Why Was I Charged With Two OVI Offenses?

There are two ways to be charged with OVI (drunk driving) in Ohio.  Often, both are charged for reasons that will be addressed shortly.  First, let’s explore what the two charges mean.

Per Se” Offenses:  per se is a latin phrase meaning “in itself.”  It is also a legal term of art defined in Black’s Law Dictionary as “taken alone… unconnected with other matters.”  For purposes of Ohio OVI law, it means that OVI is a strict liability offense that occurs if you take a chemical test and fail.  Ohio presumes that if you test over the proscribed legal limit (.08% BrAC) you are guilty of operating a vehicle impaired.  The law is set forth at Ohio Revised Code Section 4511.19(A)(1)(B), which states:

(A)(1) No person shall operate any vehicle, streetcar, or trackless trolley within this state, if, at the time of the operation, any of the following apply:

  • (b) The person has a concentration of eight-hundredths of one per cent or more but less than seventeen-hundredths of one per cent by weight per unit volume of alcohol in the person’s whole blood.
  • (c) The person has a concentration of ninety-six-thousandths of one per cent or more but less than two hundred four-thousandths of one per cent by weight per unit volume of alcohol in the person’s blood serum or plasma.
  • (d) The person has a concentration of eight-hundredths of one gram or more but less than seventeen-hundredths of one gram by weight of alcohol per two hundred ten liters of the person’s breath.
  • (e) The person has a concentration of eleven-hundredths of one gram or more but less than two hundred thirty-eight-thousandths of one gram by weight of alcohol per one hundred milliliters of the person’s urine.
Ohio has also created a per se “high-tier” limit of .17% BrAC, sometimes referred to as a SUPER-OVI.  The per se high-tier limits are set forth at O.R.C. 4511.19(A)(1)
  • (f) The person has a concentration of seventeen-hundredths of one per cent or more by weight per unit volume of alcohol in the person’s whole blood.
  • (g) The person has a concentration of two hundred four-thousandths of one per cent or more by weight per unit volume of alcohol in the person’s blood serum or plasma.
  • (h) The person has a concentration of seventeen-hundredths of one gram or more by weight of alcohol per two hundred ten liters of the person’s breath.
  • (i) The person has a concentration of two hundred thirty-eight-thousandths of one gram or more by weight of alcohol per one hundred milliliters of the person’s urine.
 You can also be charged with a per se offense based on the concentration of illicit drugs in your system.  To be convicted of a per se offense, the state must prove that a person operated a motor vehicle in Ohio and that at the time of operation, the person had a prohibited concentration of alcohol or drugs in their blood, breath or urine.  Your DUI attorney will devise defenses particular to the specific evidential test you took.  The admissibility of the results of these tests are dependant upon the arresting agency’s and testing organization’s compliance with the rules of the Ohio Administrative Code (OAC) as adopted and approved by the Ohio Department of Health.  At DaytonDUI, we know how to defend a breath test case and employ sophisticated scientific defenses to win your DUI case.  An oft’ quoted maxim that you should know is, “An arrest is not a conviction.”
Appreciable Impairment Offenses:  If you refuse to take a chemical test, the State will still be able to prove you guilty of an OVI if they prove (beyond a reasonable doubt) that you  operated a motor vehicle in Ohio after having consumed some alcohol, drugs of abuse, or a combination of the two and their ability to operate the motor vehicle was appreciably impaired.  How does a jury determine “under the influence?”  The following is an excerpt from the Ohio Jury Instructions:
“Under the influence” means that the defendant consumed some (alcohol) (drug of abuse) (combination of alcohol and a drug of abuse), whether mild or potent, in such a quantity, whether small or great, that it adversely affected and noticeably impaired the defendant’s actions, reaction, or mental processes under the circumstances then existing and deprived the defendant of that clearness of intellect and control of himself/herself which he/she would otherwise have possessed. The question is not how much (alcohol) (drug of abuse) (alcohol and a drug of abuse) would affect an ordinary person.

