Sobreity Check Points
*Update: For a complete list of sobriety checkpoints in your area, visit The Ohio OVI Blog.
The Supreme Court of the United States has upheld the constitutionality of sobriety checkpoints. These checkpoints must be un-discriminatory in nature and your stop must be short. For example, the officer may pull over every fifth car and ask them if they have been drinking tonight. If you have received a DUI/OVI due to a field sobriety checkpoint allow us, there are still many options available to you. Allow us to vigorously represent you.
Initial Traffic Stop
The typical DUI case starts with a traffic stop. The officer observes a traffic violation and initiates the traffic stop. A DUI traffic stop can be initiated for many reasons, including speeding, marked lanes violations, failure to signal, and equipment violations.
The officer’s subjective motivation for the DUI traffic stop does not matter, only whether there are objective legal grounds to justify the stop, such as a traffic violation.
If the DUI traffic stop is for erratic driving, excessive speed, or any of a number of offenses which may indicate you are driving drunk, the officer is likely to treat the stop as a potential DUI. This means the officer will be making observations as to your physical appearance (blood shot eyes, disheveled clothing, odor of alcohol), your coordination during the interaction (slurred speech, fumbling for license/insurance), and your demeanor (acting drunk, talkative, aggressive). If the officer detects the odor of alcohol, they are likely to treat it as a potential DUI no matter what the underlying reason for the stop.
If the officer suspects a DUI, they will ask you to exit the vehicle to perform DUI field sobriety tests.
Field Sobriety Test
Field sobriety tests are roadside evaluations made by the officer during a traffic stop when the officer suspects drunk driving. Field sobriety tests are used as a basis for probable cause to make a DUI Arrest, along with other signs of impairment from your driving and interaction with the officer.
When stopped, and upon exiting the vehicle, the officer will instruct you to perform certain field sobriety tests. The tests are purportedly designed to test your level of intoxication, and are generally used by the officer to establish probable cause to arrest you for DUI. Despite the situation and what the officer may indicate, you are not required to perform field sobriety tests. There is no penalty for not performing the tests. Although, in many instances, the officer may arrest you anyway.
There are 3 field sobriety tests that are generally used in Ohio: Horizontal Gaze Nystamus (HGN test); the walk and turn; and the one leg stand. These are standardized tests outlined in the NHTSA’s DWI Detection and Standardized Field Sobriety Testing manual. Each test has its own indicators of whether you are too intoxicated to drive.
If the officer believes you have performed poorly on the field sobriety tests, you will likely face a DUI arrest.
Ohio has judicially recognized rules and procedures to ensure the accuracy and reliability of the breath testing program. These rules and procedures can be found in the Ohio Administrative Code. Other rules that affect a breath test can come from departmental testing regulations, training procedures and operator’s manuals. Accordingly, an officer or department that ignores, skips or otherwise violates these administrative rules calls into question the accuracy and reliability of test results.
Most jurisdictions will allow a test in unless the alleged deviations from the rules raise substantial and legitimate questions about the breath test that prejudices the defendant. This is commonly referred to as the “substantial compliance test.” A good Ohio DUI law firm counsel can effectively use these deficiencies to create reasonable doubt as to the test.
O.R.C. 4511.19(D) sets out a three-hour limitation on the collection of your blood, breath or urine. This three-hour period begins at the time of the violation, not at the time of arrest. If the test is not conducted within the three-hour period it may be inadmissible to support a prosecution under O.R.C. 4511.19(A)(1)(b)-(i).
An important part of our investigation will be determining the time of the alleged violation and comparing that to the time of the breath test. This defense becomes especially important in single car auto accidents where neither the police nor any witnesses saw the accident occur. It is also relevant in a multiple car auto accident because the prosecutors often fail to subpoena the necessary witnesses to prove when the accident occurred.
O.R.C. 4511.19(D) also requires that the breath test be conducted on an approved breath-testing devise. Currently, there are two approved breath-testing devices in Ohio – the BAC Datamaster and the Intoxilyzer 5000. The Ohio Department of Health is investigating the use of the Intoxilyzer 8000, but it has not been approved for use as of yet.
For the test result to be admissible at trial, the machine must have been properly maintained and calibrated. The Ohio Administrative Code requires the police agency to maintain three years of records.
A senior operator must perform the calibration of the device. In addition, the person suspected of driving under the influence must be observed for 20 minutes prior to taking the test. This observation period is to make sure that there is not any “oral intake” by the suspect. Some very effective defenses related to the observation period may be present.
Regarding the calibration of the machine, it must be performed no less frequently than once every seven days. If the state fails to demonstrate that the equipment was properly tested then there are clear grounds to have the test suppressed. Another example of the calibration requirement relates to the ethyl alcohol solution used to verify the machine is within +/- .005.
The solution used must not be older than three months from its first date of use and must be kept under refrigeration when not being used. In the investigation of the client’s case, the attorney should ask for the batch and bottle certificate to verify compliance with the Administrative Code.
An administrative license suspension (ALS) in Ohio occurs when you either refuse to take a BAC test or test over Ohio’s designated legal limit. The suspension is automatic, with the officer seizing your license on the spot. An ALS can be from 90 days up to 5 years in duration depending on the prior number of tests you have refused or failed (it is not based on convictions). If you have never failed or refused a test previously, the suspension is 1 year for a refusal, and 90 days for testing above the limit.
An Ohio ALS is civil in nature. You have the right to appeal the suspension which must be done quickly to avoid waiving the appeal. Generally, the issues on appeal are whether the arrest was reasonable, whether the test was requested, whether you refused or failed, and whether you were made aware of consequences of refusal or failure. If the ALS appeal is sustained, the court could still suspend your license if it finds your driving poses a threat to public safety.
In most instances, you will be eligible for limited driving privileges under an administrative license suspension (ALS). These privileges are generally work, medical, or school related. However, these are not available right away and require a wait of just over two weeks to several months depending on the circumstances.
A DUI arrest, just like an arrest for any other offense, must be based on probable cause. If the officer arrests you for Ohio DUI, it is their belief that they have probable cause that you are driving drunk. Probable cause for an Ohio DUI arrest is established based on everything the officer has observed to that point.
Upon arrest for DUI in Ohio, you will be transported to a police station (not necessarily the station of the officer that is making the arrest). It is at the station where the officer will request a breath, blood, or urine test. This testing must be done within a certain time period from your Ohio DUI arrest.
Also, at the station, the officer may attempt to interview regarding your intake of alcohol and what you had been doing prior to the stop. The officer must Mirandize you for this interview.