Defenses to OVI/DUI/DWI


1. No Reasonable Suspicion to Make a Stop

For law enforcement, there must be a valid reason to legally make a traffic stop. The Fourth Amendment requires an officer have a reasonable suspicion that a crime is being committed or about to be committed before making a traffic stop. Reasonable suspicion may consist of any minor traffic offense, such as speeding, weaving, an accident, expired plates, or a failure to activate headlights. An anonymous tip regarding erratic driving may constitute reasonable suspicion, but officer must make independent confirmation of this unsafe driving before making a stop.


2. No Signs of Intoxication

Once a traffic stop is made, the officer will determine whether the driver might be operating the vehicle while under the influence of alcohol or drugs. If the officer possesses a reasonable suspicion that the driver might be impaired, the officer may request a suspected impaired driver perform Standardized Field Sobriety Tests, or submit to a portable breath test machine to confirm his suspicions. Such suspicion is warranted if the driver has an odor of alcohol about his/her person, slurred speech, or bloodshot/glassy eyes. An admission by the driver to the consumption of alcohol or use of drugs might create a reasonable suspicion. If there are no signs of impairment, then there is no reasonable suspicion to justify a field sobriety test.


3. Improper Administration of Field Sobriety Tests

Standardized Field Sobriety Tests (SFST) were developed by the National Highway Traffic Safety Administration (NHTSA) to help determine the level of intoxication of a driver without chemical testing. When an OVI/DUI/DWI suspect refuses a chemical test, the SFST can be substantial evidence of intoxication if not properly performed by the driver. To be admissible evidence, the arresting officer must administer the tests correctly. The NHTSA has guidelines as to how SFST's must be given. If the arresting officer fails to substantially comply with the guidelines established by the NHTSA, then the results of the tests are not admissible as evidence against the defendant.


Many jurisdictions have dashboard cameras in every police cruiser. The recordings from these cameras must be disclosed to the defendant and or defense counsel. The recording can establish the suspect's performance on SFST's, and whether the officer complied with NHTSA guidelines. If an officer makes a mistake, that error can render the results of the test inadmissible. The less evidence the prosecution has of intoxication, the less likely it is a conviction for OVI/DUI/DWI will be obtained.


4. Standard Field Sobriety Tests Improperly Scored

In addition to being properly administered, SFST's must also be correctly scored. The arresting officer must carefully observe an OVI/DUI/DWI suspect's performance on SFST's to determine if there are signs of impairment. Certain mistakes during the SFST weigh in favor of impairment, and the NHTSA has established the types of mistakes that constitute a failure of the test.


Arresting officers often misinterpret mistakes made during the performance of the SFST's, and determine the performance to be a failure. The dashboard video and aggressive cross examination of the arresting officers will determine whether an OVI/DUI/DWI defendant actually failed the SFST's, or if the officer made a mistake. If the defendant did not fail the SFST's, the results will serve as evidence that the defendant was not intoxicated. In fact, if the SFST's were performed adequately, such evidence may invalidate the alleged probable cause for the arrest. If there is no probable cause for the arrest, the court should suppress any and all evidence obtained after the arrest. Again, the less evidence the prosecution has of intoxication, the less likely it is a conviction for OVI/DUI/DWI will be obtained.


5. Unlawful Arrest

An officer may make a traffic stop after observing a minor traffic offense, but an arrest can only be made after probable cause is established. Sometimes an officer intending to determine whether probable cause exists for an OVI/DUI/DWI arrest will make the arrest before this determination is made. When this happens, the officer has made an unlawful arrest, and all evidence obtained after the arrest may be deemed inadmissible in court.


An arrest takes place as soon as a person reasonably believes his freedom is being infringed. The officer must read the Miranda rights to any arrested person before any questioning. Placing a suspect in a patrol car or ordering a suspect to follow directions before determining a suspect's sobriety may constitute an unlawful arrest. If so, any evidence obtained regarding intoxication may be deemed inadmissible in court.


6. Failure to Advise You of Your Right to Refuse a Chemical Test

When a suspect is arrested for OVI/DUI/DWI, they will likely be taken to a police station and asked to submit to a breath test to determine their blood alcohol content (BAC). If the BAC is equal to or greater than .08 percent alcohol by volume, the result may be introduced as conclusive evidence that the driver was driving while intoxicated. If the driver is under twenty-one (21) years of age, the BAC limit is .02 percent alcohol by volume. If the driver's BAC above .17 percent blood alcohol by volume he may be charged with a "High Test-OVI" and be subject to enhanced penalties.


Prior to requesting a suspect to submit to a test, the arresting officer is required inform the driver of the consequences of submitting to the test, the driver's right to refuse to submit to the test and the consequences for so refusing. If the driver submits to the test, he may be providing the State with evidence of intoxication. If the test results are over the legal limit, the Ohio Bureau of Motor Vehicles will suspend the driver's license for ninety (90) days. Fifteen (15) of those days are a hard suspension, meaning a judge cannot grant driving privileges of any kind. If the driver refuses the test, his license will be suspended for a year; thirty (30) of those days are a hard suspension.


Any failure of the arresting officer to advise the suspect of the above may render the results of the test, or the refusal inadmissible, and may fail to justify a license suspension. Defense counsel must review the surveillance cameras that exist at many police stations, as the videos may have recorded whether the arresting officer properly informed an OVI/DUI/DWI suspect of his rights.


7. Breath Test Inadmissible

The purpose for the breath test is to obtain evidence that a driver is intoxicated. The Ohio Administrative Code (OAC) requires that a breath test be performed under specific criteria in order to be admissible. For example, the OAC requires that the breath testing machine be properly calibrated, that operating officer be certified to operate the machine. The request for the test must be made within 2 hours of the alleged offense, and the test must take place within a three hours of the alleged offense.


8. Practical and Basic Defense Counsel Activities

After a driver is charged with OVI/DUI/DWI, defense counsel will conduct negotiations and discovery (i.e. information collection) on behalf of the client. Under certain circumstances, a prosecutor may agree to reduce an OVI/DUI/DWI charge to a less serious charge, such as reckless operation, or physical control of a vehicle while impaired. Reduced charges often carry less severe penalties than OVI/DUI/DWI, and may be expugnable, whereas an OVI/DUI/DWI cannot be expunged.


A defense attorney will conduct discovery by way of motions and formal requests in order to gather any and all available evidence regarding a case. A defense attorney will review documentation relevant to the case, all records regarding the arrest, and any video or audiotapes. Before a case goes tor trial, a defense attorney will know all the strengths and weaknesses of a case. A client can then make an informed decision as to how to proceed, which is often more advantageous than simply pleading guilty.


9. Destruction of Evidence

Evidence of an OVI/DUI/DWI offense must be preserved and made available to the defendant through discovery. Law enforcement must indefinitely preserve the evidence once placed on notice. In every OVI/DUI/DWI case, I submit a comprehensive discovery request for every type of evidence possible, and I contact the relevant law enforcement agency directly to place it on notice to preserve evidence, such as dashboard videos and booking videos. These videos must be requested before they are destroyed. These videos can be indispensable in establishing exactly how a STFT was administered, how a driver performed, and can also establish whether a driver's speech was slurred. These videos may contradict an officer's allegations and may exonerate the driver.


If you have been charged with an OVI/DUI/DWI, it is imperative that you contact an attorney, so that any of the above defenses that apply to your case can be agressively pursued on your behalf. Please call 216.225.9181, Email, or use the contact form to schedule an initial consultation.