The question is what effect did any (alcohol) (drug of abuse) (alcohol and a drug of abuse), consumed by the defendant, have on him/her at the time and place involved. If the consumption of (alcohol) (drug of abuse) (alcohol and a drug of abuse) so affected the nervous system, brain, or muscles of the defendant so as to impair, to a noticeable degree, his/her ability to operate the vehicle, then the defendant was under the influence. The Ohio jury Instruction cites language from State v. Hardy (1971), 28 Ohio St.2d 89, 57 O.O.2d 284, 276 N.E.2d 247; and State v. Steele (1952), 95 Ohio App. 107, 52 O.O. 488, 117 N.E.2d 617.

The “appreciable impairment offense” is set forth at Ohio Revised Code 4511.19(A)(1)(a) which states,

(A)(1) No person shall operate any vehicle, streetcar, or trackless trolley within this state, if, at the time of the operation, any of the following apply:

(a) The person is under the influence of alcohol, a drug of abuse, or a combination of them.

At DaytonDUI we refer to the (A)(1)(a), appreciable impairment offense as the OTIS standard, derived from the popular OTIS character featured on the classic Andy Griffith program.  OTIS was the stereotypical town drunk who often found himself in the Mayberry jail.  OTIS was obviously intoxicated based on how he looked, walked, acted and talked.  Viewers had no doubt that he was intoxicated.  Law enforcement will  attempt to prove impairment with the same evidence we use to judge OTIS.

It is up to your defense attorney to point out the inconsistencies and omissions in the officer’s observations.  Charles M. Rowland II was the first attorney in the United States to earn a certificate in Forensic Sobriety Assessment. FSA certification requires proficiency in the scientific principles and research relating to sobriety testing in a DUI/OVI stop.  It subsumes the police/NHTSA training (knowledge of the NHTSA manual is required) and greatly extends it.  Charles Rowland is currently the only lawyer in Ohio to hold FSA certification.  In 2010, Charles M. Rowland II attended the most current NHTSA training wherein he was trained to administer and evaluate the standardized field sobriety tests . This is the same NHTSA/SFST training course that law enforcement officers are trained in nationwide and testify to in court.  Charles is a frequent speaker and a prolific writer on all matters related to DUI defense.

Why Both Charges?  Often, the arresting law enforcement officer will charge both the per se and appreciable impairment cases, knowing that you cannot be convicted of both.  In essence, the officer is hedging his bets, hoping that if your test is found to be faulty you can still be found guilty of being impaired.  At your trial or sentencing hearing, your conviction will either be for the per se or appreciable impairment charge.  Your DUI attorney will help you understand the pros and cons of any plea agreement and empower you to make choices that will benefit you on a short-term and long-term basis.  Choosing the best DUI attorney for your case is the most important decision that you can make and should not be rushed or taken lightly.  At DaytonDUI, we are striving to be the best Dayton DUI defense firm in Ohio and we work hard to keep you informed and help you make good decisions.  When you hire Charles Rowland he will be your attorney throughout your case and will not pass you onto a less experienced associate.  He maintains a 24-hour DUI Hot-line (937) 776-2671 and has a staff dedicated to taking care of your needs.

DUI attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in Dayton and throughout the Miami Valley.  He has the credentials and the experience to win your case and has made himself the Miami Valley’s choice for DUI defense.  Contact Charles Rowland by phone at 937-318-1DUI (937-318-1384), 937-879-9542, or toll-free at 1-888-ROWLAND (888-769-5263).  For after-hours help contact our 24/7 DUI HOTLINE at 937-776-2671.  For information about Dayton DUI sent directly to your mobile device, text DaytonDUI (one word) to 50500.  Follow DaytonDUI on Twitter@DaytonDUI or Get Twitter updates via SMS by texting DaytonDUI to 40404. DaytonDUI is also available on Facebookwww.facebook.com/daytondui and on the DaytonDUI channel on YouTube.  You can also email Charles Rowland at: CharlesRowland@DaytonDUI.com or write to us at 2190 Gateway Dr., Fairborn, Ohio 45324.