Primary sources of information for a DUI/OVI lawyer, are the records that are created by law enforcement officers.  There are several types of DUI/OVI records.  The records most people think of, include for example, (1) Statement of Facts written by an officer (which sets forth the reasons for arresting a person for DUI/OVI), (2) written forms documenting how well (or poorly) the person accused performed the standardized field sobriety tests (if any were taken); (3) written statements of the person charged (or oral statements reduced to writing), and (4) Implied Consent form that is read by the officer to the person under arrest for DUI/OVI (informing the person arrested of issues relating to taking or refusing to take a breath/blood alcohol test).

However, there are other records which are sometimes overlooked or not carefully reviewed, but which may be vital to the defense of a DUI/OVI, and/or to the appeal of an Administrative License Suspension (ALS Appeal).  These records address whether or not an alcohol breath testing machine was in proper working order, and whether or not the officer conducting the test was qualified to do so.  These records are generally maintained at the police station where the breath test was performed.

These records provide, for example, (1) information concerning when and how the breath testing machine was calibrated (the law has specific requirements), (2) information about whether or not the person who did the machine calibration was qualified to perform the calibration, and (3) information about whether or not the officer conducting the breath test was qualified to conduct the test.  The records also provide information about errors, malfunctions, and/or repairs of the machine.  Depending upon the nature of the error, malfunction, and/or repair, it may be determined that the machine should not have been used, because it was not in proper working order as required by Ohio law.

The bottom line is that unless all of the pertinent records and documents have been carefully checked and reviewed, it is impossible for a person charged with DUI/OVI to have the necessary information to make decisions about his or her case.  So, if you have been arrested for DUI/OVI, be sure to talk with your lawyer about the records he or she reviewed.

Due to the increasing use of roadside Portable Breath Testing (PBT) by Ohio law enforcement, I thought it would be helpful to discuss issues concerning how a PBT may impact the case of a person charged with DUI/OVI in Ohio.  This blog is not designed to cover every issue PBTs create, because the law concerning PBTs is complex and constantly being reviewed.  If you have been charged with DUI/OVI, be sure to contact a lawyer, such as myself, to be certain that all issues and potential DUI defenses are being raised on your behalf.  A decision not to fight a DUI/OVI should never be based upon a PBT!

A PBT device is a handheld machine, into which a person suspected of DUI/OVI blows a breath sample.  Most often the PBT is performed while the person is still at the scene where he/she was stopped and detained by law enforcement.  The PBT results theoretically give an estimate of a person’s blood/breath alcohol content (BAC).  In Ohio, it is “Per Se” illegal to operate a vehicle (including a bicycle) with a BAC equal to or greater than .08.  The “Per Se” charge is discussed in a previous blog.

Because of the “Per Se” law, Ohio courts have said that the reliability and accuracy of a BAC test is crucial, in order to use it as evidence to convict a person of “Per Se” DUI/OVI.  As a result, in Ohio, the only person with the authority to determine whether or not a BAC testing machine/device is accurate and reliable, is the Director of the Ohio Department of Health.  However, even if a machine/device is approved by the Director, that does not automatically mean every test result from an approved machine is valid (this is one reason a qualified DUI attorney is important).  Currently, no PBT device is included in the list of approved BAC machines/devices.  As a result, a conviction for DUI/OVI should not be based upon a PBT.

So, if the PBT result is not reliable enough to be used as evidence to convict a person of DUI/OVI, what is the purpose of a PBT?  Simply, in many parts of Ohio (not all), the PBT result is used by law enforcement as evidence to prove that the officer had a reasonable basis to believe that a person is intoxicated for DUI/OVI purposes.  Depending on the circumstances of a case, it may be appropriate to challenge whether or not an officer had specific information to stop, detain and arrest a person for DUI/OVI.   To determine these issues, some courts look at the PBT as one piece of evidence, along with other evidence of intoxication, such as the odor of alcohol, bloodshot eyes, slurred speech and the results of field sobriety tests, to determine if an officer was justified in detaining, investigating and arresting a person for DUI/OVI.  This court determination is not a decision on a person’s guilt or innocence.

It is important to understand that a person has a choice whether or not to take a PBT, in the same way that a person has a choice whether or not to perform field sobriety tests.  I discuss the issue pertaining to Ohio field sobriety testing in my website.  However, officers do not voluntarily tell a person a PBT is not mandatory, unless asked!

Because no PBT device has been determined to be reliably accurate by the Director, at this time a person’s driver’s license should not automatically be suspended, under the Ohio “implied consent law,” for refusing to take a portable breath test.  The “implied consent law” applies only to the refusal to take an approved BAC test.  Again, keep in mind the law pertaining to PBTs is frequently being reviewed, so make sure to discuss this issue with an attorney!

