DUI OR OVI LAW IN COLUMBUS AND OHIO
What’s in a Name
Under Ohio law, DUI is now known as OVI. Prior to that, it was called OMVI. Other states may call it DWI. From a practical perspective, there is no real difference. At least not in Ohio. They all describe essentially the same thing.
State, City, Town, Village
The Ohio Revised Code prohibits DUI or OVI in Section 4511.19. Anyone pulled over for OVI by a Trooper of the Ohio State Highway Patrol is likely to face charges under 4511.19. And many folks pulled over by the City of Columbus Police will be charged under this section. But that is not always the case.
Ohio Revised Code is not the only place to find DUI or OVI offenses. Local cities, towns, and village often have their own laws, codified as “ordinances” or codes. Generally, these codes are the same as the Ohio Revised code. Someone charged under a local or city ordinance may see a different code reference on their traffic ticket.
Here is a list of various city and local ordinances around central Ohio. Each charges OVI, but just under a separate codified ordinance.
There are many other jurisdictions with their own local codes and ordinances. But for the most part they are the same. They all prohibit OVI, and they all carry essentially the same punishment. But it is also important to note that there are some nuances that might be important in a given case. For instance, if someone is charged in the City of Columbus and has a prior conviction for OVI, it may be treated differently than if they were charged with the same offense under the Ohio Revised Code. As experienced Columbus, Ohio OVI attorneys, we always make sure to check the code section to make sure there are not nuances that negatively impact an OVI client’s outcome, results, driver’s license suspension (DRS), etc.
Impaired, Per Se, or Both
There are two general ways to be charged with OVI or DUI in Ohio. The first is known as an “impaired” violation under 4511.19(A)(1)(a). The second general category of OVI or DUI under Ohio law is known as a “per se” violation under 4511.19(A)(b),(c),(d),(e),(f),(g),(h),(i), or (j).
These two separate categories cause the most confusion for people grappling with OVI charges. And for good reason. It can seem complicated, particularly for someone reading the Ohio Revised Code or Columbus City Code for the first time after their first offense DUI or OVI. But it does not have to be complicated, and there is a simple explanation. The Columbus OVI and DUI attorneys at Palmer Legal Defense are always available to our clients to help them navigate the many complexities of the law.
DUI Impaired and Per Se Violations – Here’s how it works.
An “impaired” DUI means just that—someone is accused of operating a vehicle while impaired or “under the influence of alcohol, a drug of abuse, or a combination of them.” R.C. 4511.19(1)(A)(1). This means that the prosecuting attorney must prove beyond a reasonable doubt that the person was (among other things) “under the influence” and should not be driving.
A “per se” OVI or DUI is a bit different. This offense requires the prosecutor to prove that a person was “operating” or driving a car or vehicle with too much alcohol (or other drug of abuse) in their blood, breath, or urine. This means that the person had a prohibited “concentration” of alcohol in their system. The most common per se DUI involves a breath test “above the legal limit.” In Ohio the current prohibited concentration is .08 or above. But this is only for breath test results. To make it more confusing, the limits are chemically different for urine, whole blood, or blood serum and plasma.
The City of Columbus Code, the Ohio Revised Code, and other ordinances spell out the limits for a prohibited breath, blood, or urine concentration. And the DUI laws make it more serious for “high” tests. For breath, high tests are .17 and above.
These “per se” DUI crimes were designed to target individuals who have a high tolerance. In other words, they can drink a large amount alcohol, but not seem impaired. But who doesn’t appear to be under the influence (or in fact may not be under the influence) can still be charged and convicted of DUI or OVI for driving with a prohibited concentration or “per se” DUI.
Here’s a breakdown of the Code Sections for low and high blood, breath, and urine tests:
“Low” DUI Tests
A person cannot drive or operate a motor vehicle if:
4511.19(A)(1)(b). Whole Blood. The person has a concentration of eight-hundredths of one per cent or more but less than seventeen-hundredths of one per cent by weight per unit volume of alcohol in the person’s whole blood.
4511.19(A)(1)(c). Blood Serum or Plasma. The person has a concentration of ninety-six-thousandths of one per cent or more but less than two hundred four-thousandths of one per cent by weight per unit volume of alcohol in the person’s blood serum or plasma.
4511.19(A)(1)(d). Breath. The person has a concentration of eight-hundredths of one gram or more but less than seventeen-hundredths of one gram by weight of alcohol per two hundred ten liters of the person’s breath.
4511.19(A)(1)(e). Urine. The person has a concentration of eleven-hundredths of one gram or more but less than two hundred thirty-eight-thousandths of one gram by weight of alcohol per one hundred milliliters of the person’s urine.
