Summary of Ohio DUI Laws.
Please Note: It is almost impossible to publish, in a book or pamphlet or even electronically, a “current” summary of Ohio DUI laws as the Ohio legislature is constantly changing the laws. (In 2003-04 alone the basic Ohio DUI law was rewritten 5 different times.) As this summary is going to print Ohio has just passed, but the Governor had not yet signed, a Bill that will double the list of “per se” offenses listed below. The new offenses will be “law” sometime before the end of 2006 and will specify certain levels of drugs and metabolites that, if found in blood or urine of a motorist, will constitute a “per se” OVI (DUI) Drug violation. The Bill includes other changes, related to the new provisions, which appear to be mostly minor in nature.
Please consult the sources listed herein for these and other changes to Ohio law after publication.
COMMON TERMS, ACRONYM(S) FOR DRIVING UNDER THE INFLUENCE: “Drunk Driving”, “Impaired Driving, OVI, OMVI, DUI, and DWI are interchangeable in Ohio. The official acronym or term is “OVI” as, in 2003, the Ohio legislature invented the term “Operating a Vehicle (while) Impaired” or OVI as the catchall term. Ohio Lawyers tend to use the term DUI most of the time, rather than OVI, as DUI is a more universal term.
Note: OVUAC (aka OMVUAC) is a legally distinct term used for certain OVI charges that apply to those less than age 21. (See OVUAC below.)
PROHIBITED VEHICULAR ACTIVITY: “operate.” Note: Until recently, in Ohio, “operate” and DUI included activity in completely stationary vehicles but (post 2003) operation is “to cause or have caused movement” of the vehicle. (But see related offense of “Physical Control.”) The phrase “have caused movement” is vague and problematic to apply and is likely to be interpreted inconsistently by courts, thus it may be ripe for litigation.
COVERED VEHICLES OR DEVICES: ”any vehicle, streetcar or trackless trolley.” “Vehicle” is defined broadly; “every device” motorized or not “by which any person or property may be transported or drawn” upon a road. Includes a bicycle (with or without a motor) but excludes any other device “moved by human power.” Also excludes any motorized wheelchair, any electric personal assistive mobility device, anything using overhead electric trolley wires or used exclusively upon stationary rails or tracks.
COVERED LOCATIONS FOR DRINKING-DRIVING OFFENSES: ”within this state” whether on a road or not. Note the ALS (officers right to request a chemical test -see below) only applies when vehicle is traveling “on a highway or any public or private property used by the public for vehicular travel or parking within this state or (being) in physical control of a vehicle.” RC 4511.191
DRINKING-DRIVING OFFENSES: [ORC § 4511.19(A)(1)(a-i), § 4511.19(B) § 4511.19(A)(2)]
(1) OVI Impaired (§ 4511.19 (A)(1)(a)) Operating, etc., while under the influence of alcohol, a drug of abuse, or alcohol and a drug of abuse.
(2) OVI “Per Se” Offenses. (§ 4511.19 (A)(1)(b-i) Ohio has two per se “tiers” for alcohol in each bodily substance. The per se offenses are operating, etc, with a:
(A) Blood Alcohol Content (BAC whole blood) of .08 (low tier) or .170 (high tier);
(B) Blood Plasma Content (BAC blood serum) of .096 (low tier) or .204 (high tier);
(C) Breath Alcohol Content (BrAC) of .08 (low tier) or .170 (high tier);
(D) Urine Alcohol Content (UrAC) of .11 (low tier) or .237 (high tier.)
(3) OVUAC (OVI Under Age Consumption; § 4511.19 (B)) is a per se applied to those less than 21 years old who operate, etc with a .02 BAC, .03 BAC-serum, .02 BrAC, or .028 UrAC. (Can also be charged with OVI impaired and low and high tiers if applicable. An OVUAC conviction is counted as a “prior” OVI.)
(4) OVI Criminal Refusal (§ 4511.19 (A)(2) created 9-23-04.) Committing an OVI offense if person has already been convicted of OVI or OVUAC within 20 years of new offense and person refuses a chemical test after being requested to take a test and after being provided the “advisals” contained on the Implied Consent form (BMV 2255 Form.) Notes: does not apply to “optional” roadside “preliminary” breath tests (PBT.) Person must be found guilty of the new OVI to be convicted of OVI Criminal Refusal.
