As Cleveland DUI lawyers, we at Patituce & Associates often talk to clients who have questions about Ohio DUI laws and how to fight the charges against them. This page answers some of the most frequently asked DUI questions.
To learn more, call our DUI lawyers at 440-471-7784 today!
What Is an OVI?
Here, in Ohio, the law changed a few years back. Instead of calling drunk driving a DUI, we now call them OVI. There are a few major differences between what the law used to be and what it is now.
In fact, one of the biggest changes is the way in which the legal limit has been introduced and treated. For example, in the 1980s, if you blew over the legal limit, you could still attack that as not being impaired. Now, if you are over the legal limit you are presumed to be guilty.
It is important to hire an experienced DUI attorney to defend you from these charges.
Another major change is the creation of an offense called physical control. Physical control is very similar to OVI in many regards, except one: physical control does not involve the operation of a motor vehicle. You can be convicted of physical control for merely sitting in your car while intoxicated.
I Was Arrested for a DUI / OVI, Now What?
You need to call us right now to begin defending yourself from these life-altering charges. We are former prosecutors who have extensive experience handling these types of charges. We always recommend hiring the professional services of an attorney who practices in this area because the stakes are so high.
Even on a first offense, you are facing the possibility of going to jail for a minimum of 3 days up to a maximum of 180 days. On top of this, you could possibly face losing your license between 6 months to 3 years. Just think about how difficult it will be to maintain employment after your conviction, run errands, and other important trips.
It is important to speak to an attorney before your first court date as your defense starts the moment you leave the police station. If you are fortunate enough that your family called a lawyer, it starts before you even leave. Even if we do not agree to take your case, you are making the right choice by seeking legal representation.
Read our blog about this to learn more: What Happens After a DUI Arrest?
What Are the Odds the DUI Charges Will Get Reduced?
This is a fair, and important, question. When going to a doctor, you want to know your odds. When going to buy a car, you want to make sure you are getting the best car at the best price. So it makes perfect sense that with so much on the line, you want to know what the odds are that we can win your DUI case for you.
The short answer is we cannot answer that. There are reasons for this. During our first call, we are gathering information. While working on your case we get more information.
The good news is that when we have gathered all of the evidence, taken into consideration who the judge is, what jurisdiction you are in, who the officer is, who the prosecutor is—we can give you a very accurate opinion on what will happen. In fact, we will give you advice on whether you should take a plea or take the matter to trial.
What Happens During a DUI Case?
This question is a common, and fair, one.
After your arrest, the police officer will give you a date for your first court date. Often, we are able to get our clients out of this first date. If the court requires your presence, we will be there with you, and for you.
Many people make the mistake of entering a plea of guilty or no contest on this first date for two reasons: (1) everyone else is doing it that day, (2) MADD and SADD have put so much propaganda out there that people believe these cases are impossible to win. It is important that you plead not guilty at your arraignment.
These cases need to be handled professionally and in a very specific way. You have too much at risk to do the prosecutor’s job for them. The prosecutor has a huge burden in these cases, as discussed in other pages on this website, the prosecutor has to prove a whole litany of things that are extremely difficult to prove.
So How Do We Beat DUI Charges?
We start at the beginning to determine the right DUI defense strategies.
Why did the police officer pull you over? Did the police officer have a reasonable suspicion you committed a traffic violation? We then move to what happened at the door of the car. What did the officer see, smell, and observe?
Note: Your 2255 form says, without a doubt, that the officer observed “odor of alcohol, bloodshot, glassy eyes, SFTS.” Check it. We’re sure we’re right. Now that you saw that your 2255 says almost exactly what we said, maybe with slurred speech or weaving thrown in, you have to ask how do we know that?
Well, officers always say that in DUI arrests in more than one state!
From the observations, we attack the reasons for getting you out of the car, the field sobriety tests. You would be shocked at how horrible some officers are at performing these tests. If you took a breath/urine/blood test we attack the means, methods, mode, and science.
The bottom line is that a DUI can be beaten, but it takes a trained and experienced attorney who is not just making it up as he goes along. You need a professional.
What Are the Legal Blood Alcohol Limits for DUI?