“High” DUI Tests
4511.19(A)(1)(f). High Whole Blood. The person has a concentration of seventeen-hundredths of one per cent or more by weight per unit volume of alcohol in the person’s whole blood.
4511.19(A)(1)(f). High Blood Serum or Plasma. The person has a concentration of two hundred four-thousandths of one per cent or more by weight per unit volume of alcohol in the person’s blood serum or plasma.
4511.19(A)(1)(f). High Breath. The person has a concentration of seventeen-hundredths of one gram or more by weight of alcohol per two hundred ten liters of the person’s breath.
4511.19(A)(1)(f). High Urine. The person has a concentration of two hundred thirty-eight-thousandths of one gram or more by weight of alcohol per one hundred milliliters of the person’s urine.
Under-Age and Commercial Driver’s License (CDL)
The levels for a “per se” offenses are even lower for drivers under the age of 21 and for those holding a Commercial Driver’s License (CDL). For under-age DUI’s, the limit for a breath test is .02. For CDL holders, the per se limit is .04.
Charged & Convicted of Both Offenses
Here’s the trick with per se and impaired offenses. The police can charge a person with both offenses—one for being impaired and one for driving while above the per se limit. A person can be convicted of both offenses. But the Court or Judge can sentence a person on only one of the offenses—either the per se or the impaired.
To Test or Not to Test
This is the most common question asked. It is probably the most debated “bar stool” topic across the country. It is also subject to the most confusion. And for good reason. There is no great bright line rule that applies to every situation.
To unravel the confusion, it is helpful to start with the basics. There are two ways to be charged with OVI or DUI in Columbus and Ohio. The first is an impaired case. The second is the per se case. It is helpful to understand the difference between these two offenses. But to keep it simple, there cannot be a per se charge without a chemical test result. The per se offense requires proof that a person was driving with a concentration of alcohol (or drugs) above the legal limit. Without a test, there can be no proof of a person’s concentration—whether it be blood, breath, or urine. In other words, without a test, one entire charge is eliminated. If nothing else, one less charge is better.
But, like anything else in DUI law, it is more complicated than that. Our Columbus DUI attorneys know that generally, it is legally and factually easier to defend a case if someone refuses the blood, breath, or urine test. Then there is no BAC above the legal limit. But it is not better if someone were able to pass the test and register a result below the legal limit. It gets more complicated if someone has a prior conviction for OVI or DUI. With a prior record, it can be an actual offense or crime to refuse the test.
And there are ramifications for refusing a chemical test. That decision can result in an immediate Administrative License Suspension (ALS). On a first offense (it gets worse of someone has prior convictions), the Ohio Bureau of Motor Vehicles (BMV or DMV) will suspend the defendant’s license immediately for one year. The police, acting on behalf of the BMV, will seize the person’s driver’s license and submit the appropriate paperwork for the suspension.
But there is an immediate 90-day ALS if the person takes the chemical test and registers a result above the legal limit.
The Columbus or Ohio police generally don’t make the refusal decision any easier. They are required to read a complicated form (BMV Form 2255) to the suspect that explains what will happen on a test or refusal. The problem is that the language used on this form is confusing, convoluted, and seemingly incomplete. The form does not provide vital information about the looming ALS suspension. And it specifically does not advise a suspect that the ALS will often terminate when they resolve their case in court. That means that the shorter 90-day suspension (which seems better) terminates and is often replaced by a different (but equal) 1 year suspension. In other words, it is often the case that a suspect will end up with a 1 year suspension even if they take the test.
This is nothing short of confusing. And it is not a decision anyone wants to make—impaired or not. It is obviously best not to be driving after consuming alcohol. But if someone finds themselves facing a decision about a breath test, the best advice is to consult with a qualified attorney before deciding. The decision is confusing and difficult even under the best of circumstances (not in a police department in front of a breathalyzer (BAC) machine). And there may be no right answer—only the best answer in a bad scenario.
The DUI attorneys at Palmer Legal Defense are available 24 hours a day, 7 days a week for such emergencies.
Administrative License Suspension (ALS)
This is an administrative suspension imposed by the Ohio Bureau of Motor Vehicles (BMV or DMV). This is generally a pre-trial suspension imposed for either taking a chemical test with a BAC above the legal limit or refusing to take a chemical test.
On first offense, the ALS suspension lasts 1 year for a refusal. On a first offense test above the legal limit, the ALS suspension lasts 90-days.The suspension period begins to increase exponentially depending on prior convictions and prior refusals.
The ALS suspension is the subject of much confusion. Our attorneys will take the time to explain the suspension and driver’s license ramifications in simple, understandable detail.
