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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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