The majority of OVI arrests involve failed breath tests, but more police departments are using blood draws to try to prove their cases after a Supreme Court ruling. The legal limits are essentially the same as breath volumes but instead of measuring deep lung alcohol levels, the forensic toxicologist is measuring the amount of alcohol in the person’s system.
Just like breath testing, blood testing has two legal limits. If you test over the first legal limit of 0.08 but under 0.17, you face a mandatory minimum of 3 days in jail. If you test over 0.17, you face a mandatory minimum of 6 days in jail. Failing either test involves the loss of your license for up to 3 full years.
I Blew Under 0.08. Why Was I Still Charged with a DUI?
In Ohio, there are different charges related to driving while under the influence. One such charge is for taking a breath test and having a result of 0.08 or over. This is what is referred to as a per se limit. Ohio lawmakers have decided that having a blood alcohol concentration of 0.08 or above should itself be a criminal offense.
Additionally, there is a separate charge for just driving under the influence. So, if you take a breath test and blow under 0.08, a law enforcement officer can still charge you with a DUI if he or she feels that you were under the influence of alcohol at the time you were driving, even if you were not at or over the per se limit.
Should I Plead Guilty or No Contest?
Many people struggle with the overwhelming pressure they face when they have been charged with a DUI or OVI. People typically fall into one of two camps when it comes to hiring an attorney: deciding whether they should fight or just throw themselves on the mercy of the court.
Almost everyone after speaking with one of our experienced attorneys realizes there is only one choice: hire an attorney, even if it is not us, and fight.
On all DUI cases in Ohio, even a first offense in your lifetime, there are certain mandatory penalties for DUI that you cannot escape: jail, driver’s license suspensions, points on your license, registered plates, etc. If you go into your arraignment and enter a plea of guilty, you must be confined for a minimum of 3 or 6 days, up to 180, depending on your type of case.
With an attorney, you can fight and potentially avoid these penalties. We sat in court and watched people enter pleas of no contest and beg for mercy. The judge, who truly is a remarkably kind man, had no choice.
The first man was a physician who had blown over the second legal limit. He was sentenced to 3 days in jail and 3 days in a confined driver education course. The second person was a teacher who had refused the breath test and she was sentenced to 6 straight days in jail.
Can My Charge Be Reduced to a Reckless Operation Charge?
We can tell you that it is incredibly difficult to have a DUI reduced to a reckless operation, but this does not mean it is impossible. Many attorneys make the mistake of simply going into the first hearing and begging for a reduced charge. When this happens, prosecutors will typically dig their feet in and refuse to offer a reduced charge. In fact, many courts will refuse to allow a reduction if the case is not handled properly.
So how does a lawyer get your OVI / DUI charges reduced to a reckless operation? Experience and preparation are two of the main keys involved but it goes beyond that.
In order to obtain a reduction of a DUI to a reckless operation charge, you must demonstrate that not only are you a person that deserves it, but that there is some flaw in your DUI case that warrants the prosecutor a reduction. We’re skilled at finding those flaws.
How Much Does a DUI Cost?
This is a subject that we spend extra attention to because it is one of the top questions our clients ask us when they call-and it is a completely justifiable question to ask. Money is important to everyone.
Throughout this website, we have dedicated a lot of time to answering questions relating to how we can help protect you from all of the horrible consequences associated with a DUI/OVI conviction. As former prosecutors, we have been on both sides of the issue—and both sides of the courtroom. Some other websites call a DUI the “$10,000.00 ride home,” but do not go into much detail.
The costs associated with a DUI include the following.
We know attorneys who practice in this area, and who have done so for decades, that charge upwards of $10,000.00 for their representation. We also know of other attorneys that only charge $750.00 for representation during your case. We are somewhere in the middle. All of our attorneys are former prosecutors, and we bring the best defense we believe you can afford for the price we charge.
As a practical matter, we only charge flat fees in DUI cases because we believe that allows us two things. (1) It allows us the certainty of knowing how much we will receive in a case, and (2) it allows us to properly defend you without worrying about running the clock up at our hourly rate. We make it a point to work with clients to reach payment plans in certain cases.