(5) Physical Control (of vehicle while impaired (§ 4511.194): Requires proof of elements of an OVI (impaired or per se) except for the element of operation (movement.) Only requires that one be “in the driver’s position … having possession of the ignition key or other ignition device.” (Physical Control is not considered an OVI conviction and does not constitute a “prior” OVI conviction.)
DEGREE OF IMPAIRMENT REQUIRED FOR CONVICTION: Impairment to a degree that “deprives one of the clearness of intellect and self control that one would otherwise possess” (see State v. Hardy, 28 Ohio St. 2d 89, 276 N.E. 2d 247 (1971)) or “appreciably impaired the ability to drive.” (See Ohio Jury Instructions -OJI.)
PENALTIES FOR DRINKING-DRIVING AND PHYSICAL CONTROL OFFENSES:[ORC §4511.19(A)(B) and (G). See also §4510.02 - Class Suspensions, § 4510.036 - Points.]
Unless otherwise noted herein OVI offenses are First Degree Misdemeanors. The following apply to “Low Tier” OVI “Per Se” and OVI “Impaired” misdemeanor offenses. (See additional mandatory jail time, below, for “High Tier” OVI per se and Criminal Refusal offenses.)
(1) First OVI Offense – no prior (within 6 years*): Jail term of 3 days to 6 months; fine of $250 to $1,000; license suspension (Class 5) of 180 days to 3 years. 6 points against License. (See also ALS “Hard Time” below.)
Note all OVI license suspensions include a period of “Hard Time” with no privileges; the Hard Time Suspension periods for an OVI conviction are the same time periods as a corresponding ALS Suspension. (However, the ALS and OVI cases and suspensions are separate.) See ALS below and ALS “Hard Time” to ascertain when an offender would be eligible for limited privileges either pretrial or after conviction.
(2) Second OVI Offense – 1 prior (within 6 years*): Jail term of 10 days to 6 months; fine of $350 to $1,500; license suspension (Class 4) of 1 year to 5 years.(See “Hard Time” below.) Vehicle immobilized for 90 days. 6 points against license.
(3) Third OVI Offense – 2 priors (within 6 years*): Jail term of 30 days to 1 year; fine of $800 to $10,000; license suspension (Class 3) of 2 years to 10 years.(See “Hard Time” below.) Vehicle subject to forfeiture. 6 points against license. (This offense is an “unclassified misdemeanor” allowing for a 1 year sentence and the high fine.)
Double Jail Time for High Tier Per Se and Criminal Refusal: Conviction of a “High Tier” Per Se offense or Criminal Refusal offense (refusal and prior OVI within 20 years), will double each of the minimum periods of incarceration specified above. Note: Criminal Refusal requires proof and conviction of the new OVI Impaired offense. High (and Low) Tier Per Se charges and OVUAC do not require proof or conviction of “impairment.”
Distinctive License Plates: (aka “Drunk Plates”) Conviction for most OVI offenses and some other traffic offenses require the use of “Distinctive License Plates.” (Currently red & yellow.) See §4511.19 (G)(4), §4510.13 (A)(7), § 4503.231, § 4507.02. Note: For any OVI conviction court may require them. The court must require the offender to obtain distinctive plates -in order to grant any driving privileges- if any of the following apply: If the person has any prior OVIs within 6 years or if the person has no priors but is charged with a High Tier or Criminal Refusal.
If the person has 1 prior felony, 3 prior OVI convictions w/in 6 years or 5 prior OVI convictions in 20 years an OVI offense is a Felony. Felony sentences are governed by both the OVI statute (4511.19 (G)(1)(b)-(e)) as well as the general Felony Sentencing Statutes (2929.13 etc sec) and specific Felony sentencing statutes (e.g. 2941.1413.) Because of the interplay (and constant changes) in these statutes the below is only a general guide to felony OVI sentences. The minimum sentence authorized by law in a given case could be much greater than shown below. Note: as with misdemeanors, felony minimum sentences are doubled (as indicated below) for High Tier or Criminal Refusal offenses.
(4) Felony 4 OVI – (RMO or Repeat Misdemeanor Offender). If a person has 3 or 4 prior misdemeanor OVI convictions within 6 years or 5 prior misdemeanor OVI convictions within in 20 years OVI is a Felony of the Fourth Degree. Note: although they are both F-4’s and carry the same fines, suspensions and vehicle sanctions 5 priors in 20 years carries significantly increased jail / prison time. (See 5 priors w/in 20 specification below.) For F-4 OVIs without the 5 in 20 spec the following apply.
