Constitutional Rights in OVI Cases

OVI Questions & Answers

  1. What are my rights once I have been arrested for Operating a Vehicle Impaired (OVI)?
  2. If I get arrested for OVI, should I submit to a test to measure of my Blood Alcohol Content?
  3. Can the officer force me to submit to a BAC test?

1. What are my rights once I have been arrested for Operating a Vehicle Impaired (OVI)?

You do not have many rights upon being arrested for OVI. Many Constitutional Rights are not applicable in OVI cases. The law surrounding OVI arrests does not recognize fundamental rights afforded to citizens by both the United States and Ohio Constitutions.

For example, although you do have the right to remain silent, statements which can be used against you will have been obtained prior to your arrest. Despite the fact that that you are not free to leave and that the officer may already have "probable cause" to arrest you for OVI, your response to the questions regarding where you were and how much you had to drink can be used against you. You do not need to be advised of your right to remain silent until after you are in custody.

You do not have the right to speak to an attorney prior to taking a breath, blood or urine test to determine your Blood Alcohol Content (BAC). The right to counsel is afforded to you only after you have decided, on your own, whether or not to submit to a test to determine your BAC.

Unreasonable governmental intrusions are not precluded in OVI cases. You can be randomly stopped, detained and searched at a "Sobriety Check Point" despite the fact that you have violated no laws. You can be ordered to step out of your car, subjected to interrogation and requested to do Field Sobriety Tests.

You are not always afforded the fundamental right of being "innocent until proven guilty." If a test reveals a BAC at or above the legal limit, the law presumes that you are guilty.

2. If I get arrested for OVI, should I submit to a test to measure of my Blood Alcohol Content?

This is a simple question with a very complex answer. Before answering this question, numerous factors must be considered.

First and foremost, if you have a commercial driver's license, it is usually best to submit to a test due to the fact that you will be subject to a license suspension for not doing so. This is true whether or not you are driving a commercial vehicle and whether or not you are actually convicted of OVI.

The second most important factor to consider is whether or not, within the past 20 years, you have been convicted of a "drunk driving" offense. If so, you can be charged with a separate crime if you refuse and be subjected to a mandatory period of incarceration if guilty of the OVI offense.

Another important factor is whether or not you were "operating" the vehicle. The term "operating" is defined by law as causing or to have recently caused movement of a vehicle. If you were not "operating" the vehicle, taking the test will likely not result in a license suspension even if your test results are over the legal limit. Refusing the test will result in an administrative license suspension of one (1) year.

The length of time you can survive without limited driving privileges is another major consideration. Assuming this is your first offense, if you submit to a test and test at or above the legal limit, you will not be eligible for limited privileges during the first 15 days from the date of your arrest. However if you refuse the test, no limited privileges can be granted during the first 30 days. In addition, some courts make it a practice to not grant any limited privileges to an individual that refuses a test unless and until that individual pleads guilty to an OVI offense.

Once these four (4) major factors are considered, there are a number of additional factors which play an important role in deciding whether or not to submit to a test. Some of these factors are weight, sex, ingestion of food, type and amount of alcohol consumed, duration of alcohol consumption and the amount of time that has passed since your last drink.

Although the duration of the Administrative License Suspension (90 days for testing at or above the legal limit and one (1) year for a refusal) is an important factor to consider, you must also consider that if the test result reveals a BAC at or above the legal limit, you will be presumed guilty and evidence of your BAC will be used against you at Trial. Moreover, depending on the level of your BAC, you could be subjecting yourself to a mandatory term of incarceration and the requirement of having special OVI plates on any vehicle you drive during the period of your license suspension.

3. Can the officer force me to submit to a BAC test?

No, the officer cannot force you to submit to a BAC test. However, the Court can. In some jurisdictions, the arresting officer will fax an Affidavit to a Judge requesting a Warrant to draw blood. The Judge will review the Affidavit and, if justified, sign a Warrant allowing a blood draw. Blood can then be legally drawn, against your will, and submitted for testing. Once an uncommon practice, warrants requiring a blood draw are becoming more common in Ohio. In most jurisdictions, warrants are used only when someone is injured or killed in an alcohol related accident.