Court Costs & Fines
This is something that few people think about. In Ohio, the fines for a DUI / OVI conviction are fixed between $375-$1075 for a first offense, and they go up into the tens of thousands from there, depending on your type of offense.
As for court costs, each individual court is different. Some courts charge more for certain aspects of the case than others. It is important to talk to your attorney about what they could be because between court costs and fines you could be looking at thousands of dollars just there. Of course, if you prevail in your court case you do not have to pay fines or court costs.
We make it a priority to obtain driving privileges for our clients. Without the ability to drive to, and possibly, at work, you could lose your job. Alternatively, if you have to pay someone to drive you or take public transportation while your case is pending, you could spend thousands of dollars.
Insurance Costs, Points on Your License
Most people, and even some attorneys, do not know this, but a DUI conviction carries with it a mandatory 6 points on your license. If you are under the age of 21, you will be required to acquire high-risk insurance at an incredibly high cost. Even if you are of age at the time of your arrest, if you pick up 6 points on your license, your insurance is going to go up by a considerable amount.
Can a DUI / OVI Be Expunged?
The answer is no. Under most normal circumstances, a DUI / OVI cannot be expunged in Ohio. Sadly, we find ourselves answering this question far too late in the proceedings where potential clients come to us with this question-never having been advised that their DUI will be on their record forever.
It is important to protect yourself from the penalties associated with a DUI because they can last a lifetime, well after you have finished probation, jail, or any other penalty the court might have imposed in your DUI case.
This is why you should immediately consult with a DUI attorney who spends a significant amount of time and who has a significant amount of experience defending clients from DUI charges in the Cleveland area.
Can an Attorney Make a Difference in My DUI / OVI Case?
One of the most common mistakes people make in their OVI case is going into court alone, without an attorney, and trying to explain their case to the judge. Most people do this because they believe that if they enter a plea of guilty or no contest that the judge can reduce their DUI charges. This is completely false and often leads to an individual going to jail, rather than home, that day.
The second mistake is going with an attorney that does not devote a large portion of their practice to DUI defense. One way to determine if you are dealing with such an attorney is in what they charge. Do they charge incredibly low rates compared to other attorneys ($750)?
The right attorney can make all of the difference in your DUI / OVI case.
If you make the right choice to hire an attorney who devotes a major portion of their practice to DUI defense, your attorney can be all the difference between a positive result and the other alternatives. For instance, many people and attorneys do not know that one of the major breath-testing instruments (the Intox. 8000) is a breath-testing machine that is being defeated all over the state.
We have beaten it in at least six different municipal courts. Most people, and many attorneys, believe that if you failed a breath test that there is no hope for your case. If that were true we would not be in this business and would not have the strong reputation that we have.
What Is “Discovery” During a DUI Court Case?
Often, attorneys can rattle off technical terms that normal people have no idea what they mean. One of the most important terms that you need to know, aside from dismissal, is the term discovery in your DUI case.
Discovery is the process under Criminal Rule 16 where we force the government to give us all of the evidence that hurts your case and helps your case. The prosecution is not allowed to hide material from your attorney.
We obtain the police report, a crash report in accident cases, blood /breath/urine test results. If you performed field sobriety tests we obtain those test results. If there were witnesses or a 911 call, we also obtain that.
Once we obtain all of the evidence that we believe we are entitled to receive, we begin the process of reviewing and analyzing it. Just because a police officer says that you were intoxicated does not mean you were.
We can tell you that you would be shocked at the number of times the facts did not match the police report. If you took a breath, urine, or blood test, we go to the source of that test. If it is a breath testing machine, we analyze it with our experts-same thing for blood and urine testing. We actually go to the lab.
After the discovery process has been completed we file, if appropriate for your case, what is called a motion to suppress evidence. In this motion, we request that the court throw out any evidence that was not properly collected and ultimately your entire case.
What Does Physical Control Mean?
Most of our clients are looking to have their DUI cases dismissed or reduced. One of those reductions is “physical control.” Physical control means that an individual was in control and had the keys to a car while seated in the driver’s seat after consuming alcohol.
Physical control is often seen as a reduction from a DUI charge because it is not a moving violation and has no points. There is also no mandatory jail time requirement. The maximum fine is $1,000 and the maximum license suspension is 1 year versus 3 years on a possible DUI conviction.