Penalties for DUI/OVI in Ohio
Generally, a DUI under Ohio law is a first-degree misdemeanor. This means that anyone facing a DUI conviction is facing possible punishment of 180 days in jail, a maximum penalty. There are certain mandatory penalties that a court or judge must impose on an OVI or DUI conviction. And, depending on a person’s prior record, there are possible administrative penalties that could result in forfeiture or immobilization of a defendant’s vehicle.
The mandatory minimum penalties depend on a defendant’s prior record. But here are the basics:
First Offense DUI.
3 (up to 180) Days in Jail or a 72 Hour Driver’s Intervention Program
1 (up to 3) Year Driver’s License Suspension
$375.00 to 1,075.00 Fine
Second Offense DUI.
10 (up to 180) Days in Jail
1 (up to 7) Year Driver’s License Suspension
$525 to $1,625.00 Fine
Third Offense DUI
30 (up to 365) Days in Jail
2-12 Years Driver’s License Suspension
$850.00 to $2,750.00 Fine
These minimum penalties are only the start. Punishment becomes much more severe if someone has a “high BAC” or breath test, resulting in “double penalties.”
And often courts or judges will impose a sentence beyond the mandatory minimum requirements, depending on local practice and circumstances of a case.
If a person has at least 4 prior convictions in a 10 year period (or 6 prior convictions in a 20 year period), a DUI or OVI case may be indicted and charged as a felony.
60 (up to 365) days in Jail or 60 days (up to 30 months) in prison
3 (up to life) Year Driver’s License Suspension
Vehicle Immobilization and Forfeiture
Certain DUI convictions can result in additional “administrative” sanctions (in addition to the standard jail, fine, and license suspension).
For instance, a DUI charge or conviction can result in a 90-day immobilization of the defendant’s vehicle used in the offense. This means that court personnel will either impound or arrange to place a “club” or other immobilization device on a defendant’s car for 90 days.
For 3rd offense (or more) convictions, a defendant’s vehicle may be subject to forfeiture to the government. In that situation, the defendant loses his car permanently.
PLEA BARGAINS AND NEGOTIATIONS
Not all DUI cases go to trial. In fact, most cases resolve with some sort of plea bargain. But this is not always a simple and easy process. In order to obtain a favorable plea resolution, it is often necessary to mount a strong defense and exploit all areas of weakness in the prosecutor’s case.
Sometimes these weaknesses are obvious. There may be a Fourth Amendment problem with the stop and arrest that may warrant a motion to suppress. Or perhaps the driver just does not look impaired on video.
But most of the time, the flaws in the prosecutor’s case are far more subtle. It takes a methodical and creative approach to identify and defend DUI cases. We have had cases that appear on their face to be “open and shut.” But upon a thorough review of the details and nuances, there is a strong (but not so obvious) defense.
It takes years of experience to identify and exploit the defense issues in a DUI case. And that is only the beginning. The next step is determining the best strategy to exploit the issues. Sometimes an aggressive, frontal assault is needed. But other times, a more subtle approach is best. This is where knowledge, experience, and creativity are essential.
Plea bargaining is an artform for criminal and DUI defense attorneys. There are many “moving parts” to the process. The strength of the case (or defense) is not the only consideration. The personalities of the law enforcement officer(s), the judge, the prosecutor, and the defense attorney can impact plea bargaining (for better or worse).
Different jurisdictions have different policies and practices regarding plea bargains in DUI cases. Some jurisdictions have policies that prohibit any plea bargains—the defendant either pleads guilty to everything or goes to trial. Other jurisdictions are far less strict, routinely reducing or dismissing DUI charges. Some jurisdictions have first-offender “forgiveness” programs or diversion programs. Others do not.
It’s crucial for attorneys to know the personalities, the policies, and the practices of any particular jurisdiction.
It is equally important for attorneys to identify the DUI client’s needs and problems before engaging in plea negotiations. Given the complex structure of DUI penalties and administrative sanctions, there are many variables. Individual clients may have different needs and goals. A client with a Commercial Driver’s License (CDL) may have different goals than a client who does not need a driver’s license at all. And some may care more about the punishment or penalties than possible record of a DUI conviction. An individual with multiple prior convictions does not have the same concerns as a first-time offender.
The criminal and DUI defense attorneys at Palmer Legal Defense take time to work with clients to identify all the relevant concerns to craft the best possible resolution for the individual. A great “textbook” plea bargain may look and sound good. But if the client loses a job as a result, the textbook resolution may be catastrophic.
There are too many variables to identify all possible plea resolutions or bargains in a DUI case. But there are some common “lesser offenses” that often result from plea negotiations.
