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Stubbins, Watson & Bryan Co., L.P.A.

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If I'm stopped by a police officer and he asks me if I’ve been drinking, what should I say?

You are not required to answer potentially incriminating questions.  A polite “I would like to speak with an attorney before I answer any questions” is a good reply.   On the other hand, saying that you had one or two beers is not incriminating: it is not sufficient to cause intoxication—and it may explain the odor of alcohol on the breath.   When in doubt, it is better not to say anything about your activities or driving.

Do I have a right to an attorney when I’m stopped by an officer and asked to take a field sobriety test?

As a general rule, there is no right to an attorney until you have been placed in “custody” and then are questioned.  Of course, this does not mean that you cannot ask for one at any time.

What should I do if I’m asked to take field sobriety tests?

There is a wide range of field sobriety tests (FSTs), including the pen test, the heel-to-toe test, the finger-to-nose test, the one-leg stand test, alphabet recitation test, the fingers-to-thumb test, etc.  Most officers will use a set battery of three such tests.   In our area, the most widely administered tests are the pen test, heel-to-toe test and one-leg stand test.  Unlike the chemical test, where refusal to submit may have serious consequences, you are not legally required to take any FSTs.   The reality is that officers have usually made up their minds to arrest when they give the FSTs; the tests are simply additional evidence that the driver inevitably “fails”; thus, in most cases a polite refusal may be appropriate.

Why did the officer make me follow a penlight with my eyes to the left and right?

This is the “horizontal gaze nystagmus” test, a relatively recent development in OVI investigations.  The officer attempts to estimate the angle at which the eye begins to jerk (“nystagmus” is medical jargon for eye jerking); if this occurs sooner than 45 degrees, it theoretically indicates an excessive blood-alcohol concentration.  The smoothness of the eye’s tracking the penlight (or finger or pencil) is also a factor, as is the jerking when the eye is as far to the side as it can go.  You cannot feel your eye jerk so your performance rests on the officer’s evaluation.  This field sobriety test has proven to be subject to a number of different problems, not the least of which is the non-medically trained officer’s ability to recognize nystagmus and estimate the angle of onset.   If you agree to take this test, it is admissible as evidence in Ohio if the test is given in substantial compliance with the procedure outlined in the training manual.

Should I agree to take a chemical test?  What happens if I don’t?

The consequences of refusing to submit to a blood, breath, or urine test varies.  Generally, there are three adverse results:

  • Your driver’s license will be suspended for 12 months.   This is true even if you are found not guilty of the OVI charge.
  • A refusal may add jail time to the sentence for the OVI offense depending on your prior driving record or a judge’s sentencing preferences when a refusal is involved.
  • The fact of refusal can be introduced into evidence as “consciousness of guilt.”  Of course, the defense is free to offer other reasons for the refusal. Thus, the decision is one of weighing the likelihood of a high blood-alcohol reading against the consequences for refusing.

Do I have a choice of chemical tests?

No, the arresting officer has the discretion to request which chemical test or tests you should submit to (blood, breath, or urine).  Analysis of blood sample is potentially the most accurate.  Breath machines are susceptible to a number of problems rendering them often unreliable.   The least accurate by far, however, is urinalysis.

The officer never gave me a Miranda warning: Can I get my case dismissed?

No.  The officer is supposed to give the 5th Amendment warning after he arrests you.  Often, however, they do not.  The only consequence is that the prosecution cannot use any of your answers to questions asked by the police after the arrest.   Of more consequence in most cases is the failure to advise you of the Ohio’s “implied consent” law that is, your legal obligation to take a chemical test and the results if you refuse.  This can affect the suspension of your license.

Why am I being charged with TWO crimes?

The traditional offense is “driving under the influence of alcohol” (DUI) or, as it is now called in Ohio, “Operating a Vehicle under the Influence” (OVI).  Ohio has also enacted a second, so-called “per se” offense: driving with an excessive blood-alcohol concentration (.08%).   Often times, BOTH offenses are charged.   The defendant can even be convicted of both, but can be punished for only one.  If the case involves a refusal to submit to chemical testing, of course, only the traditional offense will be charged since no ‘test’ exists.

The officer took my license and served me with notice of suspension after the breath test: How can he do that if I’m presumed innocent?

Agreed, it is blatantly unfair. But the law in Ohio provides for immediate suspension and confiscation of the license if the breath (or blood or urine test) test result is above the legal limit or if you refuse to take a chemical test.

Can I represent myself?  What can a lawyer do for me?

You can represent yourself—although it is not a good idea.  “Drunk driving” is a very complex field with increasingly harsh consequences.  There is a minefield of complicated procedural, evidentiary, constitutional, sentencing and administrative license issues.   What can a lawyer do? Nothing if he is not qualified in this highly specialized field—no more than a family doctor could help with brain surgery.  A qualified attorney, however, can review the case for defects, suppress evidence, compel discovery of such things as calibration and maintenance records for the breath machine, negotiate for a lesser charge or reduced sentence, obtain expert witnesses for trial, contest the administrative license suspension, etc.   Also, he can discuss with the Court critical sentencing concerns you may have, including obtaining limited driving privileges for work, work release during a jail sentence and an extension to pay fines and court costs.

I have some questions about my OVI case.  Where can I go for answers?

Call Mark Stubbins at 866-974-0926 (Toll Free) or 740-452-8484.  He has been practicing in the area of OVI defense for more than 25 years.  He will be glad to talk to you on the phone about your charges, your upcoming first appearance in court and discuss with you the issue of attorney fees.