OVI cases are complicated. More complicated than most people realize. Due to the myriad of issues these types of cases present, they can be difficult to defend. That is why it is so important to hire an attorney who knows the ins and outs of drunk driving defense. Mr. Fox has built a solid reputation in the legal community for his knowledge and expertise in OVI/DUI Defense, and can be trusted to help you navigate the treacherous waters that can be a DUI/OVI case.
A good OVI/DUI attorney should be able to discuss with you not just the facts of your case, but also the potential impact of an OVI/DUI conviction on your job, career or life. Often times, an OVI conviction can cause serious consequences for one's career. There are a number of professions where an OVI can have a substantial impact. If, for example, you are a licensed professional such as a doctor, lawyer, nurse or pharmacist, it is extremely important that you hire an attorney who understands your situation and the possible consequences of an OVI conviction. People such as pilots, brokers and bankers need to also be aware of potential ramifications if charged or convicted of OVI. Furthermore, if you are employed in outside sales, or you possess a CDL, and your livelihood depends on your ability to drive, an OVI conviction can be devastating. Having an attorney who knows how to handle these types of cases is of the utmost importance.
The OVI Defense Process: An Overview
Arraignment: Your arraignment is essentially your initial appearance on the OVI charge. At that initial appearance, your attorney will address preliminary issues with the case. Depending on the court where your case is heard, your appearance may or may not be required. In some jurisdictions, your attorney can handle these preliminary matters without your presence in court. However, in other courts, your appearance will be required for even the most minor court dates. Frequently, the initial arraignment date is where your attorney will appeal your administrative license suspension. Depending on the jurisdiction of your case, along with the facts and circumstances of your case, your attorney may be able to secure a stay of the administrative license suspension so that you may begin driving again immediately. In other jurisdictions, a stay may not be possible. In those situations, every attempt should be made to secure limited driving privileges at the earliest opportunity. How soon you are eligible to drive depends on a number of factors. Typically an administrative license suspension requires a period of hard time where you are in eligible to drive at all. However, after that hard time, you can petition the court for discretionary limited driving privileges. Furthermore, at the arraignment date your attorney will typically start the discovery process to gain more information in regards to the allegations against you. Then, depending on the circumstances, your attorney will either continue the case for another arraignment date or enter a not guilty plea on your behalf. But regardless, at some point during the arraignment process a plea will need to be entered on your behalf.
Pretrial: The pretrial is also a preliminary-type hearing. It is basically the first hearing date with your assigned judge and assigned prosecutor. In some smaller jurisdictions where there is only one judge, obviously your case will be heard by that judge. However, in larger jurisdictions where there are multiple judges, your case will typically be randomly assigned to one of those judges. The prosecutor assignment may then be based upon such things as the assigned Judge, or the defendant’s last name. At the pretrial date, your attorney and prosecutor may begin the process of potential plea bargaining. More often, your attorney will attempt to complete the discovery process at this point, which would include trying to secure any additional audio, video or written evidence in your case. Your attorney may also discuss with issue of limited driving privileges with the Judge if those have not already been granted. Typically, the pretrial date will then be continued for either another pretrial to finish the discovery process, or a contested hearing date called a motion hearing or a suppression hearing.
Motion Hearing: The motion hearing is an evidentiary hearing based upon motions to suppress and/or dismiss that your attorney is likely to file with the court in most OVI/DUI cases. At the motion hearing, there is no jury present, however the judge may typically hear evidence from witnesses who are subject to cross-examination, and hear arguments from counsel, in regards to preliminary evidentiary issues in the case. The motion hearing, for example, is where your attorney can argue preliminary evidentiary issues such as was there reasonable suspicion to stop your vehicle, or was there probable cause to arrest you? It is at this stage, where your attorney will also need to challenge the admissibility of any chemical test. Typically then, based upon the outcome of the motion hearing, your case will either be continued for a disposition or a trial date. Consequently, the motion hearing is the stage of the proceedings where you will often reach a potential resolution in the case.
Disposition: The disposition date is essentially the final appearance on your case. Typically the case will be set for disposition date if there has been some type of negotiated plea bargain which is reached at the pretrial or motion hearing date. This will be the date where the judge imposes a sentence based upon the plea that is entered. Typically if we are setting the case for disposition date it means that we have been offered some type of amended charge to the benefit of the client. If the prosecution was unwilling, or we were unable, to reach a plea agreement, the case will usually then be set for a jury trial date.
Jury Trial: The jury trial is an opportunity for the case to be litigated on its facts. At the trial date, the prosecution bears the burden of proving every element of the case against you beyond a reasonable doubt. In misdemeanor cases, the jury is comprised of eight members of the community. At the trial, the decision of the jury must be unanimous, meaning all eight members of the jury must be firmly convinced of either your guilt or innocence. At the trial it is your attorney's obligation and duty to challenge the state’s case and submit a vigorous defense on your behalf. If the jury acquits you, you will have no OVI/DUI record of conviction at all. If you are convicted, the court will typically proceed to sentencing you on the OVI/DUI and any other related charges.
