Q: What are my rights once I have been arrested for Operating a Vehicle Impaired (OVI)?
A: Many of the rights afforded to citizens by both the United States and Ohio constitutions do not apply in OVI cases.
For example, police officers do not have to advise you of your right to remain silent until after you are in custody. Statements you may make while you are being detained but before your actual arrest (such as responses to questions about where you were or how much you had to drink) can be used against you in court.
You do not have the right to speak to an attorney before taking a breath, blood or urine test to determine your Blood Alcohol Content (BAC). You have the right to counsel only after you have decided, on your own, whether or not to submit to a test.
The constitutional protection against unreasonable governmental intrusions also does not apply in OVI cases. You can be randomly stopped, detained and searched at a “Sobriety Check Point” even if you have violated no laws. You can be ordered to step out of your car, subjected to interrogation and asked to do Field Sobriety Tests.
Also, you are not always considered “innocent until proven guilty.” If a test reveals a BAC at or above the legal limit, the law presumes that you are guilty in an OVI case.
Q: If I get arrested for OVI, should I submit to a test to measure my BAC?
A: When making such a decision, you should consider a number of factors.
First and foremost, if you have a commercial driver’s license, it is usually best to submit to a test, since your license may be suspended for not doing so. This is true whether or not you are actually driving a commercial vehicle or are ultimately convicted of OVI.
The second most important factor to consider is whether or not you have been convicted of a “drunk driving” offense within the past 20 years. If so, you can be charged with a separate crime if you refuse to be tested, and you can be subjected to a mandatory period of incarceration if you are found guilty of the OVI offense.
Another important factor is whether or not you were “operating” the vehicle (causing it to move). If you were not “operating” the vehicle, taking the test likely will not result in a license suspension even if your BAC is over the legal limit. However, refusing the test will result in an administrative license suspension of one year.
The length of time you can survive without limited driving privileges is another major consideration. Assuming this is your first offense, if you submit to a test and your BAC is at or above the legal limit, you will not be eligible for limited privileges during the first 15 days following your arrest. If you refuse the test, no limited privileges can be granted during the first 30 days after your arrest. Also, some courts do not grant any limited privileges to an individual who refuses a test unless and until that individual pleads guilty to an OVI offense.
Additional factors you might consider when deciding whether or not to submit to a test are your weight, sex, ingestion of food, type and amount of alcohol consumed, duration of alcohol consumption and the amount of time that has passed since your last drink.
Although you should consider the duration of the Administrative License Suspension (90 days for testing at or above the legal limit and one year for a refusal), you also must consider that, if the test result reveals a BAC at or above the legal limit, you will be presumed guilty, and evidence of your BAC will be used against you at trial. Moreover, depending on your BAC level, you could be facing mandatory incarceration, and you may be required to have special OVI plates on any vehicle you drive while your license is suspended.
Q: Can an officer force me to submit to a BAC test?
A: It depends. In some jurisdictions, the arresting officer will ask a judge to issue a warrant to draw blood. If the judge signs the warrant, your blood can then be legally drawn, against your will, and submitted for testing. Such a practice is becoming more common in Ohio, although in most jurisdictions, warrants are used only when someone is injured or killed in an alcohol-related accident.
In addition, if you have previously pled guilty or been convicted of two or more OVIs in the previous six years, or five or more OVIs in the previous 20 years, an officer may use whatever reasonable means necessary to ensure that you submit to a chemical test.
Law You Can Use is a weekly consumer legal information column provided by the Ohio State Bar Association. This article was prepared by attorney Jon J. Saia, a partner in the Columbus law firm, Saia & Piatt, Inc. It was updated by attorney Jessica G. Fallon of the same firm.