Do I Really Need To Hire A DUI/OVI Lawyer?

Answer - Yes, its recommended. DUI/OVIs have a dramatic effect on a client's life, employment, and family. My knowledge and understanding of the technical, scientific and legal complexity of DUI/OVIs, allows me to discover potential questions in many DUI/OVI cases, which when properly brought before a court, may benefit the person charged. Controversies such as whether or not the officer had a legal right to stop and/or arrest a person; whether or not the BAC test is legally valid; and whether or not a refusal to take a BAC and/or drug test legally qualifies as a refusal under the law, may be problems sufficient to dismiss a case or ALS suspension. These are just a few legal and factual issues I may be able to raise to help someone charged with DUI/OVI..

What Can I Do To Prevent Being Arrested For DUI/OVI in Columbus Ohio?

Answer - The only guaranteed way to prevent being arrested for DUI/OVI is to not drink or do drugs and drive. However, there are other ways to help reduce the likelihood of being stopped and arrested. Many DUI/OVI arrests are the result of not having a working turn signal, license plate light, rear tail light, and/or headlight. Merely taking the time to check the working condition of the lights on your vehicle once a week can go a long way in removing reasons for an officer to stop your vehicle. Staying within the speed limit and driving within the marked lines of your lane of travel are other ways to "not get noticed" by law enforcement. All of the ways to reduce the chances of being stopped are common sense ways to drive safely.

Another primary concern is "the smell of alcohol on a person's breath or about his/her person." The stronger the smell of alcohol, the greater the likelihood that a person will be arrested. Be warned that mouthwashes which contain alcohol create the smell of alcohol and will register in BAC tests. Again, using common sense is the best preventative measure.

Should I Perform Field Sobriety Tests?

Answer - There is no "one" correct answer to this question. There can be risks and benefits associated with either the decision to perform field sobriety tests or the decision to refuse to perform the tests. Good performance may prevent arrest or be useful in defending a case. Poor performance may provide evidence of intoxication and alcohol/drug impairment.

As each situation is unique, the reasons to perform the tests in one circumstance may not apply in a different circumstance. For example, conditions such as the evenness of the surface where a person walks and stands, weather conditions, lighting, and the physical dexterity of a person, are always different. These are but a few examples of factors to consider when deciding whether or not to perform the field sobriety tests.

No matter whether a person decides to perform or refuse the field sobriety tests, anyone accused of DUI/OVI should always tell officers of any injuries and physical impairments which may impact how well or how poorly the field sobriety tests may be performed, or impact the decision to refuse to perform the tests. A sore toe, knee injury, sprained ankle, one leg shorter than the other, or an injured back, are a few examples of physical conditions which may impact the test results. Injuries/impairments should be taken into consideration by officers in interpreting the test results or understanding why the field sobriety tests were refused.

 

Additionally, advise officers of any eye or vision issues. Officers always attempt to perform HGN testing (horizontal gaze nystagmus). HGN testing theoretically tells how much alcohol a person has in his/her system, because the eyes automatically (person is unaware) flutter at certain positions when looking to one side or the other. There is a similar test for marijuana called the VGN (vertical gaze nystagmus - looking up and down). Other factors known to potentially influence the outcome of the eye movement tests are flashing lights or bright lights. Eye and vision issues, as well as lighting questions, may affect the results of these tests, and/or the decision to perform or refuse the tests.

The "Shut Up" Factor: What About Miranda Warnings?

Answer - People like to talk, especially when they are nervous. But talking has the propensity to get oneself into trouble or make problems worse. So, what to do when an officer begins asking questions? If you choose to respond, be as brief as possible.

An officer is entitled to learn the identity of a person stopped for DUI/OVI, and obtain a driver's license or other form of identification. Beyond questions dealing only with identity, a person has a choice whether or not to answer an officer's questions. There is no special formula to use to decide whether or not to respond to an officer's interrogation. The key to the decision is common sense - about yourself and your circumstances.

The 5th Amendment to the United States Constitution creates a "right against selfincrimination." In other words, you cannot be required to give information that may be used to convict you of DUI/OVI. Because the Constitution protects a person against incriminating himself/herself, the United States Supreme Court created what are known as "Miranda Rights or Warnings." Basically, the "Warnings" are to remind a person that he/she cannot be required to talk, but if a person decides to talk, what he/she says can be used against them as evidence to convict the person of a crime. The "Warnings" also advise a person that he/she is entitled to have a lawyer present during "custodial" questioning.

In a 2010 case, The US Supreme Court said that when an officer gives the "Miranda Warnings," if the person being questioned wants to be silent and not answer questions, the person must "explicitly" tell the officer of the intent to be silent and not answer questions. Even then, if a person starts talking, the statements may be used as evidence. In other words, the Miranda Warnings do not automatically protect a person from answering questions. If you choose not to answer an officer's questions, tell the officer in clear and unequivocal words that you do not want to talk or answer questions. And Stop Talking!

