A driving under the influence charge, also called a DUI or OVI, is a serious criminal offense that is far more than an inconvenience. Even first-time offenders face a mandatory three days in jail or a residential driver’s intervention program. They must content with loss of their driver’s license for a mandatory minimum of six months up to a possible three years. There are also substantial financial costs including fines, court costs, probation costs, driver’s license reinstatement fees, and a hefty increase in auto liability premiums.

A driver with a prior OVI offense faces substantially greater jail time or residential alcohol treatment, heavier fines and loss of driving privileges for five years and more. Ohio law requires that an ignition interlock device be installed on a convicted driver’s vehicles in any case involving either a high-level breath test or multiple offenses. This means the driver must blow into the device before the car will start. These devices are costly, embarrassing, and intrusive.

What Your DUI Attorney Can Do

Your DUI lawyer can advise you on what defenses are available and what your options may be. For example, the following issues may be present in your case:

• Whether the stop of your car was legally valid

• Your performance on field sobriety tests

• The validity of the officer’s opinion of your impairment

• The credibility and validity of the breath test

Along with improper vehicle stops, how the officer conducts or interprets any field sobriety tests is often incorrect or does not follow protocol. Also, if the officer did not actually see you driving, there are issues of identification and the timing of any drinking in relation to the movement of the vehicle.

Further, a breath test machine must be calibrated correctly. If you have a particular medical condition, it may affect the breath test results as well. There are also multiple issues presently being litigated in regard to the Intoxilyzer 8000, the newest breath testing device being utilized in the state of Ohio.

Many times issues arise that can result in dismissal or mitigation of the offense. In many instances, hiring a skilled and knowledgeable DUI/OVI attorney can result in a favorable resolution of these serious charges.

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This blog is written and published by Laufman & Napolitano, LLC

A DUI (now referred to as OVI) is a serious charge. Even a first offense carries mandatory time in either jail or a court ordered treatment facility.  You will also have a criminal record, lose your license for six months to three years on a first offense, and see your car insurance premiums multiply. In some circumstances, you may have to install an ignition interlock device on your car so that you have to pass a breath test each time you try to start your car.

Should this DUI be your second or greater offense, you risk having to spend substantial time in jail or residential rehabilitation, as well as the collateral consequences of a conviction.

Finding a competent DUI/OVI attorney for your case is essential, and you need to do it quickly. A DUI/OVI charge also has a civil component, which involves the suspension of your license. You are entitled to an appeal of this suspension, but you must request it within a very short time after your arrest.

The following are several avenues you can use to find and retain the right attorney for you.

Referrals

If you have used an attorney in the past for whatever reason, ask them for a referral to a well-known and reputable DUI/OVI attorney. Legal professionals are usually aware of the specialties and reputation of other attorneys, even in areas where they do not practice. If the DUI/OVI attorney referred to you is well-regarded, seriously consider him or her.

Attorney Websites

Many reputable DUI/OVI attorneys have websites. Carefully look at their site to see if the attorney routinely practices DUI/OVI law.

The Consultation

Once you have selected one or two potential attorneys, make an appointment. When you are in their office, observe the following:

• Is the attorney genuinely interested in your case? Is he or she asking relevant questions or acting distracted?
• Will this attorney be handling your case, or will it be handed off to an associate? Although many associates are very competent, you will want to know about their skills and experience in DUI/OVI law. Make sure that you will get the lawyer you are expecting to get.
• Discuss the lawyer’s litigation and trial experience. Although most cases do not go to trial, there are attorneys who rarely do so and may refer the case to someone else to try if you are not satisfied with a plea offer. If the attorney appears reluctant to disclose their trial experience or downplays it, this shows a lack of professionalism and credibility.
• Ask for a copy of the attorney’s retainer agreement, and go over it with him or her. There may be other costs, such as those to hire investigators and experts, which need to be disclosed.
• If you like the attorney, meet the staff and assess their demeanor and professionalism, since you may be meeting with them again during the process. A professional-looking office and staff is a reflection of the attorney as well.

Hire a DUI/OVI attorney who is trial-experienced and with whom you feel comfortable and have confidence in to resolve your case under the most favorable terms.

Every state has their own laws for those alleged to be driving under the influence of alcohol. The common name for this charge is “Driving Under the Influence” (DUI). But in Ohio it is known as “Operating a Vehicle While Impaired” (OVI).  Although still commonly referred to as DUI, the Ohio legislature changed the name to OVI in 2003 to better reflect the widened scope of the law, which now specifically includes drug use.

Under current Ohio law, an OVI charge requires that a driver actually operate the vehicle while impaired.  Operation is defined as causing the movement of vehicle.  This is a change from the law prior to 2003 when a driver could receive a DUI for simply sitting in a car with the keys within the driver’s reach.  It is still an offense, however, to sit behind the wheel of a vehicle while impaired.  At the same time the OVI offense was clarified, the Ohio legislature created the new offense of Physical Control of a Motor Vehicle While Impaired (Physical Control).  The idea behind a Physical Control offense is that a vehicle is a dangerous instrumentality much like a firearm which should not be possessed by an impaired person.  While similar to an OVI in many ways, a Physical Control offense does not carry many of the mandatory penalties and license suspensions required by an OVI conviction.

The interplay between the offenses of OVI and Physical Control can lead to interesting issues in defending these charges.  In a “typical” OVI situation, a citizen who is observed by an officer actually driving a vehicle is certain to be charged with OVI.  But consider the situation of a citizen who exits a bar and decides he should not drive.  He sits behind the wheel of the car and waits to feel safe to drive.  That citizen would likely be charged with Physical Control.  But some drivers are found stopped on the side of the road.  This presents a difficult choice for the officer who never observed any impaired driving.  Was the driver impaired while actually driving or did he or she stop because they were fatigued or felt the effects of alcohol increasing?  Officers will often charge an OVI in these situations which arguably should have been charged as a Physical Control.  Many clients have been found not guilty of such an OVI offense because the officer chose to charge an OVI as opposed to a simpler offense of Physical Control.

Ohioans should be aware that drug and alcohol use can still have legal ramifications even if you decide not to drive.  While the rules vary slightly from jurisdiction to jurisdiction, Ohio does not have a state law making public intoxication a crime.  Instead, public intoxication in Ohio is typically prosecuted as Disorderly Conduct which requires an individual to display offensive, dangerous, or turbulent behavior whether under the influence of alcohol or any other intoxicating substance or not.  Just being under the influence is not enough to support a charge for Disorderly Conduct.

The time when individuals are forced to make critical decisions concerning the charges they face in Southwestern Ohio without seeing the evidence against them might be coming to an end.

As reported in the Cleveland Plain Dealer (http://blog.cleveland.com/metro/2008/11/cuyahoga_judges_approve_open_d.html) judges in Cuyahoga County have approved changes to their local criminal rules calling for “open discovery” between prosecutors and defense counsel.  Once the changes take effect in 90 days, Cuyahoga County prosecutors will have to provide police reports, statements of defendants and witnesses, names and addresses of witnesses, lab and hospital reports and criminal records of defendants and witnesses within a week of an accused’s initial pretrial hearing.  Defense counsel will also be required to provide discovery in advance of trial.

This is a significant step in protecting the rights of accused individuals not only in Cuyahoga County, but also in Southwestern Ohio.  Movements to adopt open discovery rules in counties such as Hamilton County have been resisted.  Hopefully seeing our neigbors in other counties adopt rules to protect the rights of those accused of crimes will pressure local judges to affect similar reforms.