When a person tests over the legal limit for alcohol or drugs, most police officers charge under both the impairment subsection and the legal limit subsection.
Under Ohio law, there are generally two types of OVI offenses. One is based upon being impaired (subjective belief by the officer based on observations) and the other is based on testing over the legal limit (the result of a chemical test – blood, breath, or urine).
A person can be impaired without being over the legal limit and vice versa. For example, consider someone who has a very low alcohol tolerance. That person may feel drunk and exhibit signs of impairment even with an alcohol blood content under the legal limit. On the other hand, consider a person with a very high alcohol tolerance. That person may be above or well-above the legal limit, but not exhibiting signs of impairment.
OVI Impairment (ORC 4511.19(A)(1)(a)) verses OVI Legal Limit (ORC 4511.19(A)(1)(b)-(e))
Ohio’s OVI impairment statute is found at Ohio Revised Code Section 4511.19(A)(1)(a). That statute reads: “No person shall operate any vehicle, streetcar, or trackless trolley within this state, if, at the time of the operation…[t]he person is under the influence of alcohol, a drug of abuse, or a combination of them.”
But, what does “under the influence” even mean? Impairment is another word for under the influence. And Ohio law has a wordy definition for this concept: Ohio’s standard jury instruction for “under the influence” is found in CR 711.19(A)(2) and derived from State v. Hardy, 28 Ohio St. 2d 89, 57 Ohio Op. 2d 284, 276 N.E.2d 247 (1971) and provides the following:
“Under the influence” means that the defendant consumed some alcohol whether mild or potent, in such a quantity, whether small or great, that it adversely affected and noticeably impaired the defendant’s actions, reactions, or mental processes under the circumstances then existing and deprived him/her of that clearness of intellect and control of himself/herself that he/she would otherwise have possessed. The question is not how much alcohol would affect an ordinary person. The question is what effect did any alcohol consumed by the defendant have on him/her at the time and place involved. If the consumption of alcohol so affected the nervous system, brain, or muscles of the defendant so as to impair, to a noticeable degree, his/her ability to operate the vehicle, then the defendant was under the influence.
The basic idea here is the person’s behaviors, responses, and capacity to think clearly and logically were noticeably compromised because of alcoholic consumption or drug usage.
Police officers and prosecutors try to prove impairment through testimony or video evidence showing poor driving, odor of alcohol, blood shot and/or watery eyes, slurred speech, admission to drinking, loss of fine motor skills, confusion, slow and lethargic response, ability to understand and follow police orders, unsteadiness on feet, and performance on standardized field sobriety tests.
Over the Legal Limit
The “per se” OVI statute is found at ORC 4511.19(A)(1)(b) through 4511.19(A)(1)(e). The four subsections (b)(c)(d) and (e) relate to whole blood, blood serum or plasma, breath, and urine respectively.
The statute and these subsections read: “No person shall operate any vehicle, streetcar, or trackless trolley within this state, if, at the time of the operation…
(b) The person has a concentration of eight-hundredths of one per cent or more but less than seventeen-hundredths of one per cent by weight per unit volume of alcohol in the person’s whole blood.
(c) The person has a concentration of ninety-six-thousandths of one per cent or more but less than two hundred four-thousandths of one per cent by weight per unit volume of alcohol in the person’s blood serum or plasma.
(d) The person has a concentration of eight-hundredths of one gram or more but less than seventeen-hundredths of one gram by weight of alcohol per two hundred ten liters of the person’s breath.
(e) The person has a concentration of eleven-hundredths of one gram or more but less than two hundred thirty-eight-thousandths of one gram by weight of alcohol per one hundred milliliters of the person’s urine.
In most per se OVI cases, a person submits to a breath test. However, urine and blood tests are becoming more frequent due to drug recognition training most police departments receive.
Two Charges for the same OVI traffic stop
If you blow under the legal limit of .08, you may still be charged with the OVI impairment statute if the officer believes you were under the influence / impaired. If you blow over .08, you will be charged under one of the per se OVI subsections and under the impairment code section. Police officers charge under both sections when a person tests above the legal limit because if the breath / chemical test is suppressed in Court, the impairment / under the influence code section will remain. You will not be convicted and sentenced on both charges for the same conduct.
In a previous blog post that can be accessed here, we explain why breath test machines should not be trusted according to a recent New York Times investigation.
It is always safest and best practice not to drink and drive, however it is not against the law to drink and then drive. If stopped after drinking and driving, we generally recommend politely refusing all tests, including the field sobriety tests and the breath / chemical test. Also, make it clear to the police officer – as respectfully as possible – that you are not answering any questions without first speaking to your attorney.
If you or someone you know has been charged with an OVI or multiple OVI offenses, feel free to contact the experienced criminal and traffic defense attorneys at Rittgers Rittgers & Nakajima for a free consultation. Please call 513-496-0134.