Reckless Operation of a Motor Vehicle
A common plea bargain in DUI cases results in a “reduction” to Reckless Operation of a Motor Vehicle under Ohio Revised Code 4511.20 or Columbus City Code 2133.02.
Depending on various circumstances, Reckless Operation may be a minor misdemeanor (maximum possible fine of 150.00 and no possible jail) or a misdemeanor of the fourth degree (maximum possible fine of $ 250.00 and maximum possible jail of 30 days). It is considered a moving violation and carries 2 or 4 points.
Reckless Operation is not an “enhanceable” offense. This means that a conviction for Physical Control cannot be used to enhance a future DUI (should that happen) to a second or third or whatever offense. And there is no mandatory driver’s license suspension (but a court has the option of imposing a suspension).
The consensus is that “reckless op” is a favorable plea bargain. But there may be hidden problems. At the outset, the offense in the Ohio Revised Code does not just call this “Reckless Operation.” It is Operation in Willful or Wanton Disregard of the Safety of Persons or Property. That language sounds bad, and it often can have adverse impact on insurance coverage.
For instance, if there is an injury crash as a result of a DUI, insurance coverage may be essential to pay a damages claim. Generally, insurance adjusters do not like the terms “reckless” or “willful or wanton.”
The point is that plea negotiations must consider all the facts and circumstances. It is desirable to have an OVI reduced to reckless operation, but not if that means a driver will lose insurance coverage and be on the hook for an expensive damages claim or civil lawsuit.
But to be certain, a reckless operation is better than a DUI.
Another common plea reduction in DUI cases results in a “Physical Control” violation. This offense is codified in 4511.194 of the Ohio Revised Code as “Having Physical Control of a Motor Vehicle While Under the Influence of Alcohol.”
At the outset, this offense was designed to address the scenario where a person is “sleeping it off” in their car. In other words, the person is under the influence, in a vehicle, but not driving. Unlike DUI or OVI, this offense does not require proof of operation.
This was designed to clear up some confusion in the DUI law. Many folks were charged with DUI even though they were not driving. Many courts considered it to be “operation” if a person were in the car while impaired. There were many barroom discussions about throwing the keys under the car or out the window while “sleeping it off.”
Irrespective of the purpose of this offense, many DUI cases are now reduced to Physical Control through plea bargaining. As with reckless operation, there are pros and cons to a “Physical Control” plea bargain.
This is a misdemeanor of the first degree, and (like DUI) it carries a maximum punishment of 180 days in jail and a fine of $1,000.00. But there are no mandatory minimum penalties and no mandatory driver’s rights suspension (though a court may elect to impose a suspension). Unlike Reckless Operation, this offense is classified as a no point, non-moving violation. This can be very beneficial if a person already has points on their driver’s license. A DUI is a 6 point violation. And depending on how it is charged, a Reckless Operation could be 2 or 4 points.
Like Reckless Operation, Physical Control is not an “enhanceable” offense. This means that a conviction for Physical Control cannot be used to enhance a future DUI (should that happen) to a second or third or whatever offense.
The common concern with Physical Control is that it is an alcohol-related offense. Depending on individual circumstances, this could pose a problem for employment, family, insurance, or other reasons.
None of this means that Physical Control is bad plea bargain. But like Reckless Operation, a reduction to Physical Control is almost certainly better than a DUI conviction. It is important, however, to understand all the ramifications.
Some jurisdictions do not “reduce” DUI offenses at all. But they may dismiss them. Though it seems counter-intuitive, some courts will not accept reductions in DUI cases, even when the case is flawed. Perhaps because of policy or fear of adverse “statistics” (reported to the public about OVI reductions), these courts and judges do not permit plea reductions.
Sometimes this works out better for a DUI defendant. Left with no middle ground, prosecutors sometimes just dismiss a DUI or OVI rather than proceed to trial.
Negotiating Penalties & License Suspensions
Plea bargains deal with a lot more than the offense of DUI, OVI, etc. The offense is an important (and often the most important) component of plea negotiations. But there are many factors that must be considered. Even where a case is reduced to a Reckless Operation or Physical Control, Negotiations include license suspensions, possible jail days, fines, costs, and the like.
Attorneys sometime talk about a “Wet Reckless.” This is where there is a plea to a Reckless Operation, but all the DUI penalties are imposed. This is a common scenario, even though these DUI penalties are not mandatory for the offense of Reckless Operation. They are negotiated into the deal.
As Columbus DUI attorneys, we know there are many other factors that can be negotiated, depending on the individual needs and circumstances. To be certain, any DUI situation is less than ideal. And plea resolutions are compromises. But is critical to discuss all details of a plea resolution in order to focus on the primary concerns.
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