This is perhaps the most common question that DUI lawyers get from clients. Here’s what you ought to know. There are two ways Police can charge a DUI/OVI (they’re the same thing) in Ohio.

First, if a suspect refuses a breath test (or any test) then the police will fall back on what is referred to as an “(A)(1)(a) OVI (or circumstantial OVI)”[1], which simply means that Police intend to show your impairment through circumstantial evidence; i.e. your driving, your balance, how badly you smelled of alcohol, etc. This is generally not an easy charge to get a conviction on because different juries can have major differences of opinion as to when an OVI suspect is actually “impaired” by alcohol.

Second, a “per se” DUI/OVI charge, on the other hand, goes to the prosecutor when a subject agrees to take a chemical test of some kind upon arrest. Police can take from suspects either a breath, blood, or urine sample. If you offer a breath (or other) sample, that test sample will become conclusive proof of your blood alcohol content (or BAC).[2] The most common testing device that police have available to them in Ohio is the breath machine, and thus whether to “blow” or not becomes the universal question.[3]

So is it a good idea to blow?

Consider the following. The government entity that sanctions these breath machines is the Ohio Department of Health, and it has sanctioned many. The devices range from the BAC Datamaster, which is usually reliable if calibrated correctly, to the dubious Intoxilyzer 8000, which has been scientifically shown to be subject to enough problems that nowadays its admissibility in court is usually a toss up. Different Police Departments have different machines, so you never know which one you will get.

2015-11-06 10.42.36

A new wave of billboard signs have gone up all over Ohio that say, “Buzzed driving is drunk driving.” Seeing as to how most people consider being “buzzed” and “drunk” two very different things, this sign makes most people scratch their heads. Turns out that because of what Ohio law says on the subject of OVI, the sign is actually correct.

Ohio Law doesn’t account for different peoples’ varying alcohol tolerances. And at a level of intoxication where you might say you were just “buzzed”, Ohio law will likely dictate instead that you are “drunk.” Here’s what I mean. Consider the following chart compiled by the National Highway Traffic Safety Administration. Most state health departments have compiled a nearly identical chart. For example, your average 180-pound American man would only have to consume roughly 4 beers to reach .08 – the statutorily illegal BAC for adults. Most 180-pound men in America would respond to this fact, “What the hell? I’m not drunk after 4 beers. I’m just buzzed at worst.” And most people probably wouldn’t disagree. Doesn’t matter. That’s what the illegal BAC is in Ohio. And so the billboard is correct – “buzzed driving is drunk driving” in terms of when you will be charged with OVI in Ohio.

screen shot 2013-05-14 at 6.02.09 pm.png

screen shot 2013-05-14 at 6.01.42 pm.png

After the police stop you and conduct their roadside investigation, if they decide that they have enough evidence to charge you with the “(A)(1)(a) OVI” (again, simply by how you look, smell, and act, etc.) you will be placed under arrest for that particular OVI charge. After you have been arrested the Police will then read you a form that informs you that you are already “under arrest for OVI” and Police will then ask you to submit to a breath test (or other chemical test). Your reaction should be, “Wait a minute? I’m already under arrest for an OVI, and you want me to give you more evidence of my BAC even though I’m already under arrest for OVI?” That would be the correct reaction, because even if you blow under .08, that won’t save you, because you are still already under arrest for the ‘circumstantial OVI’ because police believe that you “look” too impaired to drive.

So if blowing can usually only make the situation worse, and can’t make it better, what’s the use in blowing then? Good question.[4] Choose wisely.

But won’t my license get suspended if i refuse to blow?

Yes. But, to keep a long story short, if you are convicted of an OVI, your license will get suspended anyway. For example, if you are arrested for your first OVI and you refuse to blow, your license will be administratively suspended for one year. But your Dayton OVI attorney will be able to secure driving privileges for you, for work and school, after the first 30 days of that suspension have expired. And the minimum license suspension, if you ultimately are convicted of the OVI charge, is 6 months.

Can’t the police get my blood another way?

Yes. Police can always apply for a warrant to get your blood if they contact a judge who agrees with them that there is probable cause to believe that your BAC is over .08. However, in practice, I see Police attempting this very very rarely.

Also, if you’ve been convicted of two or more OVI’s within 6 years, or 5 or more OVI’s within 20 years, or you’ve been convicted of a felony OVI, then police are authorized to get you to submit to a chemical sample by whatever reasonable means necessary. But most people aren’t in that boat, and again, in practice I rarely see Police acting on their rights in this manner. Most times those OVI suspects, who have this kind of extended list of priors, go untested, even though Police are authorized to take their blood.



NOTE: This blog is not to be construed as legal advice. Please see the disclaimer on this website. You must contact your DUI/OVI attorney so that you can receive a professional assessment that is tailored to fit you particular situation.

[1] Which is a reference to the particular section of the Ohio OVI statute that allows Police to charge the OVI in this manner. R.C. 4511.19(A)(1)(a).

[2] Unless the sample was tainted by incorrect use of the testing device or if the sample itself was taken from you illegally.

[3] NOTE: The portable breath test, on the other hand, that Police may ask you to blow into on the side of the road, is not accurate enough to be admissible against you in trial, and can only be used to accrue probable cause to arrest you in some areas in Ohio.

[4] NOTE: If your current OVI is a felony, your refusal will also be charged as a felony, but most people aren’t in that boat because they don’t have three or more prior OVI convictions.

Brock Schoenlein

Brock A. Schoenlein is a renowned trial attorney in Dayton, Ohio focusing in the areas of DUI/OVI and Felony Criminal Defense. He is licensed to practice law in the State of Ohio, in the Federal District Court for the Southern District of Ohio, and also in the Supreme Court of Ohio.