ADMINISTRATIVE LICENSE SUSPENSIONS
Many OVI cases will include a chemical test of one's blood, breath or urine, or a refusal of such test. Depending on the facts and circumstances of the case, and based upon any prior history, the fact that you tested or refused can impact the mandatory minimum penalties that the court must impose in your case if you are convicted of OVI. The same factors are likely to determine the length of your Administrative License Suspension (ALS).
Administrative license suspensions: Typically, an Administrative License Suspension, which is essentially an immediate suspension of your right to drive, will be imposed anytime you are asked to take a chemical test and you either refuse to test, or you submit to a test which yields a result over the legal limit. Both the length of your suspension, and the duration of time in you which you must wait to be eligible for driving privileges, will depend largely upon your prior history. In determining the length of your ALS, there is a six year look back. If you have previously been convicted of OVI, or refused to take a chemical test, within the previous six years, that will impact the length of licenses suspension and hard time in your case. In Ohio, administrative license suspensions are as follows:
REFUSAL OF A CHEMICAL TEST
First refusal: One-year suspension with optional driving privileges after 30 days.
Second refusal: Two-year suspension with optional limited driving privileges after 90 days
Third refusal: Three year suspension with optional limited driving privileges after one year.
Four or more refusals: Five-year administrative suspension with no driving whatsoever for three years. Optional limited driving privileges after that time.
In all of these circumstances the judge could require you to install an ignition interlock device, or register yellow license plates, as a condition of driving privileges.
Failed chemical test (Test over the legal limit):
Failed test: 90-day license suspension with optional limited driving privileges after 15 days.
Second failed test: One-year license suspension with optional limited driving privileges after 45 days.
On either a first or second failed test, interlock and yellow plates are optional and can be ordered by the court.
Third failed chemical test: Two-year suspension with optional limited driving privileges after 180 days. Yellow license plates are optional, but interlock is required as a condition of driving privileges if the OVI was alcohol related.
Fourth or more failed chemical test: Three years license expansion with no limited driving privileges.
An administrative license suspension may be appealed at your initial arraignment date, or within 30 days of that initial appearance. The grounds on which a defendant can challenge an administrative license suspension is limited, however a prudent attorney will file an appeal of the suspension in order to preserve the right to challenge the validity of that suspension at some point in the future.
Chemical tests: In Ohio, you can be charged with an additional offense of operating a vehicle with a prohibited concentration of alcohol and/or drugs in your system. Typically the substances which may be tested include blood, breath or urine. Ohio further distinguishes between a high concentration (or Tier) offense and a low concentration (Tier) offense. A low tier offense is defined as any blood or breath test with the result of .08% or higher but less than .17%. A low tier urine test as is defined as a result of at least .11 grams but less than .238 g. A high tier test is anything above a .17% for a breath or blood test, and in a urine test, a high test is defined as anything .238 g or above.
First offense in six years: Three days in jail or three days to be served in a Certified Driver Intervention Program (DIP). Maximum incarceration exposure is up to six months in jail. A minimum fine of $375, up to $1075. A driver’s right suspension of at least six months up to three years. If the offense is a first offense in six years but the defendant provides a high test or has a prior conviction within the previous 20 years, and refuses the chemical test, that person would be subjected to six days in jail or three days in jail and three days in the DIP. Further, the defendant would be required to have yellow license plates as a condition of limited driving privileges.
Second offense OVI within six years: A minimum of 10 days in jail up to six months of incarceration. A mandatory minimum fine of $525 up to $1625. A license suspension of anywhere from one year to five years. Yellow license plates and an ignition interlock device mandatory as a condition of limited driving privileges. Furthermore, the defendant’s vehicle would be subject to a 90 day immobilization period. The person would have to undergo a mandatory alcohol or drug assessment incomplete any recommended treatment. Additionally, if the person is charged with a high chemical test, or having refused a chemical test with a previous conviction in the preceding 20 years, that person would be facing a mandatory minimum 20 days in jail.
Third offense OVI in six years: A third offense OVI is considered an unclassified misdemeanor because it does not fit the cookie-cutter definition of a 1st degree misdemeanor. While most first-degree misdemeanors are punishable by a maximum of six months in jail, a third offense OVI subjects the individual to a maximum term of incarceration of up to one year. The mandatory jail time, if convicted of a third offense OVI is 30 days in jail. However if the person is charged with a high test, or has a prior conviction in the preceding 20 years, and refuses a chemical test on the instant case, he or she would be subjected to a mandatory minimum jail term of 60 days. The fine for a third offense ranges from $850-$2750. Further the license suspension ranges from two years to 10 years with ignition interlock and yellow license plates as a condition of any potentially granted limited driving privileges. In addition, the defendant’s vehicle would be subject to forfeiture if the defendant is the registered vehicle owner. And finally someone convicted of a third offense OVI would have to undergo a mandatory alcohol and/or drug addiction counseling program.
Additional OVI offenses: If someone is charged with a fourth OVI offense in six years, or a sixth OVI in 20 years, that charge would be treated as a felony. Also, if an individual has already been convicted of a felony OVI, any subsequent OVI charges would be filed as a felony as well. A felony OVI is a serious offense that would subject a defendant to a potential prison term and lifetime license suspension, in addition to some more serious penalties.