Daniel Gigiano Reviews Ohio DUI And Ohio OVI Law
Here, Attorney Daniel Gigiano reviews Ohio DUI laws and Ohio Supreme Court OVI
cases. These laws and cases shape how DUIs are enforced in Ohio.
Attorney Daniel Gigiano has practiced DUI law
since 1993 and, in this blog, shares his knowledge of the offense that has
touched so many lives in Ohio.
What Is OVI In Ohio?
What is OVI in
Ohio? Attorney Daniel Gigiano typically
uses the term DUI in his articles because that is what most people commonly
call the offense of driving under the influence of alcohol. Even Ohio lawyers loosely use the term DUI,
rather than the official term of OVI.
DWI is typically recognized as an outdated term by both laypeople and
professionals.
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| Horizontal Gaze Nystagmus Test |
What are DUI, OVI,
DWI, and BAC in Ohio? DUI is driving
under the influence. DWI is driving
while impaired. DUI and DWI are acronyms
that are no longer used in Ohio since Ohio enacted a law in 1982 that refers to
driving under the influence of alcohol or drugs as OMVI or “operating a motor
vehicle impaired.” But, what is OVI in
Ohio if OMVI was the official term at one point? When Ohio removed the requirement that the
vehicle be motorized, the offense was shortened to OVI, or “operating a vehicle
impaired.” This leaves us with the term
BAC, which is still alive and well today in the law. BAC refers to blood alcohol content. In Ohio, it is illegal to operate a vehicle
with a BAC of .08 breath alcohol content or greater. If the driver is under 21 years of age, the
legal limit is as low as .02 breath alcohol content. For many people, that can be reached with as
little as one drink within the hour before testing.
Having the legal limit as low as .02 breath alcohol content is quite low. While drivers under the age of twenty-one should not be drinking, there is already a law prohibiting that activity--underage consumption.
Ohio OVI Law Changes
Ohio’s laws for
operating under the influence of alcohol (otherwise known as OVI or more
commonly known as DUI or DWI) have changed over the last several years. First, a test result of .17 or greater
doubles the minimum incarceration period.
For example, a first time OVI conviction would normally carry a minimum
sentence of three days in a driver intervention program or jail. A high test result would double that minimum
sentence to six days in jail or to both three days in jail and three days in
the driver intervention program.
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| Anti-Refusal Law Creates This Image of DUI Suspects |
Ohio also created a
new criminal offense for refusing to take the breathalyzer test. If a person arrested for OVI has been
previously convicted of an OVI within twenty years and refuses to take the
breathalyzer test, that person can be charged with a separate offense of
refusal. The minimum incarceration
period for a refusal is double of the underlying OVI offense.
Criminalizing a refusal to take a breathalyzer test has become a backdoor method of introducing prior OVI offenses into evidence at trial. Now, a jury can learn about a DUI conviction that could have occurred as long as twenty years prior to that time, making it more difficult for the jury to focus on the evidence before them. With this information, one could have the police officer pre-judge the person, followed by the jury pre-judging them.
DUI Blood Testing Requirements
On February 10, 2016, the Ohio Supreme Court issued
a decision on DUI blood testing requirements.
In this latest
case,
the Ohio Supreme Court had to decide if the police substantially complied with
the Department of Health regulations.
The substantial compliance standard was created by the Ohio Supreme
Court years ago. Some argue that the
substantial compliance standard provides rational flexibility while others
argue that it allows court to ignore serious forensic errors by the
police.
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| DUI Blood Testing |
This case involved a fatal vehicle accident in which
alcohol was suspected as the cause. A
blood sample was taken at 1:50 a.m. Even
though the officer went back to the police station to complete paperwork, he
kept the sample in his cruiser until his shift ended at 6 a.m. when he mailed
it to the crime lab. The lab test showed
Baker’s blood alcohol level to be .095, over the legal limit of .08. The regulation
stated “while not in transit or under examination, all blood and urine samples
shall be refrigerated.” Despite the fact
that the sample was not in transit or under examination, the Ohio Supreme Court
held that failure to refrigerate the sample for 4 hours and 10 minutes was
substantial compliance in this matter.
Therefore, the evidence was not automatically suppressed for failure to
follow the rule.
Justice O’Neill, in his dissenting opinion,
criticized the opinion of the court when he stated it was “outrageous that the
General Assembly assigned to experts the task of setting rules to ensure that
accurate test results are admitted in drunk-driving cases only to have the
rules ignored.” He further exclaimed
“One man lies dead and another man faces a lengthy prison term if convicted of
drunk driving. This is no time to be
treating the rules regarding admissibility of evidence lightly.”
