- What do I do if I am stopped by a law enforcement officer?
- What do I do if the officer signals me to stop by turning on his emergency lights?
- After being stopped, should I get out of the car?
- Is there anything I should do before getting out of my vehicle?
- If asked, should I admit to drinking an alcoholic beverage?
- Do I admit to how many, where and when?
- If I'm not going to answer, what do I do?
- Do I submit to the field sobriety tests?
- Do I submit to the breathalyzer test or submit a blood or urine sample?
- What do I do after being released?
- What do I do if I have not retained an attorney by the arraignment?
- What can I expect from my attorney?
- What will this process cost?
- What are the mandatory minimum penalties allowed by law?
1. What do I do if I am stopped by a law enforcement officer?
First, don't drink alcohol or use drugs and then drive! No one likes drunk or impaired drivers as they are clearly a danger to themselves and others. No sane person wants to be on the receiving end of a 3,500 pound projectile being piloted by an intoxicated person.
Second, recognize that law enforcement officers perform a very difficult and dangerous job, and that we all owe the good officers an extreme debt of gratitude for their efforts. However, it should be remembered that law enforcement officers have a great deal of discretion in deciding whether or not to arrest a person. Experience has proven time and time again, that a person's lack of manners and overt rudeness is the quickest way to being handcuffed and placed in the back seat of a patrol car. In reality, for an officer making an arrest for an OMVI/OVI/DUI, it is strictly his/her opinion that the crime has been committed. Like all jobs that human beings perform, there will be some officers that are better at it than others. Law enforcement officers are not only subject to making human mistakes, but to unconscious psychological influences which almost always gravitate toward guilt.
In addition, law enforcement work is very competitive and obviously officers like to win their cases. Experience has shown that more than a few officers have misrepresented facts and told falsehoods to win their case. In determining the reason for a OVI/OMVI/DUI arrest, one should keep an open mind to the possibility of other motivations of the officer than simply that the driver was intoxicated. For example, recent evidence has demonstrated that most officers who make numerous traffic and OVI/OMVI/DUI arrests actually receive increased pay as a result of their subsequent court appearances for those arrests. In some cases, in addition to receiving benefits of a private patrol car for his sole use, and having his days off and work hours fixed, some officers receive an amount of extra money equal to his regular pay for court appearances, i.e., his salary increases.
2. What do I do if the officer signals me to stop by turning on his emergency lights?
Drive to the right lane as cautiously and quickly as possible, and continue there until you can either safely park on the shoulder of the road or in a parking lot. If you drive too long with out indicating your awareness of the officer's overhead lights he will note that you could not pay attention to all aspects of your driving. Also, if you jerk the steering wheel and slam on the brakes, the officer will note that you could not smoothly and safely operate the vehicle. Next, put your vehicle in park, shut off the engine and radio, turn on your emergency flashers and roll down your window. Such quick and cautious actions on your part will indicate that your normal mental faculties are not impaired.
3. After being stopped, should I get out of the car?
No. Not unless asked to do so. Have your license, registration and proof of insurance ready to hand to the officer.
4. Is there anything I should do before getting out of my vehicle?
Take a deep breath, compose your thoughts and treat the officer with the respect that you would a clergy person, judge or other well-respected person.
5. If asked, should I admit to drinking an alcoholic beverage?
This is a tough question, but the answer is generally “yes” if you have consumed an alcoholic beverage. You will likely have an odor of an alcoholic beverage on your breath so it makes no sense to deny that you have had a drink. In fact, if you make a denial with the odor of an alcoholic beverage present, it is only human nature for the officer to find that you are less than credible. The officer would then likely be suspicious that you are trying to hide how many drinks were consumed.
6. Do I admit to how many, where and when?
It depends. Any admission more than “two” will likely result in your arrest. This is especially true where the officer fails to ask “when?”. As an example, four beers can be interpreted much different than four beers over eight hours. In this regard, the truth has resulted in many non-intoxicated drivers being arrested, and has subsequently cost them a small fortune for bond, automobile towing, time off from work and an attorney to prove their innocence.
7. If I'm not going to answer, what do I do?
Keep in mind that both our Federal and State Constitutions guarantee that you have the right to remain silent and for most people who find themselves cited with a traffic or criminal violation wish they had used it! Politely ask the officer why he stopped you and if you are presently under arrest. A person can be under arrest and yet not be told so.
Where the officer indicates that you are under arrest then you should immediately inform him of your desire to have an attorney present for any further questions. Do not refuse or agree to perform police field sobriety exercises. Rather, tell the officer you want advice from a lawyer to help you decide if you will refuse or agree to perform them.
