohol in blood;
• .08 of one gram or more by weight of alcohol per two hundred ten liters of breath;
• .11 of one gram or more by weight of alcohol per one hundred milliliters of urine;
• .17 of one per cent or more by weight of alcohol in the person’s blood:
• .17 of one gram or more by weight of alcohol per two hundred ten liters of the person’s breath:
• .238 of one gram or more by weight of alcohol per one hundred milliliters of the person’s urine.
  

The .17 threshold is used to enhance the penalties for “higher test” offenders, doubling the jail time at each tier of the sentencing.

As can be seen from the definition provided to the jury, some subjectivity does come into play. A skillful prosecutor will attempt to narrow this definition. It will be up to your attorney to demonstrate to the jury that your ability to drive was not impaired at the time of arrest. It is important to understand that you can be in violation of the law by simply being under the influence. The officer does not need to test your blood breath or urine if he/she believes that sufficient evidence exists for your arrest. Current Ohio law makes driving with above a .08% concentration of alcohol a separate offense for which you can be convicted. The law prevents "operation" of a "vehicle, streetcar, or trackless trolley" "anywhere in the state." "Operation" of the vehicle can include pulling over to the side of the road to "sleep it off" while the car is running and can include simply sitting behind the wheel of the vehicle with the motor off and the key in the ignition. Besides a car, truck or van a person can be found guilty of D.U.I. in Ohio by "operating" a bicycle, a snowmobile, or a golf cart. Unlike other laws which require operation of the vehicle on public highways or areas open to the public, DUI. convictions can come "anywhere in the state." Convictions have been upheld for operation on a private shopping center parking lot, a private driveway or your own property.

Ohio (In-State) Drug Conviction

If you are convicted of a drug offense as defined in O.R.C. 2925, a court can suspend your license from six (6) months to five (5) years.  The good news is that Ohio allows you to apply for driving privileges through the court that issued the suspension.  To reinstate you must serve your suspension period and pay a reinstatement fee of $30.00 to the BMV.

Out of State DUI or Drug Conviction

If you are convicted of an out-of-state DUI offense or a drug offense similar to the type of offense that Ohio suspends licenses for, you will receive a six month suspension from the Ohio BMV. If you wish to challenge this suspension you must request an administrative hearing in writing within twenty-one days of the date of the suspension notice. This suspension requires payment of a $30.00 fee for reinstatement and will run (unless challenged) for six months from the date of the notice. The good news is that Ohio now allows you to apply for driving privileges through the court that issued the suspension.  If your attorney can get a reduction of your DUI/OVI charge to one of reckless operation, you will not face an out-of-state suspension.

Alcohol/Drug, Habitual Use Suspension
R.C. 4507.08(D), O.A.C. 4501:1-1-16(B), 4501:1-1-18

If you are convicted three or more times within the preceding three year period of a drunk driving offense your license will be suspended. In order to reinstate your license you will be required to attend a rehabilitation program approved by the Alcohol and Drug Addiction Services Board. The program must attest to a continuous 6 months of sobriety and must contain a statement from a licensed physician, a licensed psychiatrist or a certified (CCDC2 or CCDC3) alcoholism counselor attesting that the above requirements have been met. If a person receives a subsequent conviction within one year of restoration, the previous suspension will be reimposed.

THE BREATH TEST: WHAT IS THE LAW?

When an individual is taken to the police station he or she will be asked to submit to a blood, breath or urine test. The suspect does not have the right to pick which test he or she will comply with. By far the most common method for testing is the breath test. Law enforcement prefer this test because it is convenient and immediate results are obtained. Competent trial counsel will be familiar with how the breath test is conducted by the officers in the jurisdiction and have a familiarity with the devise used to conduct the testing. The Department of Health is responsible for devising the testing method for the admissibility of blood breath and urine tests. These rules are found in the Ohio Administrative Code at OAC Chapter 3701-53. Experienced counsel will also be familiar with the rules as set forth in the OAC. For a great explanation of how the breathalyzer works, please check out this article by Craig C. Freudenrich, Ph.D.

O.R.C. 4511.19(D) sets out a three-hour limitation on the collection of your blood, breath or urine. This three-hour period begins at the time of the violation not at the time of arrest. If the test is not conducted within the three-hour period it is inadmissible to support a prosecution under O.R.C. 4511.19.(A)(2)-(4). Your attorney should ask you at the initial interview when you were pulled over and compare this to the time of arrest noted by the officer in his/her report. O.R.C. 4511.19(D) also requires that the breath test be conducted on an approved breath-testing devise, by an operator qualified under the Ohio Administrative Code. Calibration of the devise can only be done by a senior operator. In addition, the person suspected of driving under the influence must be observed for twenty minutes prior to taking the test. This observation period is to make sure that there is not any "oral intake" by the suspect. An experienced attorney will know the rules of this observation period and will know how to ascertain if there was compliance by reviewing the discovery provided by the prosecution. Also, the attorney will know that the breath testing devise must be "subject to an instrument check" no less frequently than once every seven (7) days." If the state fails to demonstrate that the equipment was properly tested then it is appropriate for the test to be suppressed. The use of the alcohol-based solution used in the machine must not be older than three months from its first date of use and must be kept under refrigeration after its first use, when not being used. Similar rules are set out in the Administrative Code for blood and urine testing. Make sure to get an attorney who can discuss these rules with you.