The judge can either impose local incarceration* and/or jail term ranging from 60 days (low tier) or 120 days (High Tier or Crim Refusal) to 1 year -OR- a prison term of 60 days (Low tier) or 120 days (High Tier or Crim. Refusal) plus an (optional) addition prison term of 6 to 30 months. Additional penalties include post release control e.g. (probation / parole) with conditions, including mandatory alcohol / drug treatment; fine of $800 to $10,000; license suspension (Class 2) of 3 years to life. (See “Hard Time” below.)Vehicle subject to forfeiture. 6 points against license. (*Local incarceration can, at the judge’s discretion, be served in jail, a community-based correctional facility, a halfway house, or an alternative residential facility.)
(5) Felony 3 OVI – (RFO) Repeat Felony Offender: Any new OVI with a prior Felony OVI Conviction is a Felony 3. Where there is a prior Felony and a total of 4 other prior felony or misdemeanor convictions OVI is an F-3 but the 5 within 20 Spec (below) applies re jail / prison time. Low Tier, High Tier and Criminal Refusal distinctions apply.
An F-3 OVI carries a mandatory prison term of 60 days (Low Tier) or 120 days (High Tier or Crim Refusal) up to 5 years in prison. Additional penalties include post release control (probation / parole) with conditions, including mandatory alcohol / drug treatment; fine of $800 – $10,000, license suspension (Class 2) 3 years to life. (See “Hard Time” below.). Vehicle subject to forfeiture. 6 points against license.
Five Priors within 20 Years Specification:
When a person has 5 prior OVI convictions and the state sets this out as a “Specification” in the indictment and proves the priors and the OVI at trial the offender shall be sentenced to a mandatory prison term of one, two, three, four, or five years. (See RC 4511.19 (G)(1)(d)&(e), 2941.1413 and 2929.13(G)) Obviously, the same applies if the offender pleads guilty to the OVI and to the specification. The statutes provide that is prison term shall be served “consecutively to and prior to the prison term imposed for the underlying [OVI] offense and consecutively to any other mandatory prison term imposed in relation to the offense.”
Note about Six year “look back”:
Caveat 1: The 6 year look back does not apply if person has 5 priors in 20 years (see above.) AND may not apply under local codes (see Local OVI Laws below.) Caveat 2: The 6 year look back period is likely to be modified / eliminated by the legislature in the future Caveat 3: A Judge can look back beyond 6 years in deciding jail time and other penalties to impose (“look back” only sets the “minimum” that court must impose) and can impose significantly more than the minimum penalties. In any event, in making decisions about a DUI case one should not assume that in 6 years a conviction will not matter.
Expungement – Sealing of Records: In Ohio an OVI (DUI) can not be expunged.
Other OVI Related Misdemeanors
OVUAC – A Misdemeanor 4 Jail term of 0-30 days; Fine $0-250; license suspension (Class
6) 90 days to 2 years – hard time (no privileges) 60 days. Repeat OVUAC – OVUAC with 1 to 4 OVI and/or OVUAC convictions within 1 year: Jail time 0-60; Fine $0-500; suspension (Class 4) 1 to 5 years -hard time 60 days. 4 points against driver’s license. Note: A OMVUAC did not used to count as a prior OVI, however the statutes were changed to read that an OVUAC or an earlier OMVUAC is conviction is treated as a “prior” OVI conviction.
Physical Control: Is a 1st degree Misdemeanor. It carries no mandatory jail time or suspension; is not a “prior” OVI for mandatory sentencing and (as non-moving violation) no points should be chargeable against driver’s license. Jail 0 to 180 days; Fine $0 to $1,000; license suspension (Class 7) 0 days to 1 year. A $425.00 reinstate fee will be imposed by the BMV.
Hard Time License Suspensions: Hard time periods imposed for OVI convictions are identical to those imposed “administratively” (see ALS Hard Time below.) If convicted of the OVI credit will be for the time spent under administrative suspensions and for the “hard time” served prior to OVI conviction / sentencing.
Local OVI Laws. Municipalities, villages etc can adopt ordinances with harsher mandatory sentences for OVI. (For example: The Columbus Ohio Municipal Code does not contain the 6 year “look back” so very old priors count.) However, currently most ordinances attempt to be consistent with the Revised Code.