On the other hand, should the officer say you are not under arrest, then a different approach is in order. Politely ask: “Am I going to be written a traffic ticket?” And if so, “Will I be free to leave upon your completion of it?” Where the officer says: “Yes” to both questions, count your blessings, remain still and non-threatening. Be courteous and only speak when spoken to. Never volunteer information as that will only serve to prolong your roadside stay. Should he again ask about alcohol consumption, inform him of your choice not to answer any questions but those related to the specific traffic offense and, stick to your right not to incriminate yourself.
If the officer says “You're not under arrest, but you cannot leave”, this is close to the typical OMVI/OVI/DUI scenario. Here, the safe thing to do is to inform the officer that you would prefer not to answer any more questions and would like to have a lawyer present. Be polite and not talkative! By doing this, you have in effect “punted the ball” to the officer. He must now choose to let you go or to prolong his investigation. Again, if he lets you go count your blessings and drive safely. Where he prolongs your roadside stay, he must be careful not to violate your federal and state constitutional rights to not be unreasonably seized. The invocation of your rights to remain silent and to an attorney's presence will make it more difficult for the officer to avoid violating your constitutional right to not be unreasonably seized.
To further explain, a law enforcement officer, absent any belief that criminal activity is afoot, has a right to walk up to any person in a public place and talk to them. However, the person may simply walk away. Our law is clear that the person's action in walking away cannot be used as evidence that he is guilty of something, i.e., that exercising your constitutional right cannot be equated to guilt. In cases where the officer, through use of his law enforcement status whether implied or directly expressed, detains the person, he violates the individual's right not to be unreasonably seized.
To lawfully justify a brief detention of a person, the officer must have a specific and articulate reasonable suspicion that the person is presently involved in criminal activity. This justification cannot be legally made on the basis of a simple hunch or a gut feeling. The detention must be narrowly limited in both its duration and scope so as to allow the officer to maintain the status quo so that he may dispel or affirm his reasonable suspicions. If the officer waits too long or unreasonably proceeds beyond the purpose for his initial detention, then he again violates the person's constitutional right not to be unreasonably seized.
Finally, where the officer actually arrests the person he must have a greater quantum of evidence than merely a reasonable and articulate suspicion, but probable cause to believe a crime has occurred. “Probable cause” has been defined by our courts as a measure of evidence that would lead a reasonable person, based on that person's experience and training, to believe that a crime has occurred. This probable cause standard can also be defined as that there is some evidence as opposed to proof beyond a reasonable doubt that is required to convict a person of a crime, or the preponderance of the evidence standard (i.e., 51%) to win a civil lawsuit.
In any situation where an officer detains a person on less evidence than a reasonable and articulate suspicion or arrests a person on less evidence than probable cause, he violates that person's constitutional rights not to be unreasonably seized. The remedy for this violation is to exclude from the prosecution's case any and all evidence that was derived from the violation.
When you find yourself in the typical OMVI/OVI/DUI scenario (i.e., where you're being detained for a OMVI/OVI/DUI investigation but you're not yet arrested) it is best to be polite, to invoke your rights to remain silent, and to have an attorney present, to not accidentally incriminate or convict yourself, and to let the officer do the best he can with the evidence he can legally develop.
8. Do I submit to the field sobriety tests?
First, immediately inform the officer and all officers thereafter, that you want to remain silent until such time as you can contact an attorney and have a private consultation with him as to everything the officer will ask you, except for bail. Make sure to tell the officer(s) that you are neither refusing nor agreeing to cooperate with them. Rather, tell them that your decision to refuse or agree will be based upon the advice you receive from your lawyer.
Sometimes officers will say “you can't have a lawyer yet”. The “you can't have a lawyer” statement may or may not be true depending on the circumstances of your case. But, you will have no way of verifying its truth until you speak to your lawyer. Thus, the best thing to do is to remain polite but firm in your requests to speak to an attorney. Simply put, do not take “no” for an answer.
Second, you must understand the field sobriety tests and how the officer will use them. The Standard Field Sobriety Tests (SFST) that are approved by the National Highway Safety Administration (NHTSA) are composed of three main tests: (1) the Horizontal Gaze Nystagmus Test (HGN), (2) the Walk and Turn Test (WAT), and (3) the One Leg Stand (OLS). According to the research behind these tests, when the tests are administered correctly, the HGN only has a 77% likelihood of determining if a person's alcohol content is greater than the legal limit, the WAT only has a 68% likelihood of determining if a person's alcohol content is greater than the legal limit, and the OLS only has a 65% likelihood of determining if a person's alcohol content is greater than the legal limit. There are no other tests recognized by NHTSA, the courts or the legislature for determining a person's blood alcohol content.