There is no denial of a constitutional right where a person under arrest for driving while intoxicated is denied the right to consult with counsel prior to determining whether to take a chemical test, pursuant to R.C. 4511.191. However, a person under arrest for driving while intoxicated has a statutory right pursuant to R.C. 2935.14 and 2935.20 to communicate with an attorney, and, where an exercise of such right is requested, the police must forthwith permit the arrested person to use facilities to make such communication. A good-faith request of an arrested person to exercise his statutory right, pursuant to R.C. 2935.20, to call an attorney, before submitting to a chemical test required by R.C. 4511.191, does not constitute a refusal to take such test where the delay occasioned by the exercise of the statutory right will not unduly or unreasonably delay the administering of the test. Whether a request to consult an attorney is made in good faith and whether the exercise of the right will unreasonably delay administering a chemical test are factual issues to be determined from the facts and circumstances involved. Siegwald v. Curry (1974), 40 Ohio App.2d 313: 10th District Court of Appeals for Franklin County (taken from the syllabus)

Charles M. Rowland II, a recognized Dayton attorney,  maintains an after-hours number that you can contact if you find yourself involved in a DUI arrest situation. That number is (937) 776-2671.

1. The Defendant was not "operating"a "motor vehicle" on a "public highway."

2. The Defendant was not "under the influence."

3. The Police Officer improperly stopped the Defendant.
a. The Officers did not have an "article suspicion" legally sufficient to stop the defendant.
b. The stop was made pursuant to an unconstitutional roadblock.

4. The Police Officer improperly arrested Defendant.
a. The Officers lacked probable cause sufficient to justify an arrest.
b. The Defendant did not commit an illegal act in the presence of the officer.
c. The Officer lacked jurisdiction to make the arrest.
d. The arrest was the result of an unlawful home entry.
e. the arrest was the result of an unlawful search and seizure.
f. The Officer who made the arrest had not complied with the statutory police qualifications.

5. The Police Officer did not give the Defendant adequate warnings.
a. Miranda warnings
b. Warnings required by statute of limitations.

6. The Defendant has an affirmative defense.
a. Necessity
i. Injury or threat of injury to human or animal life
ii. The imminent danger of injury
iii. The danger required that the defendant drove to avoid the injury
b. Duress
i. The offense was committed to avoid serious injury or death
ii. No alternative existed to avoid the serious injury or death
iii. The harm avoided by the commission of the offense was greater than the harm produced by the defendant
iv. The defendant had a good faith belief that the commission of the offense was necessary to avoid serious injury or death
v. The defendant's belief was reasonable under the circumstances
vi. The defendant did not create the situation that imposed the threat of serious injury or death.
c. Entrapment
d. Involuntary Intoxication
i. The defendant became intoxicated through force or threat of force

7. Defendant's right to a speedy trial was violated.

Driving Under Suspension

If you find yourself charged with a Driving Under Suspension or D.U.S. offense, you will encounter one of the most confusing and overwhelming areas of Ohio law. We know how to defend you on a DUS charge. Here are a few of the ways that you can get suspended in Ohio. Click on the link for more information, or contact attorney Charles M. Rowland immediately here, or by calling 1-888-ROWLAND. You can get your life back!

Ohio's Bureau of Motor Vehicles (Frequently Asked Questions)

12 Point Suspension
Automatic License Suspension (A.L.S) Testing Over .08%
Automatic License Suspension (A.L.S.) Refusing a DUI Test
The Financial Responsibility Act
In-State Drug Conviction
Out of State DUI or Drug Conviction
Alcohol or Drug Habitual Use Suspension
Non-Compliance Suspension (the catch-all suspension)
Court Suspensions (Traffic Ticket Suspensions)
License/Bond Forfeiture
Failure to File an Accident Crash Report within 24 Hours
Security Suspension
Judgment Suspensions
Non-Resident Violator Compact
Medical Suspension or Medically Restricted License
Registry Suspension
Juvenile Suspensions (encompassing more than one type of suspension)
Physical Control Suspensions
Violation of Restriction Suspension
Warrant Block Suspensions

WHAT IF I AM UNDERAGE?

O.R.C. 4511.19(B) addresses prohibited alcohol level for those under the age of 21. If you are under 21 you cannot have a concentration of .02% but less than .08% by weight of alcohol in your blood, with a concentration of at least .02 grams but less than .08 grams by weight of alcohol per 210 liters of breath, or a concentration of at least.028 grams but less than .14 grams by weight of alcohol per 100 milliliters of urine. This law was meant to address that group of people who have a disproportionately high level of alcohol-related accidents.

WHAT IF I AM A TRUCKER?

For operator's of a commercial vehicle requiring a CDL it is a criminal offense to drive (not operate) a commercial vehicle with a detectable amount of alcohol or controlled substance in the blood, breath or urine or with an alcohol concentration of .04% or more. In addition, if the concentration is high enough, truckers face the possibility of being prosecuted under the standard D.U.I. law. Pursuant to O.R.C. 4506.15(F) it is a criminal offense for a commercial driver to refuse to submit to alcohol or drug testing. If the driver refuses his/her CDL will be administratively suspended by the Bureau of Motor Vehicles and/or the U.S. Dept. of Transportation.

In cases where the driver merely has a "detectable" level of alcohol, for instance on his breath, but not enough to meet the .04% standard, the driver is immediately placed out of service for twenty-four hours. If the driver is convicted of a D.U.I. offense or of the offense of having a concentration of .04% or higher his/her penalty is a one-year suspension of his/her CDL. A second offense is a lifetime suspension or a suspension as determined by the U.S. Department of Transportation.