The common belief is that if you are operating a vehicle under the “legal limit” that you cannot get charged with an OVI. The fact of the matter is, you can be under the “legal limit” and still be charged with an OVI depending on the circumstances surrounding your arrest.
How Is This Possible?
The Ohio Revised Code section that deals with OVIs has separate subsections. Some of these subsections deal with tests and some of them are completely independent of any test result. A closer evaluation of the ORC’s OVI statute will help clarify this commonly misunderstood fact.
Here is the lengthy text of the OVI statute:
4511.19 Operating vehicle under the influence of alcohol or drugs – OVI.
(1) No person shall operate any vehicle, streetcar, or trackless trolley within this state, if, at the time of the operation, any of the following apply:
(a) The person is under the influence of alcohol, a drug of abuse, or a combination of them.
Notice the A(1)(a) section states: no person shall operate a vehicle, streetcar… if the person is under the influence of alcohol, a drug of abuse, or a combination of them. This is the “catch all” charge for an OVI. When an officer charges under code section 4511.19(A)(1)(A) the “legal limit” of drugs or alcohol is not an element of the offense that the state has to prove.
What does this mean?
This mean that you are charged with being under the influence of alcohol while driving. The State has the burden of proof in all criminal cases. In an A1A case, the state has to prove that you are “appreciably impaired.” In Lehman’s terms, they have to prove that your impairment is noticeable.
How do they do that?
Simple. Many police departments and the State Highway Patrol have video cameras on their uniforms, on their dashboards, or both. These cameras film your driving prior to being pulled over, they film your exit of the vehicle, your performance of the field sobriety tests, and your behavior in the back seat of the cruiser. All of this can be used as evidence that you are impaired. If you fall out of your car, if you are unable to perform the field sobriety tests, or if you are falling asleep in the back of the police cruiser, the prosecutor can use this as evidence of your impairment. All of the above mentioned examples illustrate impairment. All of the above mentioned examples are noticeable to a judge or a jury. And even if you have a reason to explain why you were acting the way you did, the prosecutor can argue that your behavior was due to impairment.
What if you test under the “legal limit?”
If you are arrested for an OVI and taken to the police station and test under the .08 limit, the police can still charge you with the A1A section if they feel that you were impaired by drugs and alcohol.
Why would they do that?
Because the A1A section does not require you to be above any concentration of alcohol, even if you are at a .04 you can be convicted of an OVI. All people are different. And your diet, sleep schedule, medication regimen, size, and gender, all effect your body’s ability to metabolize alcohol. Some people have a higher tolerance for alcohol than others. There are some people who can be at a .08 and show little to no signs of impairment. Then, there are those who are falling over drunk when they are at a .08. It just depends on the individual.
What should you do if you are charged with an OVI?
If you are facing OVI charges, it is important to contact an attorney who is familiar with OVI law and its consequences. The attorneys at Suhre and Associates are familiar with the nuances of the OVI statute and are ready to help you with your case.