In this white paper, Attorney Daniel Gigiano reviews Ohio OVI/DUI laws and Ohio Supreme Court OVI cases. DUI cases are some of the most common cases in Ohio Municipal Courts and are also quite prevalent in Ohio Courts of Common Pleas. Attorney Daniel Gigiano has practiced DUI law since 1993 and shares his legal knowledge of the offense that has touched so many lives in Ohio.
What is OVI in Ohio? The term DUI is used in this white paper because it is what most people commonly call the offense of driving under the influence of alcohol. Even Ohio lawyers loosely use the term DUI, rather than the official term of OVI. DWI is typically recognized as an outdated term by both laypeople and professionals. What are DUI, OVI, DWI, and BAC in Ohio? DUI is driving under the influence. DWI is driving while impaired. DUI and DWI are acronyms that are no longer used in Ohio since Ohio passed a law in 1982 that refers to driving under the influence of alcohol or drugs as OMVI or “operating a motor vehicle impaired.”
With OMVI being the official term at one point, that leaves us with the question of what is OVI in Ohio?
When Ohio removed the requirement that the vehicle be motorized, the offense was shortened to OVI, or “operating a vehicle impaired.”
Our next term, BAC, is still alive and well today in the law. BAC refers to blood alcohol content. Under Ohio OVI law, it is illegal to operate a vehicle with a BAC of .08 breath alcohol content or greater. If the driver is under 21 years of age, the legal limit is as low as .02 breath alcohol content. For many people, that can be reached with as little as one drink within the hour before testing.
Ohio OVI laws (more commonly known as DUI or DWI) have changed over the last several years. First, a test result of .17 or greater doubles the minimum incarceration period. For example, a first time OVI conviction normally carries a minimum sentence of three days in a driver intervention program or jail. A high test result doubles that minimum sentence to six days in jail or to both three days in jail and three days in the driver intervention program.
Before this Ohio OVI law was passed, a high test result could be considered in sentencing, but did not require mandatory minimum jail time.
Ohio OVI law also now includes a new criminal offense for refusing to take the Breathalyzer test. If a person arrested for OVI in Ohio has been previously convicted of an OVI within twenty years and refuses to take the Breathalyzer test, that person can be charged with a separate offense of refusal. The minimum incarceration period for a refusal is twice as much as those for the conviction under Ohio OVI laws.
Prior to the Ohio breathalyzer refusal law being passed, refusing to take a breathalyzer was not a crime, but simply resulted in a longer administrative license suspension (ALS).
On February 10, 2016, the Ohio Supreme Court issued a decision on Ohio DUI blood testing requirements, deciding whether the police substantially complied with the Department of Health regulations.
The substantial compliance standard was created by the Ohio Supreme Court years ago. Some argue that the substantial compliance standard provides rational flexibility while others argue that it allows court to ignore serious forensic errors by the police.
This case involved a fatal vehicle accident in which alcohol was suspected as the cause. A blood sample was taken at 1:50 a.m. Even though the officer went back to the police station to complete paperwork, he kept the sample in his cruiser until his shift ended at 6 a.m. when he mailed it to the crime lab. The lab test revealed Baker’s blood alcohol level to be .095, slightly over the legal limit of .08. Ohio OVI law stated “while not in transit or under examination, all blood and urine samples shall be refrigerated.” Despite the fact that the sample was not in transit or under examination, the Ohio Supreme Court held that failure to refrigerate the sample for 4 hours and 10 minutes still substantially complied with Ohio DUI blood testing requirements. Therefore, the evidence was not automatically suppressed for failure to follow the rule.
Ohio Supreme Court Justice O’Neill, in his dissenting opinion, criticized the opinion of the court when he stated it was “outrageous that the General Assembly assigned to experts the task of setting rules to ensure that accurate test results are admitted in drunk-driving cases only to have the rules ignored.” He further exclaimed, “One man lies dead and another man faces a lengthy prison term if convicted of drunk driving. This is no time to be treating the rules regarding admissibility of evidence lightly.”
As a practicing attorney at Daniel F. Gigiano Co., L.P.A. and having practiced DUI law since 1993, I agree with Justice O’Neill. The rules are there for a reason. Essentially, somebody determines the procedures necessary to properly preserve evidence. Having such rules in place avoids having an expert testify in every case to explain how to preserve evidence. I have to wonder if the blood sample in this serious fatal DUI case was truly reliable.
However, the Ohio Supreme Court did not see it that way and that high court is the last word on legal issues unique to Ohio.
Of course, the United States Supreme Court may occasionally touch on federal limitations to Ohio issues.
In 2016, the Ohio Supreme Court found the Ohio OVI law repeat offender specifications constitutional. The accused challenged the Ohio DUI sentencing laws as unconstitutional alleging that such laws violated his right to equal protection of the law. The Ohio Supreme Court disagreed. Ohio DUI law sets up a system of increased penalties for repeat DUI offenders. First and second OVI offenses within six years is a first degree misdemeanor. A third OVI offense within six years is still a first degree misdemeanor, but the accused can be sentenced to one year in jail, rather than just six months. If one has three or four prior misdemeanor OVI convictions in the past six years, the OVI is a fourth-degree felony. If one has five or more OVI convictions in the past 20 years, the OVI is a fourth degree felony.
One with zero to one prior convictions faces a maximum of six months in jail. One with two prior OVI convictions faces a year in jail. Fourth degree OVI convictions have a base term of 30 months plus 60 or 120 days. Third degree OVI convictions have a maximum term of 5 years plus 60 or 120 days. The repeat-OVI specification applies to third degree or fourth degree offenders with five or more convictions in 20 years. This specification adds a mandatory prison term of one, two, three, four or five years in addition to the base term of imprisonment for the underlying offense/
| Offenses | MisDemeanor/Felony | Max Jail/Prison Term |
| 1st in 6 years | 1st degree misdemeanor | 6 months |
| 2nd in 6 years | 1st degree misdemeanor | 6 months |
| 3rd in 6 years | 1st degree misdemeanor | 12 months |
| 4th in 6 years or 6th in 20 years | 4th degree felony | 34 months |
| 2nd Felony Lifetime | 3rd degree felony | 5 years |
Are sobriety checkpoints legal under Ohio OVI law? Here, we examine whether police can use sobriety checkpoints to stop drivers to see if they may be driving while impaired. The United States Supreme Court held that sobriety checkpoints are valid. In their decision, the Court found that the intrusion and inconvenience to individuals who are stopped is outweighed by the government’s interest in restricting drunk driving. Ohio courts determined that there are four factors to determining the legality of a sobriety checkpoint:
Once a driver is stopped at a sobriety checkpoint, the officer determines if the driver is suspected of operating a motor vehicle under the influence of alcohol or drugs. If there is no suspicion of OVI or other legal wrongdoing, the driver is permitted to leave. If there is suspicion of DUI, the officer detains the driver and administers field sobriety tests and a breath test. If the testing establishes probable cause to believe the driver is impaired, the driver may be arrested.
Contact Daniel Gigiano at 330-336-3330 if you need additional information about Ohio OVI law or have been accused of OVI. The initial 30 minute consultation is always free.
