A typical DUI/OVI stop starts with a probable cause traffic stop. Depending on the time of day, the location or the way you are driving, the officer may begin the encounter believing that you are possibly “19” (police shorthand for a possible R.C. 4511.19 (DUI) violation). Probable cause for the stop can be anything from severe weaving or crashing all the way down to something as de minimus as a license plate light out. The officer’s true purpose in pulling you over cannot be questioned if there is even a minor violation of law.
The officer will observe the way you pull over and will approach the vehicle with caution. Always keep your hands where the officer can see them and avoid furtive movements. When the officer asks “do you know why I pulled you over?” what do you say? When the officer asks if you have been drinking, what do you say? If the officer asks you if you are willing to take some roadside tests, what do you say? Always begin every police encounter by asserting your rights, “I DO NOT WANT TO ANSWER QUESTIONS AND I WANT TO SPEAK TO AN ATTORNEY.”
When you are pulled over for a traffic infraction the police officer has no evidence that you may be driving under the influence. Once you are stopped, the officer begins gathering evidence against you for OVI/DUI. If you do not give him the evidence I can win a charge of DUI/OVI. And there is only one way for the officer to obtain evidence: You must give it to him! Examples are letting the officer engage you in conversation. By doing this he hears your speech hears your thought processes and begins to build his case. He smells your breath. During the process he also views your eyes to see if they are red, bloodshot, or watery. The officer will also ask you for your license, insurance and registration. He is doing this to see if you fumble through your belongings, thereby demonstrating lack of dexterity. Have these papers ready at hand anytime you are in the car. Have them waiting for the officer on the dash.
At this point, the officer must determine if he has enough evidence to remove you from the vehicle. If he believes he does, he will ask you to take standardized field sobriety tests. There is no legal obligation or requirement to perform these tests. Do not take Field Sobriety Tests! Finally, do not be a knucklehead to the officer. Be polite and courteous even if you do not receive the same treatment as most encounters are recorded. Do not argue or try to justify your conduct as all of this will be used against you. Once the officer decides to arrest you there is nothing you can do to avoid the arrest. Let me handle that for you later!
To blow or not to blow, that is the question. Unfortunately, the answer is “maybe” and involves a very complicated investigation of the facts of your case and your personal history. You should NEVER refuse the test without understanding how a refusal would affect YOU. No attorney can know all of the circumstances of your arrest and your personal history, always ask to speak to an attorney when making this decision.
Can you answer “TRUE” to ALL of the following questions? If so, you can politely DECLINE any police test(s) of your blood, breath, or urine with minimum impact. Be prepared and know your rights.
- I am an Ohio license holder, 21 years or older; AND
- I was not involved in an accident involving possible death or to serious injury to ANYBODY, even members of my family, pedestrians or passengers; AND
- I do not have a commercial driver’s license (CDL); AND
- No matter where I currently have a license to drive, I have had no prior drunk driving convictions or deferred pleas for DUI in ANY state within 6 years (from the date of conviction until now).
- Refusing a chemical test can result in harsh penalties which includes a one-year license suspension, but your attorney can fight to get this reduced. In some courts your refusal may be held strictly against you and in others you may be able to get a reduced suspension despite your refusal. In State v. Hill, 2009-Ohio-2468, the Appellate Court upheld the right of a trial court to enhance a penalty based on a refusal to take the chemical test. In most circumstances, a refusal to take a chemical test will result in a longer hard-time suspension (30 days rather than 15 days without any driving privileges). [see the Automatic License Suspension section of this blog]. You should also engage in an honest assessment of your alcohol consumption. If you risk testing over Ohio’s “super-OVI” threshold (over a .17% BAC) you may do harm by taking the test. Take these factors into account when making your decision to blow or not to blow.
Any criminal defense attorney would rather have less evidence against you rather than more, but giving blanket advice to refuse the chemical test is a mistake. Be prepared to make the best decision for you. You can also plan ahead by storing my contact information in your smart phone: (937)776-2671.