The officer may attempt to have you perform other tests such as the alphabet and finger-to-nose tests, but depending on the court and facts of your case, these may be admissible in a trial to describe speech, balance and other symptoms of intoxication that a normal lay person would associate with impairment. However, some judges will allow officers to testify that a person's performance on the SFSTs correlate to a specific alcohol content. Therefore, by performing the SFSTs you may giving the officer more evidence to find probable cause to arrest you. You must know that it is almost a sure thing that if you refuse to perform the SFSTs the officer will arrest you. If your refuse to submit to the SFSTs you will likely be required to fight your arrest and OVI/OMVI/DUI charge in court. The decision to participate in the tests are a decision you must make on the spot under the circumstances in which you find yourself. Make certain to follow the advice above regarding the inquiry as to whether or not you are under arrest or are free to leave.
Finally, if you decide to submit to the SFSTs they are required to be administered in a specific manner and may be affected by a person's health or the environment. The officer is required to ask about certain medical or physiological impairments a person may have prior to each test. It is important to bring up your health conditions when asked by a law enforcement officer at this time. This goes to your credibility. If you bring up a health related problem in court for the first time, especially after the officer asked you on the roadside, your testimony may be somewhat suspect if the two statements are not consistent. If you advise the officer of various ailments, he may still ask you to perform the test. If you submit to the test it is important to listen to the officer's directions carefully and do not begin the tests until they tell you to. Do not think that you can perform the test because you saw someone perform the test on television. The correct way to perform the tests is not advertised and the tests are actually portrayed incorrectly in every pro law enforcement advertisement that this author has viewed.
9. Do I submit to the breathalyzer test or submit a blood or urine sample?
Again, immediately inform the officer, and all officers thereafter, that you want to remain silent until such time as you can contact an attorney and have a private consultation with him as to everything the officer will ask you, except for bail. Be aware that many law enforcement offices record the telephone conversations. Be careful to tell the officers that you are neither refusing nor agreeing to cooperate with them. Rather, tell them that your decision to refuse or agree will be based on the advice you receive from your lawyer.
Again, officers may say “you can't have a lawyer yet”. However, remain firm because you may not understand the severity of your position until after consulting with an attorney. Thus, the best thing to do is to remain polite but firm in your requests to speak to an attorney. Simply put, do not take “no” for an answer.
When the officer allows you the opportunity to use the telephone use it immediately. Make a call to any attorney you know. If you don't know an attorney, ask to use the yellow or business pages to find one or ask to call the telephone company's directory assistance number. A good place to start in the phone book might be under the listing for your local criminal law bar association. Make the call even if you don't know or have a lawyer, if your lawyer is beyond local distance dialing, or your arrest time is not during regular business hours of most law offices.
Here, you should know that most law offices answer their phone even after closing through use of an answering service. Many of these services can actually connect you directly to an attorney at his home.
Upon reaching an attorney on the telephone be sure to ask the officer for a chance to speak with the lawyer in private. If law enforcement officers refuse to allow you privacy, they violate your right to an attorney. Absent giving you privacy, the police have only provided you with only a warm body to talk to on the telephone. This is because the lawyer, in order to maintain the attorney-client privilege and to protect your right to remain silent, must tell you not to say anything. Here, it is obvious that a lawyer can only give you proper advice where you can first tell him what has happened (i.e., he applies the law to the facts and he accordingly advises you what to do).
In regard to submitting to a breathalyzer test or giving a urine or blood sample, Ohio's OVI law imposes a stricter penalty for refusing to give a sample after being requested to do so, if you have a prior OVI within the past 20 years. At least in the authors' opinion, it is wrong to advise a person to take a test on a machine which is incapable of being independently verified as accurate and reliable. It is equally wrong to advise a person to submit to such a test where law enforcement fail to preserve, and in effect, destroy the breath specimen they will ostensibly use to prove you guilty. Personally, we're not going to take a test that can't be rechecked to determine its validity.
Arguably, the best indicator of a person who has not lost the normal use of his mental faculties is the fact that he simply won't take the breath test. Here, we believe a person would have to be drunk to agree to take a police test that is so enmeshed in debate about its non-reliability and inaccuracies and where the police machine's own manufacturer doesn't warrant it fit for any particular purpose including breath testing.
Under such circumstances, only a drunk, insane, uneducated, or coerced person would submit to a breath test where the penalty for failure might result in 180 days confinement, a $2,000.00 fine and a year's driver's license suspension, not to mention other social and automobile insurance consequences, as opposed to a possible ninety day suspension for test refusal. In other words, we would argue that, knowing the above, a person demonstrates no loss of his normal mental faculties by refusing the test, but does so by agreeing to take it. Clearly, considering all the consequences and facts noted, it cannot be reasonable and prudent judgment to take such a non-preserved test.
