Rocky River DUI Lawyers
- Michael O'Shea:
Since most people already know that "first offender" DUI defendants are
suppose to get three days in jail, and since most DUI cases are hard to
beat at trial, some might think that a lawyer is useless once one has
been arrested and charged with a DUI offense. However, this is very
untrue. Attorneys who handle DUI cases are aware of the DUI issues and,
generally, how to handle these issues for their clients.
In Ohio, alcohol related offenses include BOTH:
1. driving under the influence of alcohol or a drug of abuse (often referred to as "OVI"); and
2. driving over the legal limit (often referred to as "BAC").
One can be convicted to be "under the influence" if a jury determines that:
"the defendant consumed some alcohol or 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."
Only lawyers and judges could come up with such a long and convoluted definition. However, this is generally the instruction given to juries when they deliberate in a DUI/DWI trial.
In Ohio, even if you are not "under the influence," you may still be guilty of a alcohol related crime if you are "over the legal limit." Driving over the legal limit is not the same as driving under the influence" (although the two may certainly occur at the same time and one may be charged and convicted of both). As you are probably aware, a person can be over the legal limit without that level of alcohol impairing the person's ability to drive (or do other things) appropriately. Conversely, a person can be under the legal limit and still have that level of alcohol impair that person's ability to drive (or do other things).
In Ohio, the legal limit for persons 21 and over is any of the following:
• .08% (by weight) for blood, or over
• .08 of 1 gram (by weight) per 200 liters of for breath, or
• .14 of a gram (by weight) per 100 milliliters of urine.
• For persons under 21 it is even less (e.g. .02% (by weight) for blood.)
It is possible to be charged with both being under the influence and driving over the legal limit, and it is possible to be convicted of both. However, if one is convicted of both (for the same incident), then he can only be sentenced for one. Most times a person is arrested for a DWI offense, they are charged with both. This way the police and the prosecution have two shots at a conviction.
- Mark Kremser:
In Ohio, it is unlawful for a person to operate a car,
truck, motorcycle, or commercial vehicle if:
- The
driver's ability to safely operate the vehicle is impaired by the effects
of alcohol, illegal drugs, prescribed medications such as painkillers, or
even over-the-counter medications such as antihistamines; or
- The driver
is intoxicated at a level above established DUI standards, such as
blood-alcohol concentration (BAC) of. .08.
Field Sobriety and
Chemical Tests
When a law enforcement officer makes a vehicle stop and
suspects that the driver may be intoxicated, the officer will conduct a
"field sobriety" test on the driver, and may ask for his or her
consent to some form of chemical test for intoxication.
Field sobriety tests usually involve a police officer
asking a driver to perform a number of tasks that assess any impairment of the
person's physical or cognitive ability. Examples of field sobriety tests
include having the driver walk a straight line, heel to toe; having he or she
recite the alphabet backwards; and the officer's use of the "horizontal
gaze nystagmus" (eye and penlight) test.
Chemical tests can be conducted during the vehicle stop,
using a Breathalyzer that measures a driver's blood-alcohol concentration
(BAC), or at a hospital, where urine and blood tests can be performed. Many
states allow a driver suspected of DUI to choose which type of chemical test is
administered.
Refusing a Chemical Test:
"Implied Consent" Laws
Ohio has an "implied consent" law that require
vehicle drivers to submit to some form of chemical test, such as breath, blood,
or urine testing, if suspected of DUI. The logic behind such laws is that, by
assuming the privilege of driving a vehicle on state roads and highways,
drivers have effectively given their consent to DUI testing when a police
officer reasonably believes the driver is under the influence of alcohol or
drugs. If a driver refuses to submit to such testing, implied consent laws
carry penalties such as mandatory suspension of a driver's license, usually for
six months to a year. Often, license sanctions for test refusal are more harsh
than those imposed after DUI test failure.
Per Se" and
"Zero Tolerance" DUI Laws
All states have DUI laws that deem "per se
intoxicated" any driver with a blood-alcohol concentration (BAC) above a
set limit. In Ohio, this means that drivers with a BAC at or above .08 are
intoxicated in the eyes of the law, and no additional proof of driving
impairment is necessary.
Keep in mind that a driver may still be arrested and
convicted for DUI without proof of "per se" intoxication, when other
evidence of impaired driving is shown. For example, a driver with a .06 BAC
level can be found guilty of DUI if an arresting law enforcement officer
testifies that he observed the driver's vehicle swerving badly, and that the
driver exhibited both slurred speech and severe inattention during questioning
after a vehicle stop.
DUI Convictions: Criminal
Penalties
A DUI conviction may carry criminal penalties including
fines, jail time, probation, and community service. Some state laws impose
certain minimum penalties for first-time offenses, then designate increased
penalties for each offense thereafter. Severity of criminal penalties will vary
according to the circumstances of the offense, including:
- Whether
the driver has a history of DUI violations;
- Whether
the driver was operating a commercial vehicle at the time of the DUI;
- Whether
the DUI violation occurred while there was a child in the vehicle;
- Whether
the DUI violation occurred simultaneously with another dangerous moving
violation, such as reckless driving;
- Whether
the DUI violation involved a car accident in which property damage
occurred;
- Whether
the DUI violation involved a car accident in which another person was
injured or killed; and
- Whether
the driver was under the legal drinking age at the time of the DUI
violation.
DUI Arrest and
Conviction: Driving Privilege Penalties
In addition to potential criminal penalties, a
DUI arrest or conviction will have an immediate negative impact on driving
privileges.
Ohio law allows the BMV to immediately suspend
the driver's license of any person operating a vehicle with a BAC above the
state limit for intoxication, or any driver who refuses to submit to BAC
testing. The driver's vehicle may also be confiscated or impounded, and the DUI
offender will likely incur significant administrative costs. This loss of
driving privileges can normally occur even before a DUI conviction. A
DUI arrestee to obtain a temporary license and request an administrative
hearing at which he or she may argue against license suspension, or for
restoration of limited driving privileges.
As with criminal penalties, the impact of a DUI
arrest or conviction on driving privileges will vary according to the driver's
history of DUI violations and the severity of the offense. An increasingly
popular DUI penalty, especially for repeat offenders, is mandatory installation
of an "ignition interlock" device on the offender's vehicle. This
breath-testing device measures the vehicle operator's BAC, and will prevent
operation of the vehicle if more than a minimum amount of alcohol is detected,
such as BAC level of .02. Where this punishment is utilized, most states
require the DUI offender to pay costs of installation, rental, and maintenance
of the ignition interlock device. Rental fees alone can amount to as much as
three dollars per day, so a DUI offender's expenses can add up quickly when an
ignition interlock device is required.
Plea Bargains
in DUI Cases
Due to recent law enforcement trends that focus
on preventing DUI by penalizing offenders harshly, most district attorney
offices refuse to negotiate plea bargains in DUI cases. This is especially true
if evidence of the violation is strong.. However, in rare cases a DUI charge
may be reduced to a lesser offense like reckless driving or an "open
beverage" violation.
Getting an
Attorney's Help in a DUI Case
If you or a loved one are arrested for DUI, you
may need the assistance of an experienced DUI defense lawyer. Unlike civil law
cases, in which money or property may be at stake, people charged with DUI may
face jail time and driver's license revocation. A skilled attorney who
specializes in defending DUI cases will evaluate all the evidence, including
the procedure and results of any field sobriety and chemical tests, to ensure that
your legal rights are protected.
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