Steve Palmer [00:00:01]:

All right, Lawyer Talk podcast question and answer series continues. This one comes from Nancy here in Ohio, right at the website. By the way, if you want to leave us a question, lawyertalkpodcast.com that's what Nancy did here. And she says, hello, my son is charged with OVI here in Ohio. He took a breath test and had a result of 0.07, which is below the legal limit, but they still arrested him and charged him with ovi. I don't understand how he can be charged if he was under the legal limit. Great question. It's a great jumping off point to cover.

Steve Palmer [00:00:31]:

Sort of a convoluted topic that I think I can simplify. First of all, OVI in Ohio is dui, so they're interchangeable. And our legal limit in Ohio is 0.08 for adults, for kids. And if you have a CDL, it's a lot lower. But at any rate, here's how this shakes out. There are two ways you can be charged with OVI or DUI here in Ohio. The first is the old fashioned way. The police have to prove that you're under the influence of alcohol.

Steve Palmer [00:01:00]:

We call this an impaired charge. This means that you're just too drunk to drive. And what are the. What you can imagine what the evidence is. The police come upon you and you've got vomit down the front of your shirt, or you've got pee down the front of your pants, you got slurred speech, bloodshot eyes, you're unsteady, you can't walk, you can't talk, etc. A lot of times it's more subtle. I'm adding some drama here, but this is where field sobriety is very important, because if you do poorly on field sobriety tests, you're just giving the police evidence of your own impairment. And they have to prove essentially that you're appreciably impaired, such that you should not be driving a car.

Steve Palmer [00:01:35]:

That's number one. Number two, it is a crime to operate a motor vehicle in Ohio if you have a prohibited concentration of alcohol in your blood, breath or urine, any of those three. And it's also true of things like hard drugs. So if it's cocaine, if it's heroin, if it's even marijuana, we call this in Ohio a per se charge. And we call it a per se charge because it doesn't matter if you appear to be impaired. If you're driving with a prohibited alcohol content in your blood, breath or urine, then that's a crime. So back to Nancy. Her son was not, apparently driving with a prohibited alcohol content because he had a result of.07 and the legal limit in Ohio is.08.

Steve Palmer [00:02:22]:

But he can still be charged with being impaired. The police, the prosecutor, can gather their evidence and still try to make a claim that irrespective of the blood alcohol content, your son Nancy is under the influence of alcohol. How do they prove it? Well, the same way we just talked about. They're going to look at his demeanor. They're going to look at his whether he was unsteady on his feet, did he have an odor of alcohol on or about his breath or person, how did he interact with the cops, how did he perform on field sobriety? There's a lot more information we would need here. But I will say this, this is an easier case to defend. I mean, certainly for all sorts of reasons. Logically speaking, if you've got a lower blood alcohol content, even if you accept as true that these machines are accurate, then you're obviously not going to exhibit signs of impairment as much as you would if you got a higher alcohol content.

Steve Palmer [00:03:11]:

And by the way, these per se charges were designed to deal with the folks who can drink 20 beers and look normal. Everybody knows one of those. So it doesn't mean that you can still drive, but we've got the reverse here, where somebody's lower but still may show signs of impairment doesn't mean that you can drive. Just because you're below the legal limit means that you can't drive impaired and they have to prove it. Now, the next question that you didn't ask that may come up is can the prosecutor. Can the prosecutor put into evidence or can, I guess, the defense would be doing it here? Can the defense put into evidence the results of the breath test in Ohio? The answer is generally no. You would need some expert testimony or something to relate that test result to impairment because the only legal issue here is impairment. Now, you would think, well, doesn't it make sense that if you've got alcohol content below limit that it would be indicative of less impairment? Yeah, you would think, but go to law school and start doing this for a living.

Steve Palmer [00:04:15]:

You'll see how convoluted and crazy it gets. So not necessarily. Can you just say, well, look, folks, he's under, under the legal limit, he must not be impaired? That would take some expert testimony and some. We'd have to link that up, legally speaking. So, look, I hope you've got good counsel. And by the way, whether it's me or somebody else, don't think you can go handle these DUIs or OVIs in Ohio. Here, without a lawyer, always get a lawyer. At a minimum, they're going to help you get through the system, and they're going to help you answer questions that you don't know the answer to.

Steve Palmer [00:04:45]:

They're going to help you deal with your license suspension issues. They're going to help you deal with probation, certified three day programs, et cetera. There's a lot that goes on with these cases, and if you want any chance of beating it, you're going to need a lawyer. So look, you got a question, you got a topic you want us to cover here at Lawyer Talk Podcast? Leave a comment in the social Shoot me a question@LawyerTalkPodcast.com off the Record on the air until next time.