Everyone has heard of DUI. Most have some idea what those letters stand for—“Driving Under the Influence.” But that is a generic term. Ohio law has its own terminology. Years ago, we called it OMVI in Ohio (Operating Motor Vehicle while under the Influence). Then, in recent years, the Ohio General Assembly went back to the drawing board. Now we have OVI (Operating a Vehicle under the Influence). This change probably stems from the fact that one doesn’t have to be operating a motor vehicle, at least not by the definition that most attribute to the term motor vehicle. We have seen drunk driving related charges against people on bicycles, mopeds, boats, and even riding lawn mowers. So now the term OVI is supposed to make some sense of all this potential confusion. Hardly.
In the old days, driving impaired meant just that-- Driving while impaired by alcohol. While the term “impaired” can be rather subjective, the law (from the courts) provided some objective considerations. In the end, though, these impairment cases rested on whether a jury believed the person was too drunk to be driving. And that’s pretty much how it still works with impaired OVI cases.
By today’s terminology, we still have this type of “impaired” violation. Under the Ohio Revised Code, we can find it under RC 4511.19(A)(1)(a)—“No person shall operate any vehicle streetcar, or trackless trolley within this state, if, at the time of the operation…the person is under the influence of alcohol, a drug of abuse, or a combination of them.” This makes sense. (Sort of--Not really sure what a “trackless trolley” is). If someone is too drunk, it’s a crime to drive.
But what about breath tests, urine tests, and blood tests? There is a separate crime for each type of test. We call these “per se” violations. In other words, it’s a crime to drive with a breath-alcohol content of .08 or above. There are also separate offenses for prohibited blood and urine contents. Anyone interested can check out the per se law by reading Ohio Revised Code 4511.19(A)(1)(a)-(j).
In simple terms, there are two possible ways to be charged with OVI—the classic “impairment” charge and the more technical “per se” violation. But most people equate driving above the legal limit with driving impaired. This would make sense in any other world. But it is not necessarily true in the legal arena. In other words, a person could have a breath test over the legal limit, but not be too impaired to drive. The opposite is also true. Someone could be too impaired to drive even though the breath test was below the legal limit.
This type of inconsistent outcome happens a lot. Let’s look at an example. Someone is charged with driving under the influence (“impaired” OVI) and with having a breath test above the legal limit (“per se” OVI). In this example, let’s say that the breath test is relatively low (.10--only 2 tenths above the .08 limit). Suppose the person does pretty well on field sobriety tests and is not a stumbling, bumbling drunken idiot. The case goes to a trial. The prosecutor shows the jury the breath test result. The arresting officer describes the person’s behavior at the scene of the stop. The defense attorney does a good job pointing out that the person does not “look” or seem impaired. After all, the person does pretty well on field sobriety tests.
Before the jury begins to deliberate, the judge reminds them that there are two separate charges—the impaired charge and the per se charge. The issue on the impaired charge is whether person was “appreciably impaired.” On the per se charge, however, impairment doesn’t matter. The only issue is whether the person was driving with a breath alcohol content above .10.
The jury deliberates. They eventually conclude that the defendant was not impaired. They sign a not guilty verdict on that charge. But they feel there is no choice on the per se charge. After all, the test was above the limit. What else can they do but find the person guilty?
So we end up with a not guilty on the impaired and a guilty on the per se. The penalties are the same for both charges, and defendant now has an OVI conviction.
This is perhaps over-simplified. But the example demonstrates the differences between the two charges. There are, however, many complexities that an experienced OVI lawyer needs to understand. There are ways to challenge breath tests before and during trial, there are techniques to cross-examine officers about the breath tests, and there are many issues that need to be addressed. This is why it’s extremely important to hire a lawyer experienced in the field. The laws and court decisions change regularly, and OVI defense has become a specialized practice area.
Posted in DUI/DWI