Sunday, August 7, 2016

Daniel Gigiano Reviews Ohio DUI And Ohio OVI Law

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  DWI is typically recognized as an outdated term by both laypeople and professionals. 
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. 
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. 

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.

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.

Max. Jail/Prison Term
First in 6 years
1st degree misdemeanor
6 months
Second in 6 years
1st degree misdemeanor
6 months
Third in 6 years
1st degree misdemeanor
12 months
Fourth in 6 years or Sixth in 20 years
4th degree felony
34 months
Second Felony Lifetime
3rd degree felony
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?    

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.

Daniel Gigiano Reviews DUI
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.