Will a Prior Physical Control Conviction Enhance Penalties?
No, it will not. Unlike a prior DUI conviction within the past six years, a prior conviction for physical control will not enhance the penalties on your current DUI.
Penalties for a first DUI include:
- Minimum of 3 days in jail or a driver intervention program
- Possibility of up to 6 months in jail
- A fine of up to $1,075
- A license suspension of 6 months
- Possibility of a suspension of up to 3 years
- The possibility of required assessment and treatment for substance abuse
- The possibility of having restricted plates and/or an interlock device
So, while a prior conviction for physical control will not enhance the penalties on your current DUI, you still face severe penalties that can greatly impact your life. A DUI attorney can help you fight these charges.
Did the Police Read You Your Rights at Your DUI Arrest?
We find it surprising how often a defense based on the police officer’s failure to properly give our client’s their Miranda warnings actually comes up. First, what is a Miranda warning? Most people know that you need to be told you have the right to remain silent and have an attorney represent you.
However, most people do not realize how important it is to have a Cleveland DUI attorney representing them from the very moment they come in contact with the police. Miranda applies to the moment you are in custody.
What is custody? Custody can be when you have handcuffs placed on you, or when you are no longer free to leave. The point at which you are no longer free to leave is very important to your case because if the police question you after custody has happened nothing you say should be used against you unless you are given the proper warnings. Unfortunately, many attorneys overlook this very important aspect of DUI defense.
As an example, we recently, and successfully, defended a young professional who was pulled over for allegedly making a right turn on red. The officer took the woman and placed her in his cruiser. At this point, he began to interrogate her regarding how much alcohol she had consumed. At first, she denied consuming any alcohol, however, after a few moments she relented and admitted to having a drink.
Because she was in custody, and because she was not given the warnings, the judge threw out every piece of evidence that was obtained from that point forward. This means the field sobriety tests, the admission to drinking, and the breath test.
That is why it is so important to know your rights and to invoke them.
What Is a Super-BAC OVI Charge?
In Ohio, there are two legal limits, something that most people and many attorneys do not know. The first legal limit is anything from 0.08 up to 0.169. The second legal limit kicks in at 0.17. A super-BAC OVI charge is technically anything that is over that second legal limit. Some police departments still use old terminology when labeling these cases.
If you are charged with being over the second legal limit, you need to immediately hire an experienced DUI defense attorney. There is mandatory jail, party plates, and interlock on these charges. This means if you go in and plead no contest at your DUI arraignment that you must undergo 6 straight days of confinement, have the party plates and interlock device on your car for up to 3 years. We can help.
Why Am I Charged With Two DUIs on the Same Ticket?
In Ohio, unlike some other states, you can be charged with multiple versions of the same offense. This is often frustrating and frightening, but it is something we can easily handle. In your specific case, you most likely took field sobriety tests and some form of a chemical test such as a breath test, blood test, or urine test.
If you, in the opinion of the officer, were impaired, you were probably charged with that under O.R.C. 4511.19(a)(1)(a). If you blew over the legal limit, you were probably charged with O.R.C. 4511.19(a)(1)(d) or (h) depending on your breath test level.
Some local cities have their own unique code sections but the basic idea is that you were charged for “being drunk” and then for “blowing over” the legal limit. These cases can, and should be, fought.
What Can I Do to Clear Up an Old Warrant & DUI Charges?
There are a few options that you have regarding clearing up your warrant for DUI and handling your case. Hiring a Cleveland DUI / OVI defense attorney will ensure that your matter is handled properly and effectively. Your attorney can file a Motion to Withdraw Capias with the court, asking the court to lift your warrant.
Most courts will schedule a hearing and will not lift the warrant until after the hearing. Your attorney can also file a motion with the court asking the court to allow your attorney to appear at the hearing on your behalf.
If the court grants the Motion to Conduct Hearing in Absentia, your presence will be excused from the hearing. Once your warrant is lifted, your attorney will have the opportunity to speak to the prosecutor regarding your underlying charge.