Attorney Daniel Gigiano agrees with Justice O’Neill. The rules are there for a reason. Essentially, somebody determines the
procedures necessary to properly preserve evidence. Having such rules in place avoids having an
expert testify in every case to explain how to preserve evidence. Daniel Gigiano has to wonder if the blood
sample in this serious fatal DUI case was truly reliable. However, the Ohio Supreme Court did not see
it that way and that high court is the last word on legal issues unique to
Ohio. Of course, the United States
Supreme Court may occasionally touch on federal limitations to Ohio issues.
Repeat OVI Offender Specifications Constitutional
In 2016, the Ohio Supreme Court found the repeat OVI
offender specifications constitutional.
The accused challenged the Ohio DUI sentencing laws as unconstitutional
because they violated equal protection of the law. The
Ohio Supreme Court did not agree with that argument.
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| Repeat DUI Offenses Have Greater Penalties |
Ohio DUI law sets up a system of increased penalties for
repeat DUI offenders. First and second
OVI offenses within six years is a first degree misdemeanor. A third offense within six years is still a
first degree misdemeanor, but the accused can be sentenced to one year in jail,
rather than just six months. If one has
3 or 4 prior misdemeanor OVI convictions in the past 6 years, the OVI is a
fourth-degree felony. If one has 5 or
more OVI convictions in the past 20 years, the OVI is a fourth degree felony.
One with zero to one prior convictions faces a maximum of 6
months in jail. One with two prior OVI
convictions faces a year in jail. Fourth
degree OVI convictions have a base term of 30 months plus 60 or 120 days. Third degree OV I convictions have a base
term of 36 months plus 60 or 120 days.
The repeat-OVI specification applies to third degree or fourth degree
offenders with 5 or more convictions in 20 years. This specification adds a mandatory prison
term of one, two, three, four or five years in addition to the base term of
imprisonment for the underlying offense.
OHIO DUI LAW PENALTIES FOR REPEAT OFFENDERS
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Offense(s)
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Misdemeanor/Felony
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Max. Jail/Prison Term
|
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First in 6 years
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1st
degree misdemeanor
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6 months
|
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Second in 6 years
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1st
degree misdemeanor
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6 months
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Third in 6 years
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1st
degree misdemeanor
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12 months
|
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Fourth in 6 years or Sixth in 20 years
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4th
degree felony
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34 months
|
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Second Felony Lifetime
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3rd degree felony
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5 years
|
Ohio DUI law sets up a
system of increased penalties for repeat DUI offenders.
Are Sobriety Checkpoints Legal?
Can police use sobriety checkpoints to stop and
check to see if the drivers may be driving under the influence of alcohol?
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| Are DUI Checkpoints Legal? |
The United States Supreme Court held that sobriety
checkpoints are valid under the U.S. Constitution. The Court, in its decision, found that the intrusion and inconvenience to individuals who are
stopped is outweighed by the government’s interest in restricting DUIs. Ohio courts determined that
there are four
factors to determining the legality of a sobriety
checkpoint: (1) a checkpoint location
must be selected for its safety and visibility to oncoming motorists; (2)
adequate advance warning signs illuminated at night, must timely inform
approaching motorists of the nature of the impending intrusion; (3) uniformed
officers and official vehicles must be in sufficient quantity and visibility to
show the police power of the community; and (4) policy-making administrative
officers must make a pre-determination of the roadblock location, time, and
procedures to be employed, according to carefully formulated standards and
neutral criteria.
Once stopped at a sobriety checkpoint, the officer
determines if the driver is suspected of operating a motor vehicle under the
influence of alcohol or drugs. If there
is no suspicion of DUI or other legal wrongdoing, the driver is permitted to
leave. If there is suspicion of OVI, the
officer detains the driver and conducts field sobriety testing and breath
testing. After such tests, the driver
may be arrested if there is probable cause to believe the driver is under the
influence.
About The Author – Daniel Gigiano, Esq.
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| Attorney Daniel Gigiano |
Attorney Daniel Gigiano is located in downtown
Wadsworth, Medina County, Ohio. Daniel
Gigiano, Esq. regularly represents individuals accused of DUI and/or OVI in the
courts in Medina County, Wayne County and Summit County. Daniel Gigiano, attorney at law, has fought
hard to win many DUI and/or OVI cases, winning dismissals in several courts,
including Medina County and Wayne County courts.
Review Daniel Gigiano's website for more information about Ohio law. Attorney Daniel Gigiano can be reached at 330-336-3330.
