Fact-Checked: Why Trust Rittgers Rittgers & Nakajima The short and most honest answer is: it depends. Sometimes, people assume if they just call a lawyer, they can automatically avoid an OVI charge by simply having their lawyer plead them out to a reduced offense, as though it is a given. Unfortunately, it is almost never that simple. Good criminal defense and OVI lawyers will try to convince a prosecutor to dismiss or reduce an OVI charge based upon the unique and mitigating circumstances of each individual case. A good lawyer might cite, if applicable, a client’s clean record or lack of OVI history; the implications on their education or their career; the impact a license suspension would have on their livelihood, etc.
In addition to the human element, there are also countless legal arguments based upon specific and unique facts of the case that a lawyer may leverage to try to work out a deal with a prosecutor. Issues a good lawyer might point to (again, if applicable) are: whether the client was actually operating the vehicle as defined in the Ohio Revised Code; whether the client was even impaired based upon their good driving, articulate speech, having fine motor skills in tact, having good coordination, balance, & steadiness on their feet, and based upon either their good performance or refusal of the standardized field sobriety tests (“SFSTs”).
Another legal argument a good lawyer might use is whether the client was over the legal limit at the time of operation. For example, if a person blew at or barely above the .08 limit at the police station an hour or so after having been pulled over, it is likely the alcohol had not metabolized in the person’s system such that they were actually at or above the legal limit at the time they were driving. This concept is known as retrograde extrapolation, which a good lawyer will invoke when applicable, sometimes with the assistance of a toxicologist or expert opinion. Another example is arguing a lack of probable cause to initiate a traffic stop. While this issue does not speak to the issue of impairment itself, a good OVI attorney may use this argument, where applicable, to convince the prosecutor a client’s potential motion to suppress is sufficiently compelling to warrant a reduction of the OVI charge.
While there are countless legal arguments that could be made, these are a few common issues we see in our OVI practice.
If I Get My OVI Charge Reduced, Then What Offense Will Likely Be On My Record?
In Southwest Ohio, most prosecuting attorneys—if they agree to reduce an OVI charge/offer a plea bargain—generally amend the OVI charge to either a reckless operation or a physical control charge.
Sometimes the amended reckless operation is referred to as a “wet reckless.” There is no such thing as a “wet reckless” in the Ohio Revised Code. In other words, a “wet reckless” is not an offense. This term is a legal fiction which in OVI practice, some lawyers use for convenience to describe a first-degree misdemeanor OVI (which punishable by up to 180 days in jail and a $1,000 fine) that was reduced to a fourth-degree misdemeanor reckless operation offense.
Ordinarily, a reckless operation is a minor misdemeanor (punishable by no possible jail time and only a $150 fine)—not a fourth-degree misdemeanor (punishable by a possible/maximum 30 days in jail and a $250 fine). A reckless operation offense, however, is enhanced to a fourth-degree misdemeanor when the charged individual had a reckless operation conviction within the last year.
A “wet reckless” is essentially where the defendant agrees to plead guilty to the fourth-degree misdemeanor variation of the reckless operation offense, even though the individual may have never had a prior reckless operation on his or her record. It’s also important to note an OVI is a six-point violation, whereas the reckless operation is a four-point violation. On paper, a reckless operation has nothing to do with alcohol—the offense is simply one which entails a disregard for public safety on the roadway. For obvious reasons, folks prefer this offense on their record as opposed to an OVI conviction.
Instead of a reckless operation, a prosecutor may offer to amend the OVI offense to a physical control charge. The technical name of the offense is being in physical control of a motor vehicle while impaired—or “physical control” for short. Like an OVI charge, a physical control is a first-degree misdemeanor and an alcohol-related offense; however, unlike an OVI offense, it is a zero-point, non-moving violation. This is because a physical control means an individual was impaired, seated in the driver’s seat, and possessed the key or ignition device. So, unlike a reckless operation (or “wet reckless”), it is not indicative of poor or careless driving—instead, it is indicative of being in a risky position (but not driving) while impaired with alcohol.
In some cases, a prosecutor may agree to reduce the OVI charge to either offense at the option of the defendant. A defendant’s unique circumstances will dictate whether they will choose a reckless operation or a physical control. Usually, insurance or employment considerations impact their decision in this situation.
If I Get My OVI Charge Reduced, What Penalties Do I Face?
Again, this depends. The vast majority of courts in the Greater Cincinnati area will nearly always sentence a first-time OVI offender to mandatory minimum OVI penalties—even in the event they are convicted of a reduced charge, such as a reckless operation or physical control as mentioned above.
Many prosecutors require a defendant to agree to or accept mandatory minimum OVI penalties as a sentence in exchange for a reduction. These agreements are referred to as agreed sentences or stipulations in the legal world. This is seen as a give-and-take for both, the defendant and prosecutor. A stipulation, though perhaps cumbersome, does make the sentence predictable.
Mandatory minimum OVI penalties by statute include: a $375 fine, a three-day driver’s intervention program instead of three days in jail (or three days in jail), and a one-year driver’s license suspension. This, along with probation, is what an individual can expect—even if he or she is convicted of a reduced charge.
Lastly, some courts will permit early termination of the license suspension or probation. However, if the prosecutor requires the defendant to stipulate to a one-year driver’s license suspension, the court will not terminate the suspension or any probation term early. Again, this depends on the court.
It is important to emphasize that every case is different—we can never guarantee a certain outcome. However, we do everything we can for our clients to try to get OVI charges dismissed or reduced, and to try to achieve the best possible outcome for our clients given their goals and unique situation. If a dismissal or a reduction cannot be achieved, we are willing to take cases to trial.
Experience Matters
We criminal defense and OVI lawyers at Rittgers Rittgers & Nakajima have seen it all when it comes to OVI cases and have a strong record of success in defending individuals charged with OVI. Feel free to contact us if you or anyone you know has been charged with OVI.