Your first court hearing for DUI would most likely be scheduled after your warrant has been handled. Depending on the court, if your attorney has worked out your case with the prosecutor, the court may allow your attorney to enter a plea on your behalf, requiring a signed affidavit from the Defendant.
I Want to Plead No Contest. Will I Have to Serve 3 Days in Jail?
You should consult with an attorney prior to entering a no-contest plea to an OVI charge. Hiring an attorney will ensure that your rights are protected and that your case is handled properly.
If you are convicted of a first-offense OVI, you are facing a minimum of three days in jail (up to six months). Your attorney can advocate to the judge for you to complete a three-day driver intervention Program in lieu of serving three days in jail.
If you are charged with OVI and convicted, your driver’s license could be suspended for a minimum of six months, up to a maximum of three years. The court may also order you to pay a fine between $375.00 and $1,075.
How Long Will It Take to Resolve My DUI / OVI Case?
Many of our clients have immediate needs that need to be resolved quickly after a DUI arrest. For some, the most immediate concern is their license. The facts determine when you can receive driving privileges.
For example, if this is your first DUI offense, you may be eligible for driving privileges 15 days after your arrest. If you have one or more prior DUI convictions, you may be looking at a longer wait. An experienced DUI attorney can determine the earliest day you are eligible for driving privileges and help to ensure you receive them.
For other clients, their employer is breathing down their neck, and they want to resolve the case quickly. It is important to remember, however, that moving quickly may not be in your best interests. The best outcome if your case is often reached only through a diligent review of the evidence and a fierce defense of your rights.
Moving your case too quickly through the system may result in key facts being overlooked. Mistakes can adversely affect your defense and leave you with life-long consequences. This is a situation in which you want the best possible representation, not just the fastest possible conclusion. We can help ensure your case is handled in a professional, timely manner while fighting to protect your rights.
Another important issue that may not be on your mind, but should be on the mind of any attorney you hire, is the time limits associated with motions to suppress. A motion to suppress can be filed to challenge the evidence the state intends on using against you. Although it is not appropriate in all cases, it might be in yours.
And if it is appropriate, it must be filed within certain time limits. We can ensure all necessary and appropriate motions are filed in your case on time. No matter how quickly you want your case to be behind you, the first and most important thing you need to do is contact an experienced DUI / OVI attorney in Cleveland.
Further questions on this topic?
How Can You Get Driving Privileges After a DUI / OVI?
To many clients, the most important question they have when first signing up with us is centered around how long it will take for them to get driving privileges after they have been arrested. Ohio DUI law is incredibly tough on even a first-time offender.
On a first offense, you could be without the ability to legally drive for the first 30 days of the offense. Each and every court in the Cleveland, Ohio area is different.
It is important that you select an attorney who has experience with the court you will be appearing in because while the following are the minimums, there are methods for obtaining privileges faster.
- On a first offense failed breath test, you lose your right to drive for a minimum of 15 days.
- On a first offense refused test, you lose your right to drive for a minimum of 30 days.
- On a second offense, you lose your right to drive for 45 days but your car is impounded for 90 days.
It is really important to know that it is probably better for your case, overall, if you refuse all testing-including the field sobriety tests. The police officers will not tell you that if you take the test but are convicted your license will be suspended for 6 months to 3 years on a first offense! But if you do not provide the police with the evidence of your guilt, you might not have any suspension at all.
How Does a DUI Impact My Out-of-State License?
When you were arrested for the DUI or OVI charge, the police officer most likely took your license. In a few rare cases, we have seen police officers confused about what they are supposed to do with an out-of-state license holder.
The police officer probably gave you a carbon copy of a form that he read part of to you and forced you to sign, labeled the 2255 form. He probably then told you that your license was suspended for 90 days or a full year depending on whether or not you refused or failed a test.
What the officer did not tell you is that your license has not been suspended for out-of-state use. Most states do not immediately recognize Ohio’s ability to suspend your license outside of Ohio’s jurisdiction. But a conviction in Ohio may trigger harsh penalties in your home state.
For instance, if you have an Illinois license and are convicted of a DUI here in Ohio, you will most likely be forced to undergo an incredibly long treatment program in your home state, where if you were convicted of the same matter there, you would not.
What Happens at Your First Hearing on a DUI?