I believe another reason officers want people to take a PBT, is the psychological impact on a person accused of DUI/OVI, if the PBT result is equal or greater than .08.  Such a test may make a person think they have no defenses or issues to fight a DUI/OVI.  That frequently is not the case.  There may be multiple reasons to challenge a DUI/OVI.  As I said earlier, a decision not to fight a DUI/OVI should never be based upon a PBT!

Good luck and safe driving!

Like it or not, many Ohio law enforcement officers view any person in a stopped vehicle as fair game for being arrested for more serious offenses, no matter how innocuous the initial reason for stopping the vehicle.  Once officers have a reason to approach a vehicle, they are looking for signs of alcohol/drug impairment, or looking for alcohol and/or drugs in the vehicle.

So, what can people do to protect themselves from potential law enforcement intrusion?  First, as I discuss in my website, take the time to do a weekly inspection of your vehicle to make certain that the headlights, taillights, brake lights, license plate light, and all turn signals are in proper working order.  Not only does this help make your vehicle anonymous and take away reasons for law enforcement to stop you, it also makes your vehicle safer and easier for other drivers to see.  And keep in mind that if the turn signals do not work, when a turn is made without using turn signals, law enforcement will interpret that as an indication of impaired driving in Ohio – DUI/OVI!

One other thing a person can do to be an anonymous driver, is use cruise control to drive within the speed limit.  Driving too fast, too slow, or driving with erratic speeds, is against the law – – – and to law enforcement is often a clear sign of impaired driving.  Using cruise control to stay at or just below the speed limit, keeps a person within the law and outside the focus of law enforcement.  Additionally, using cruise control to drive within the speed limit can act as evidence of stable, not impaired driving, if a person has to defend against a DUI/OVI in Ohio.

I discuss in my Columbus Ohio DUI Lawyer website information to help decide whether or not to talk with law enforcement, and whether or not to perform field sobriety testing, in the event a person is stopped and law enforcement is looking for signs of impairment.  I will discuss those topics in greater detail in future blogs.

The best way to prevent being placed in this situation, is to be a safe driver and use these tips to help protect yourself from unwanted intrusions from law enforcement.

The two separate offenses are: (1) “Per Se” charge, and (2) ”Impaired” charge.

The “Per Se” charge makes it illegal for a person in Ohio to operate a vehicle with a BAC (blood/breath alcohol content) equal to or above .08 percent (a different BAC level applies for people under 21 years of age, or if a urine test has been administered).  The “Per Se” charge also makes it illegal to drive with a blood/urine drug content equal to or above specified statutory levels (different drugs have different levels).  This charge is also known as “operating a vehicle with a prohibited alcohol and/or drug content.”

The “Impaired” charge makes it illegal to operate a vehicle if the person is ”noticeably impaired” by alcohol and/or drugs.  This charge is also known as “operating a vehicle under the influence of alcohol and/or drugs.”

What do the two separate DUI/OVI charges mean for people driving in Ohio?  A person  may only be charged with the ”Per Se” offense when the person consents to take a breath, blood or urine test to determine the quantity of alcohol and/or drugs in the body, and the test results equal or exceed the statutory legal limit (e.g., .08 percent for alcohol).  If the alcohol/drug test result does not equal or exceed the limit established by Ohio law,  or if a person does not take a BAC and/or drug test, then the person cannot be charged with a violation of the “Per Se” DUI/OVI law.  This charge has nothing to do with how well or poorly a person operates a vehicle.

The “Impaired” DUI/OVI charge relates to how well or how poorly a person operates a  vehicle.  The “Impaired” charge says that irrespective of how much or how little the amount of alcohol and/or drugs a person has in his/her body, the alcohol and/or drugs   “noticeably impaired” the person’s ability to operate a vehicle.  This charge is based on how well or how poorly a person drives a vehicle.  It may also be based upon how well or how poorly a person performs field sobriety testing (e.g., walk straight line, count numbers, etc.).  It makes no difference what the results of alcohol and/or drug testing may be, or even if a person refused to submit to alcohol and/or drug testing.  This is the traditional and historic ”driving under the influence” offense in Ohio.

In Ohio, the only time a person may be charged with both the “Per Se” and “Impaired” DUI/OVI offenses, is when the person accused of DUI/OVI takes an alcohol and/or drug test, and the results are equal to or exceed the statutory legal limit.  Under that circumstance, the law enforcement officer is also going to allege that the accused’s ability to operate a vehicle was “noticeably impaired” by the alcohol and/or drug, even if the only reason a driver was pulled over concerned a minor equipment violation, such as a rear light being out.

The reason law enforcement charges a person with both DUI/OVI offenses, is because in the event it is determined by a court that the alcohol and/or drug test is invalid, and dismisses the “Per Se” offense, the officer still has a ”fall back” DUI/OVI charge (“Impaired”) to pursue against the person.  If the court does not invalidate the alcohol and/or drug test, and permits the prosecution to proceed on both charges, the person may only be convicted of one charge, not both.

Of course there may be various ways to get both charges dismissed, which will be the topic of future blogs.