Should I Take Breath, Urine and/or Blood Tests?

Answer - As with field sobriety tests, there is no "one" correct answer. Under Ohio law, every person who operates a motor vehicle is presumed to consent to taking Breath, Urine and/or Blood Tests (BAC tests). This is known as the "implied consent law." However, a person accused of DUI/OVI has the option to take or refuse a BAC test, except under circumstances when an officer "may employ whatever reasonable means necessary" to make a serious repeat offender submit to a BAC test.

The decision to take or refuse BAC tests is significant in several ways. For example, as discussed in the DUI/OVI Defense section of this site, there are two types of DUI/OVI charges, "Per Se" and "Impairment." The "Per Se" charge is based solely on a BAC/drug test being equal to or above the statutory prohibited level of alcohol or drug content. The "impairment" charge is based upon the driving and behavior of the accused, not a BAC test. Consequently, the types of DUI/OVI charges may depend on whether or not an accused submits to BAC tests.

All is not lost if a person elects to take the BAC test, and the test result is equal to or above the statutory prohibited level of alcohol or drug content. As discussed in the DUI/OVI Defense section of this site, my investigation may help lead to legal and constitutional challenges of the officers' actions, and to challenges focused solely on the BAC test. There are potential scientific and legal reasons to attack the legality of the test, or to challenge the veracity of the test result as evidence. Further, there are procedures that the prosecution is required to follow before a BAC test can be introduced as evidence. So do not just give up!

One consequence of refusing to take a BAC test is the ALS. The length of this suspension severely increases if there has been one (or more) previous BAC refusal within six years of the date of arrest. The ALS requires payment of a $475.00 reinstatement fee for return of your license from the BMV. However, there are ways to challenge the suspension. But, when circumstances dictate that there is no other alternative than to plead guilty, a guilty plea terminates the ALS and the requirement to pay the reinstatement fee no longer applies.

In some courts, punishment may be more severe for refusing to submit to BAC testing. Judges may take this factor into consideration in determining the length of a court imposed license suspension, the length of jail time (in addition to a Driver Intervention Program) and/or the amount of a fine.

What Can Be Used Against Me As Evidence Of A DUI/OVI?

Answer - Everything from the manner of driving, to BAC test results, to what is or is not said or done by the person accused until he/she is released to go home, is potential evidence. Evidence can be witness' testimony, documents, photographs and other tangible things obtained by either the prosecution or the accused. The arresting officer is not the only possible witness. Other witnesses may include other officers or persons present at the scene of arrest, the jailer who observes the accused's behavior at the jailhouse, and every other person who has knowledge of any facts relevant to the DUI/OVI. Expert witnesses may be necessary to explain what BAC test results mean.

Bear in mind that just because someone or something may be potential evidence, does not automatically mean that it is admissible evidence in court to prove guilt. For example, all evidence is subject to laws and rules pertaining to the legality of how the evidence was obtained. If evidence was obtained illegally, courts should not permit the evidence to be used against someone accused of DUI/OVI. For example, if a person is driving properly, and yet is stopped and investigated for DUI/OVI, there may be constitutional questions about whether the officer had reasonable grounds to stop the accused or to continue to investigate a DUI/OVI after first approaching the accused? If the evidence was obtained in violation of the Ohio or United States Constitutions, or there are other reasons to question the reliability of evidence, there are laws and rules that say such evidence is not admissible.

Remember, evidence may also be used by the accused to defend against DUI/OVI charges and any ALS. Evidence can often be a "two-edged sword," and be equally or more favorable for the accused than the prosecution. My experiences as a trial attorney have taught me this valuable lesson.

When Should I Tell My Employer I Was Arrested For DUI/OVI?

Answer - This is a significant and tough question. Common sense is the best guide. It is recommended to contact a qualified attorney such as myself, as soon as possible, in order to properly evaluate the risks associated with telling, not telling or delay in telling an employer of the arrest, as well as to determine "what" to say to the employer.

However, there are situations when an employer should be advised of the arrest at the first reasonable opportunity. Such situations include for example, when a person's occupation involves driving as part of his/her job; when a person is placed under ALS and cannot attend work; when a person uses a company vehicle. or when the employer provides motor vehicle insurance. Another circumstance is when an accused lives in a community that reports arrests in the local paper. It is better to have the employer learn of the arrest from the person arrested than to read about it. Other factors to consider may include employment agreements and/ or employee handbooks which address issues of employee code of conduct or substance abuse.

Equally important as when to tell an employer of an arrest, is what to tell the employer about being arrested. Its easy to forget that being "accused" of DUI/ OVI does not mean that a person is "guilty" of DUI/OVI. Always be honest! An employer will have more understanding and compassion if the story is straight forward and brief. And make sure that the employer understands that the DUI/ OVI judicial process takes time and that you will keep the employer updated as events take place.