The first step in a DUI case is the arraignment. This is a very important step in that you need to have hired and retained an experienced DUI attorney to defend you by this point. There are certain court filings that need to be made as soon as possible filings to get your license back, filings to get your driving privileges established, filings to get your car out of impound, filings to force the police to preserve evidence.
At the first DUI hearing, which is called your arraignment, you are required to enter a plea of either guilty, not guilty, or no contest. It is in your best interest to hire an attorney to advise you what to plea, but in almost all cases, you are going to want to enter a plea of not guilty. But be sure to talk to an attorney about what you should do.
After this, some courts will require you to post a bond, and be fingerprinted. In many cases, we can help you avoid this first hearing without your presence being necessary. This means no missing work and no taking time off.
Why Did the Police Officer Take Your License After Your DUI Arrest?
The police officer was required by Ohio law to take your driver’s license and place you under an administrative license suspension even if this was your first time ever being arrested. It is important to know that there are two types of license suspensions involved in any DUI/OVI case.
The first is administrative (also known as the ALS suspension), the second is a court-imposed suspension. You need to retain an attorney who has significant experience defending DUIs and navigating these types of suspensions.
If you tested over 0.08, your license has been administratively suspended for 90 days on a first offense, if you refused your license has been suspended for 1 full year. Typically, there is a hard cap on when we can obtain privileges for you. On a failed breath test, we can typically not obtain privileges until 15 days after your arrest, on a refusal it is 30 days.
There are important exceptions to this so you need to call a lawyer immediately to find out how you might be able to drive right away. There is a method to obtain privileges faster, and in some of the courts that we practice in we can obtain them at your arraignment-but this is rare, and difficult, to do.
Can I Drive to Work After a DUI?
How do we get you back and forth so that you can take care of your kids, take care of your family, and keep your job? There are two different ways that we go about helping you get yourself back on the road. The first is an appeal of the suspension that if successful immediately restores all driving privileges and your license, the second is a petition for driving privileges that allows you to drive for certain events.
How Can I Get My Car Out of Impound?
There are two ways you can get your vehicle out of impound after an OVI. If your car was towed by police (not seized) and is currently being held at a towing company, you can retrieve it without a court order. You can have your vehicle released to a licensed driver.
If your car was seized and a hold is placed on it, your attorney can file a Motion to Release Vehicle with the court. Once the motion is ruled on, the court will issue an order releasing your vehicle. With that court order, you are able to have your vehicle released to a licensed driver.
Will I Lose My Job After a DUI Arrest or Conviction?
We find that one of the major concerns for our clients is whether or not they will lose their jobs. This is a common sense, realistic worry, especially in an economy where good jobs are scarce. The first simple fact is that most people will not lose their job as a result of an arrest; however, there are complications with a DUI arrest and a failed test or a refusal that require an attorney to perform expert and delicate work.
The immediate loss of your driving privileges will likely cause problems with your job. We can help with that. As for losing your job after a conviction-that is on an employer-by-employer basis. However, there are several types of jobs where having a DUI conviction can cause trouble, such as teachers, doctors, nurses, truck drivers with a CDL, police officers, and those serving in the military.
We work diligently to protect our clients not just from the impact of a DUI arrest, but we also work to protect you from what may happen if you are convicted.
Have more questions about DUI affecting employment?
Will an OVI Affect My Medical License?
We take on many clients who are doctors, dentists, nurses, and other medical professionals. Each of these professional groups have their own licensing boards, but they all have the same general problem when it comes to an OVI arrest and potential conviction. If you are a doctor, dentist, nurse, or other licensed professional, OVI convictions can cost you your medical license.
While it is rare for an OVI conviction to result in a permanent loss of your ability to practice medicine, it can certainly impact you greatly. Because of this it is incredibly important that you retain the services of a skilled OVI defense attorney as soon as possible.
Read more about this on our blog: How Will a DUI Conviction Affect My Nursing License?
What Happens If You Refuse a Breath Test?
Ohio law says that your refusal to submit to a breath, or chemical, test means your license will automatically suspend for one year and that the mandatory minimum jail requirements are doubled-even for a first offense. On top of that, you are going to be required to have the “party” restricted plates and the interlock device. That is the bad news.
