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In every state it is illegal for a driver to operate a motor vehicle while under the influence of alcohol and/or drugs. In the State of Kentucky this offense is known as driving under the influence (DUI). In the State of Ohio, this offense is known as operating a motor vehicle impaired (OVI). The DUI and OVI laws make it illegal for a person to operate a car, truck, motorcycle, or commercial vehicle if:
- The driver's ability to safely operate a vehicle is impaired by the effects of alcohol, illegal drugs, prescribed medications such as painkillers, or even over-the-counter medications such as antihistamines; or
- The driver is intoxicated at a level above established DUI and OVI standards, known as blood-alcohol concentration (BAC).
- Both Kentucky and Ohio have set the maximum blood alcohol concentration to be .08 for an adult age 21 or older and .02 for a person below the age of 21. If a person operates a motor vehicle at or above these levels, it is considered to be a "per se" violation. For a per se violation, the State needs only to prove the driver's blood alcohol concentration was at or above .08 for an adult 21 years of age or older and .02 for a person below age 21. However, the absence of this per se evidence does not prevent the police officer from filing a DUI/OVI charge. If there is sufficient evidence to show intoxication, the officer is permitted to charge the person with DUI/OVI, but will be required to prove the intoxication with other evidence. That is one way the field sobriety tests are used, to help establish evidence that the driver is intoxicated.
Field Sobriety and Chemical Tests are these required?
When a police officer makes a vehicle stop for a DUI/OVI, he must have as a suspicion that the person operating the vehicle may be impaired. The officer may conduct field sobriety tests to establish probable cause to arrest. The officer may ask for the driver's consent to perform some of the tests. Field sobriety tests normally involve a police officer requesting that the driver perform a number of the tasks so the officer may assess any impairment of the person's physical or cognitive ability. These tests are commonly referred to as divided attention tests because the officer observes the driver's ability to listen to the instructions on how to perform the test and then properly perform the tests.
Some examples of the field sobriety tests include having the driver recite the alphabet from "D" to "Q"; having the driver walk a straight line, heel to toe; performing a one leg stand, and submitting to a portable breath test (PBT). There is no legal requirement that a driver submit to the field sobriety tests. If the driver refuses the field sobriety test, he or she most likely will be arrested. Only the driver knows exactly how much he or she had to drink or what types of medications or drugs he or she used prior to being stopped.
In Kentucky and Ohio, the PBT is inadmissible to prove intoxication because it is not required to be maintained or calibrated the same way as the mandatory breathalyzer units are required to be calibrated and maintained. However, the PBT can be used by the officers to establish probable cause to make an arrest. This test should always be refused if the driver has had anything to drink.
Once an arrest is made, the driver is required to submit to one of the officer's suggested alcohol concentration tests or risk a mandatory license suspension. Once placed under arrest, the officer can require an alcohol concentration test of the driver's blood, breath or urine or a combination of any three. If the driver refuses to submit to the requested test or tests, the officer will cite the driver with a refusal, which results in a suspension of the driver's operator's license even if you are not found guilty of the DUI/OVI.
Certainly the best way to assure you are not charged with a DUI/OVI is to refrain from drinking and then driving an automobile. The above is offered, however, to assist anyone who finds themselves in a situation where they may face a DUI/OVI charge.
If arrested and charged with a DUI/OVI or any other criminal act, contact the Law Office of Milton S. Goff, III for the legal representation that you will need.
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