Let us add one other “believe it or not” fact here just for emphasis. Most law enforcement officers join in our opinion and would not take the breath test either! However, this decision should be made only after speaking with an attorney with specific knowledge of the local customs of the court in the county in which you are in and the facts of your case.
10. What do I do after being released?
Immediately go to a hospital or laboratory and have your blood drawn and tested for your alcohol level. Make certain that the person drawing the blood sample uses a non-alcoholic sterilization technique and that you record the name of the person who draws the blood and who tests the blood.
This independent analysis of your blood alcohol content can be used to determine your blood alcohol content at the time you were stopped and the results should be provided to your attorney immediately.
11. What do I do if I have not retained an attorney by the arraignment?
In most courts, the judge will grant you a reasonable continuance if you ask for time to consult with an attorney, if you have not already done so. If you do not have an attorney after this arraignment hearing, begin your search for an attorney familiar with that court and who specializes in that specific area of law as soon as possible.
12. What can I expect from my attorney?
Your attorney should be willing to discuss the specific facts of your case with you, the law surrounding your case, your possible defenses, and the procedure of your case. You are entitled to have your telephone calls returned in a reasonable time period and your questions answered. You are entitled to copies of all correspondence, to and from the prosecutor, the court as well as other possible witnesses. You are entitled to copies of all pleadings filed at the court and all entries from the court. You are also entitled to an attorney who advocates your position, but also advises you of the realities of your case so that you can make an informed decision.
It is my opinion that your attorney should treat you as if he/she would want to be treated.
13. What will this process cost?
Depending on the facts of your case and the outcome, there may be penalties, fines, court costs, reinstatement fees to the BMV, restitution, supervision fees for probation and cost of your jail stay and/or alcohol program as well as increases in your insurance premiums. An example of these penalties and fees are:
First Degree Misdemeanor (M-1): up to six months in jail and/or a fine of up to $1,000.
Second degree Misdemeanor (M-2): up to ninety days in jail and/or a fine of up to $750.
Third Degree Misdemeanor (M-3): up to sixty days in jail and/or a fine of up to $500.
Fourth Degree Misdemeanor (M-4): up to thirty days in jail and/or a fine of up to $250.
Minor Misdemeanor (MM) is punishable by a fine of up to $150 and possibly community service.
Alcohol Education Program (AEP)/Drivers Intervention Program (DIP): $350.00
Reinstatement Fees to BMV: $425.00
I am willing to offer you an hourly rate fee or a flat fee schedule depending on your preference and the facts of your case. Each case is unique and requires a different fee schedule as a result I will be able to more accurately advise you of the estimate of your attorney fees after an office consultation.
14. What are the mandatory minimum penalties allowed by law?
The minimum statutory penalties allowed by law for OVI offenses in violation of R.C. § 4511.19(A)(1)(a) (e) is as follows:
First offense within six years: three consecutive days in jail, which in some courts may be substituted with an alcohol education program (AEP); a $250.00 fine; a six month operator's license suspension for which you can receive limited driving privileges after the first 15 days; and six points on your operator's license. Most courts will also impose probation.
Second offense within six years: 10 consecutive days in jail; a $350.00 fine; a one year operator's license suspension with 30 days of not having any limited driving privileges; impoundment of your license plates for 90 days; impoundment of your vehicle for 90 days; immediate seizure of the vehicle; and six points on your operator's license. Most courts will also impose probation.
Third offense within six years: 30 consecutive days in jail; $550.00 fine; a one year operator's license suspension without any privileges for the first 180 days, immediate seizure of the vehicle; six points on your operator's license; and ultimately forfeiture of the vehicle being driven. Most courts will also impose probation.
The minimum statutory penalties allowed by law for OVI offenses in violation of R.C. § 4511.19(A)(1)(f) (i) and (A)(2) are as follows:
First offense within six years: six consecutive days in jail, which in some courts three days may be substituted with an alcohol education program; a $250.00 fine; a six month operator's license suspension for which you can receive limited driving privileges after the first 15 days; and six points on your operator's license. Most courts will also impose probation.
Second offense within six years: 20 consecutive days in jail; a $350.00 fine; a one year operator's license suspension with 30 days of not having any limited driving privileges; impoundment of license plates for 90 days; impoundment of vehicle for 90 days; immediate seizure of the vehicle; and six points on your operator's license. Most courts will also impose probation.
Third offense within six years: 60 consecutive days in jail; a $550.00 fine; a two year operator's license suspension without any privileges for the first 180 days, immediate seizure of the vehicle; six points on your operator's license; and ultimately forfeiture of the vehicle being driven. Most courts will also impose probation.
Please note that a sentencing on an OVI/OMVI/DUI charge in Ohio, can be greater than the mandatory minimum. The mandatory minimum penalty is simply that the minimum.