The good news is that the refusal to submit to a breathalyzer test makes it exponentially more difficult, in most cases, for the prosecutor to convict you and have you subjected to all of the harsh penalties associated with a DUI. A skilled DUI defense attorney can use your refusal as a great tool in defending you.
Can a Breath Test Be Beaten?
One thing people quickly realize after failing a breath test is they should never have taken it.
Most people end up taking a breath test because:
- They want to comply with the police officer and do not know DUI laws.
- They feel that since police told them they passed the field sobriety tests, they should be able to pass the breath test easily too.
- They are told that if they refuse on a first offense, they lose their right to drive for one year, which scares them into taking the test.
People understand that by failing a breath test they have now made their lives that much harder-but how do you get out it? Is it possible to beat a breath test? In one word: Yes. Ohio has three different types of breath testing devices: the BAC Datamaster, Intoxilyzer 5000, and Intoxilyzer 8000.
The first device is typically seen as the most reliable, with the 8000 being the most unreliable. The more unreliable the machine, the more likely you are to beat the machine. There are several attacks that we make on all of the machines, and several attacks that we make on the specific machine you took your test on.
We also litigate (fight) with the prosecutor over whether or not you should have even had to take the breath test to begin with. From there we attack the method of the test, the procedures used in the test, the application of certain scientific principles, machine calibration, machine error, user error, and certain health issues.
Should You Hire an Attorney After a Refusal or Failed Test?
There are many reasons why you should hire a lawyer-even if you failed a breath test or field sobriety test. Many of our clients fall into one of two categories. The first group feels there is nothing they can do and should just plead no contest. The problem with this is that most people do not know that, on a first offense, the minimum amount of jail time could be as high as six days, and they could be required to use the “party plates.”
The second group feels a bit hopeless but must fight to protect their jobs, their families, and their reputation. Every day, our attorneys sit in court and watch people enter pleas of guilty, or no contest, to charges that they might have been able to beat.
You might think that is bluster, or an attempt to get you to hire us. But consider an example of how hiring an experienced DUI attorney can make all of the difference in the world.
Example 1: Cops claim the client was drunk in a car on the side of the road, high BAC (over 0.20).
This first case is case 2011 TRC 12502 out of Portage County. In September 2011, our client was found by a highway patrol officer with his car pulled over to the side of the road. The trooper approached and decided that she was going to conduct field sobriety tests, and then breath testing, on our client.
As a result of the trooper’s investigation, our client was charged with OVI / DUI. Our client faced a minimum of six days in jail, party plates, interlock device, counseling, and other incredibly harsh penalties. Oh, and if convicted, his employer was going to fire him, but his employer was willing to see how the case played out.
Fast forward to 2012.
He hired us, so he hired attorneys that will fight. We do not take your money just to enter a plea to the charges. We personally conducted what is called a suppression hearing, where we ask the court to throw out certain pieces of evidence. Here we asked the court to throw out the entire case: the arrest, the field sobriety tests, and the breath tests.
The prosecutor objected-called our request “ridiculous” and stated “all deals were off the table.” Like all cases, and as former prosecutors we know this, a case sounds great up until the point where an experienced attorney starts cross-examination of your witness. Here, that is what happened.
In February 2012, the Court issued a ruling agreeing with us. The result was that the entire case was dismissed. Our client walked out of court with no DUI on his record. The prosecutor who claimed it was ridiculous? He did not even ask to appeal the case to the Court of Appeals. This is why it is important to hire a DUI attorney who will not only fight for you, but not sell you out to an aggressive prosecutor.
What Is the Penalty for a First Offense DUI?
A first-offense DUI carries with it mandatory penalties. The penalties for a first-offense DUI are as follows.
- Mandatory minimum jail time
- Mandatory license suspension of 6 months to 3 years
- 6 points on license,
- Party plates
- Interlock devices
- Monetary fines
- Court costs
It is often a surprise to our clients how the penalties for DUI / OVI work. Many people feel as if they can simply go in and plead no contest without worry. This often results in horrible consequences for the person-for instance, a first-offense DUI with a refusal has a mandatory 6 days in jail!