STATUTORY DRINKING-DRIVING PRESUMPTIONS: None exist. In 1983 the Ohio legislature, when drafting the per se laws, eliminated all prior (chemical test) presumptions in OMVI cases. Unfortunately this (omission) left a void in terms of instructions to jurors or judges as to what the “results” of a chemical test mean and the weight the results are to be given. Not surprisingly, after presumption was eliminated courts began treating the “results” as practically infallible. Thus counsel must be prepared and creative in challenging the accuracy and weight of the results.
(ALS) ADMINISTRATIVE IMPLIED CONSENT LAWS & HARD TIME SUSPENSIONS: [ORC §§ 4511.191 et seq.] In Ohio this process is known as the ALS (Administrative License Suspension) law / process.
Your diver’s license will be subject to immediate seizure and immediate suspension of privileges if you are arrested for DUI and asked to submit to a chemical test and refuse or test over one of the per se limits (listed above). A period of “hard time” suspension will be imposed after which you can ask for limited (mostly limited to occupational) driving privileges. The appeal -if you file one- is handled by the same court as the criminal case, although the ALS case is a separate civil case. The appeal can be filed up to 30 days after the initial appearance, but to be safe should be filed at the Initial Appearance, which should be held no more that 5 days after arrest. In accordance with prior practice courts often allow an “oral appeal” of the ALS at the Initial Appearance, but the statutes no longer provide for this and the best practice is to file are written appeal.
(1) Tests permitted: Blood, blood plasma, breath or urine as designated by law enforcement agency. The statute allows officer to request more than one test, however that may conflict with information given to / read to the suspect by the officer.
(2) Type of advisement required: Of the administrative (civil) consequences of both submitting to and refusing chemical testing as setforth on a form (2255 Form) prepared by BMV. Note: the “advisals” are misleading, in part because officers do not advise suspect of the criminal penalties and license sanctions that will accrue with a test above the per se limit or a refusal.
(3) Refusal Sanctions (penalties) & Hard Time Suspensions: License suspension is based on prior refusals within 6 years. 1st Refusal = 1 year (30 days hard time); 2nd Refusal = 2 years (90 days hard time); 3rd Refusal = 3 years (1 year hard time); Fourth Refusal = 5 years (3 years hard time.) See also Criminal Refusal and penalties above.
(4) Admissibility of refusal: If one simply “refuses” a chemical test that refusal is generally admissible in criminal case however that may not be the case if the person’s request for an attorney was immediately “treated as a refusal” by the officer.
(5) Positive Test Administrative Per Se Sanctions and Hard Time Suspensions: For testing .08 (or .096 plasma or .11 urine) or above. If you submit to a test the License Suspension and Hard Time suspension is based on prior OVI convictions with 6 years. O priors = 90 days (15 days hard time); 1 prior = 1 year (30 days hard time); 2 priors = 2 years (180 days hard time); 3 priors = 3 years (3 years hard time.)
(6) Reinstatement Fees: If an ALS suspension is imposed by the officer and not invalidated (via appeal or proper motion) by the court you will be required to pay a reinstatement fee of $425.00. Note if you are convicted of OVI you will also be required to pay a $425.00 reinstatement fee. The BMV will often try to collect both fees, although, generally, only payment of one $425.00 fee should be required.
CHEMICAL TEST LAWS: [ORC § 4511.19(D), § 4511.191 et sec]
(1) General provisions: A chemical test must be performed in accordance with methods approved by the Director of Health and by a person possessing a valid permit to do so issued by the Director of Health. Sample must be taken within 2 hours of driving to be admitted in per se case or admitted without an expert. (Note: New law will change 2 hour limit to 3 hours sometime in 2006.)
(2) Administrative rules & regulations: Issued by Director of Health.
(3) Disclosure of test information: Upon request, the “results” of the test must be made available to person who was tested or attorney immediately upon completion of test.
BLOOD-DRAWING STATUTE: Only a physician, registered nurse, or a qualified technician or chemist may withdraw blood for purposes of police testing.
INDEPENDENT TEST STATUTE: The person tested may have a physician or other qualified person of his or her own choosing administer a chemical test in addition to the police test. But this is a right that (as yet) has not been enforced as the failure or inability to obtain such an additional test does not preclude the admission of the police test and the officer’s failure to advise suspect of right to an independent test does not preclude admission of the police test.
PLEA BARGAINING STATUTE (restricting reduction of charges): None exists.