How to Get Out of (or Beat) an OVI in Ohio

In Ohio, what many states call a DUI charge (for driving under the influence of alcohol or drugs) is usually called an OVI (operating a vehicle impaired), but despite the different name, the consequences – ranging from fines to jail time to license suspension – are just as serious. After blowing into that breathalyzer and getting charged with an OVI, Ohio defendants do have some options in and out of court that may help them challenge the charge, or at least lessen the legal fallout.

Even if a defendant has blown an above-the-limit BAC (blood alcohol concentration) breath test, they're still just facing an OVI charge, which is not yet a conviction. To prevent that conviction, the defendant's team will need to challenge the drunk driving charge. The Law Offices of Brian J. Smith in Rocky River, Ohio, make note of some common tactics used by criminal defense attorneys for preparing to mount that challenge.

Right off the bat, a not-guilty plea gives the defendant the right to challenge the OVI charge in a court of law, taking the charge to trial. The defendant may also request a pretrial, in which they meet with a prosecutor to argue that the case should be reduced or dismissed entirely.

Requesting discovery, which is the process of exchanging information regarding the evidence and witnesses each legal team will offer at the trial, per the American Bar Association, may increase the defense's chances of success, as the legal counsel can then identify specific areas to challenge. The defense attorney may even consider making a motion in court to suppress certain pieces of evidence.

​Read More​: How to Know If a DUI Is on Your Record

Smith also notes that some mistakes made by law enforcement at the time of the traffic stop may be leveraged by the defendant's attorney to challenge the charge. Some commonly known defenses that span well beyond the OVI sphere include when the arresting officer fails to read the offender their Miranda rights upon arrest; a lack of probable cause (or illegal search and seizure, per the Fourth Amendment of the U.S. Constitution); or the failure to complete the charging documents properly. The potential challenges, however, get more specific to OVI issues.

In Ohio as elsewhere, implied consent laws mean that when motorists apply for a driver's license, they consent to take sobriety tests. As such, similar to the Miranda rights, officers are required to read the implied consent warning before administering a breathalyzer or blood test. Section 4511.191 of the Ohio Revised Code states that the police officer must advise the person at the time of arrest that if they refuse to take the test, the police officer may use any reasonable means necessary to cause them to submit to said test. Officers also must inform offenders that they have the right to take an independent chemical test at their own expense.

Also of note, if law enforcement obtains the defendant's blood test results from a hospital where the driver received treatment, but the officer or agents failed to obtain a proper warrant to get those results, this can present a serious challenge to the OVI charge in court.

The sobriety test itself can also provide a source of potential legal challenges to an OVI charge in Ohio. All field sobriety tests in the state must be the standardized field tests described in the most recent version of the DWI Detection and Standardized Field Sobriety Testing manual (or SFST) from the National Highway Traffic Safety Administration, and they must be conducted in accordance with the protocols laid out therein. Deviations from this guide can cause a problem for the prosecutor.

It's also possible that the sobriety test was affected by outside factors, such as the driver's medical conditions, poor conditions in the testing location, or that the driver's impairment can be attributed to a different cause, such as the use of legal prescription medication, a medical issue or even involuntary intoxication. As the law firm of Gounaris Abboud, LPA, of Dayton and Springboro point out, improperly calibrated or improperly administered testing equipment, such as breathalyzers, blood tests or urine tests, may not yield admissible evidence in court.

​Read More​: What Will My Probation Officer Do If I Fail an Alcohol Test?

Just as the Fourth Amendment protects drivers in Ohio and across the United States from illegal search and seizure, the Constitution of the United States often comes into play as a foundational defense against OVI charges. Based on their experience defending OVI cases in Columbus, the attorneys at Luftman, Heck & Associates report some of the more common constitutional defenses.

For instance, the Fifth Amendment of the Bill of Rights protects Americans from making incriminating statements against themselves, meaning that manipulation or coercion from the officer at the time of the OVI arrest can be a serious legal weapon against the prosecution. And Luftman clarifies that the Fourth Amendment, originally written to protect homes from warrantless search and seizure, does indeed apply to vehicles based on court precedent. If the defense finds that any evidence was obtained in an unconstitutional manner, that evidence can be suppressed in court.

At the court's discretion, first-time OVI offenders in Ohio may have the option of enrolling in a three-day Driver Intervention Program (DIP), an educational course on traffic safety and substance abuse and addiction certified by the Ohio Department of Mental Health and Addiction Services, rather than serve the mandatory three-day jail sentence. Offenders who have trouble paying for the DIP and who receive public assistance, such as disability or Medicaid, may qualify for state assistance for the course fees.

OVI defendants in the Buckeye State might choose to plead guilty to the OVI charge against them rather than pursue a trial. Pleading guilty can allow the defense lawyer to attempt to negotiate a plea bargain with the district attorney. This won't necessarily get the defendant out of the charge, but it can potentially ease the penalties or, as lawyer Richard Stim at Nolo's DrivingLaws notes, even result in a suspended sentence if the OVI was the driver's first offense.

In situations like this, a common tactic is for the defendant to plead guilty to a lesser offense than an OVI, such as reckless operation of a motor vehicle. Here, there will still be charges and penalties, but they'll be lesser than those associated with an OVI conviction.

​Read More:​ How to Get a DUI Removed From Your Driving Record