Should You Hire an Attorney to Defend Your OVI Charge?
Some people, rightfully, worry that hiring an attorney might not be a good idea or that hiring a less expensive attorney might be safer. When defending yourself against drunk driving allegations, you get what you pay for.
Let us share with you a lesson that we witnessed a client learn. Recently, we received a call from a young professional who picked up a DUI charge after leaving a company-related function.
He was treating clients to food and drinks while landing a rather large contract. After he left the restaurant, he was stopped and charged with a DUI. He knew his employer wanted him to land the client, but he also knew his employer had a zero-tolerance policy regarding DUI offenses, and he drives a lot for work.
So what happened? The client called several attorneys and went with the low-cost option, someone who had been a police officer but became an attorney later on. He figured the attorney had been an officer and was now an attorney so the low-cost option seemed like a good idea.
Fast forward several months and nothing positive happening in his case, he decided to stop in our office. We met with him, reviewed his case, and we were personally horrified to learn that nothing had happened-nothing-in his case.
There were no motions demanding discovery, no dash cam videos in the file-nothing. There was a note that the prosecutor was offering six days in jail, the minimum for the offense. The client did not need an attorney for that, he could obtain that result himself. Fortunately, we took the case over.
We obtained the discovery, we obtained the videos, and we obtained the video from the breath test room where he supposedly refused to take the test. The video showed us that he did not refuse. So his minimum penalty, in 10 minutes of work, went from 6 days in jail to a 3-day driving class.
We did not stop there, we talked to the prosecutor and judge about what had transpired with the former attorney, and with our review of the evidence the prosecutor agreed to offer a reckless operation charge-a significant reduction.
The lesson is that low-cost defense is not worth it. DUI defense that starts at $750.00 is just a waste of money. Call around and see what people charge; do not be afraid to shop. It’s your life and you pay for what you get.
What Makes the Best DUI Attorney in Cleveland?
This is a completely legitimate question. We suggest that your search should focus on the following areas, all of which you should ask your potential attorney—ourselves included.
How Much of the DUI Attorney’s Practice Is Devoted to DUI Defense?
There are literally hundreds of attorneys in the Cleveland area who advertise, and sometimes practice, DUI defense. The truth is that a much smaller selection of these attorneys actually practice DUI defense as a large portion of their practice. For example, as we said above, we should be required to answer these questions.
We devote over half of our practice to DUI defense. This means that I have spent a considerable amount of time, energy, and resources making sure that everyone from the lawyers through the paralegals understands the concepts of DUI defense that we use in court to defend you.
How Many DUI Cases Has the Attorney Taken to Trial or Successfully Challenged Through Suppression?
Many potential clients believe if they have been charged with a DUI, they are going to get convicted. Essentially, groups like MADD and SADD have the public so convinced that these cases are open and shut they just want to roll over.
However, these cases are so important that we always take the time to explain how we can help defend our clients. For instance, a large portion of our cases, even cases with a BAC over 0.08, are reduced to physical control, reckless operation, or other positive outcomes.
What Is the DUI Attorney’s Background?
We are former prosecutors who’ve been on the other side and know the tricks the police play. For example, the police often tell clients that if they refuse the breath test, they WILL lose their license for a year but if they take the breath test they can get their license back in three months.
This is unfairly deceptive, but legal. Here is why: If you are convicted of a first DUI, you will lose your license for 6 months to 3 years. The police do not tell you this. Almost all of our clients who took the breath test are crushed to find out they might lose their license for three whole years.
What Happens If I Disagree With a Judge’s Decision on a DUI?
Even in the legal system, people can be wrong-including judges. What do you do if you disagree with a judge’s decision? Nothing, unless you choose to appeal your DUI case. In our system, the Court of Appeals is set up to hear cases that center on whether or not the trial judge made the right decision.
In a DUI, almost all of these appeals center on whether or not the judge made the right decision in the suppression hearing. DUI appeals can be successful if it goes through the right way. Then the Court of Appeals orders the trial court, or judge, to make the right decision on your case. Typically, in a DUI case, this means the evidence is thrown out.
More Frequently Asked DUI Questions
Check out the following blog posts for more answers to frequently asked DUI questions.