Ohio OVI/DUI Law

When is a person under the influence of alcohol or drugs?

Ohio law states that “no person shall operate any vehicle…if, at the time of the operation, any of the following apply”:
(a) The person is under the influence of alcohol, a drug of abuse, or a combination of them.
(b) The person has a concentration of eight-hundredths of one per cent or more but less than seventeen-hundredths of one per cent by weight per unit volume of alcohol in the person’s whole blood.
(c) The person has a concentration of ninety-six-thousandths of one per cent or more but less than two hundred four-thousandths of one per cent by weight per unit volume of alcohol in the person’s blood serum or plasma.
(d) The person has a concentration of eight-hundredths of one gram or more but less than seventeen-hundredths of one gram by weight of alcohol per two hundred ten liters of the person’s breath.
(e) The person has a concentration of eleven-hundredths of one gram or more but less than two hundred thirty-eight-thousandths of one gram by weight of alcohol per one hundred milliliters of the person’s urine.
(f) The person has a concentration of seventeen-hundredths of one per cent or more by weight per unit volume of alcohol in the person’s whole blood.
(g) The person has a concentration of two hundred four-thousandths of one per cent or more by weight per unit volume of alcohol in the person’s blood serum or plasma.
(h) The person has a concentration of seventeen-hundredths of one gram or more by weight of alcohol per two hundred ten liters of the person’s breath.
(i) The person has a concentration of two hundred thirty-eight-thousandths of one gram or more by weight of alcohol per one hundred milliliters of the person’s urine.
(j) Except as provided in division (K), the person has a concentration of any of the following controlled substances or metabolites of a controlled substance in the person’s whole blood, blood serum or plasma, or urine that equals or exceeds any of the following:
(i) The person has a concentration of amphetamine in the person’s urine of at least five hundred nanograms of amphetamine per milliliter of the person’s urine or has a concentration of amphetamine in the person’s whole blood or blood serum or plasma of at least one hundred nanograms of amphetamine per milliliter of the person’s whole blood or blood serum or plasma.
(ii) The person has a concentration of cocaine in the person’s urine of at least one hundred fifty nanograms of cocaine per milliliter of the person’s urine or has a concentration of cocaine in the person’s whole blood or blood serum or plasma of at least fifty nanograms of cocaine per milliliter of the person’s whole blood or blood serum or plasma.
(iii) The person has a concentration of cocaine metabolite in the person’s urine of at least one hundred fifty nanograms of cocaine metabolite per milliliter of the person’s urine or has a concentration of cocaine metabolite in the person’s whole blood or blood serum or plasma of at least fifty nanograms of cocaine metabolite per milliliter of the person’s whole blood or blood serum or plasma.
(iv) The person has a concentration of heroin in the person’s urine of at least two thousand nanograms of heroin per milliliter of the person’s urine or has a concentration of heroin in the person’s whole blood or blood serum or plasma of at least fifty nanograms of heroin per milliliter of the person’s whole blood or blood serum or plasma.
(v) The person has a concentration of heroin metabolite (6-monoacetyl morphine) in the person’s urine of at least ten nanograms of heroin metabolite (6-monoacetyl morphine) per milliliter of the person’s urine or has a concentration of heroin metabolite (6-monoacetyl morphine) in the person’s whole blood or blood serum or plasma of at least ten nanograms of heroin metabolite (6-monoacetyl morphine) per milliliter of the person’s whole blood or blood serum or plasma.
(vi) The person has a concentration of L.S.D. in the person’s urine of at least twenty-five nanograms of L.S.D. per milliliter of the person’s urine or a concentration of L.S.D. in the person’s whole blood or blood serum or plasma of at least ten nanograms of L.S.D. per milliliter of the person’s whole blood or blood serum or plasma.
(vii) The person has a concentration of marijuana in the person’s urine of at least ten nanograms of marihuana per milliliter of the person’s urine or has a concentration of marijuana in the person’s whole blood or blood serum or plasma of at least two nanograms of marijuana per milliliter of the person’s whole blood or blood serum or plasma.
(K) this section does not apply to a person who operates a vehicle…while the person has a concentration of a listed controlled substance or a listed metabolite of a controlled substance in the person’s whole blood, blood serum or plasma, or urine that equals or exceeds the amount specified in that division, if both of the following apply:
(1) The person obtained the controlled substance pursuant to a prescription issued by a licensed health professional authorized to prescribe drugs.
(2) The person injected, ingested, or inhaled the controlled substance in accordance with the health professional’s directions.
Although the above rules cover a majority of activities that define the legal limits between sobriety and intoxication, you should contact one of our attorneys for additional analysis of the facts involving your case.

Ohio OVI/DUI Offenses by Statute: [ORC § 4511.19(A)(1)(a-i), § 4511.19(B) § 4511.19(A)(2)]

Under Ohio law, a specific OVI/DUI charge is based on a tier level as well as age and number of pervious OVI/DUI offenses; potential charges include:
(1) OVI Impaired (§ 4511.19 (A)(1)(a)) Operating, etc., while under the influence of alcohol, a drug of abuse, or alcohol and a drug of abuse.
(2) OVI “Per Se” Offenses. Ohio has two per se “tiers” for alcohol in each bodily substance. The per se offenses are operating, etc, with a:

(A) Blood Alcohol Content (BAC whole blood) of .08 (low tier) or .170 (high tier);
(B) Blood Plasma Content (BAC blood serum) of .096 (low tier) or .204 (high tier);
(C) Breath Alcohol Content (BrAC) of .08 (low tier) or .170 (high tier);
(D) Urine Alcohol Content (UrAC) of .11 (low tier) or .237 (high tier.)
(3) OVUAC (OVI Under Age Consumption; § 4511.19 (B)) is a per se applied to those less than 21 years old who operate, etc with a .02 BAC, .03 BAC-serum, .02 BrAC, or .028 UrAC. (Can also be charged with OVI impaired and low and high tiers if applicable. An OVUAC conviction is counted as a “prior” OVI.)
(4) OVI Criminal Refusal (§ 4511.19 (A)(2) created 9-23-04.) Committing an OVI offense if person has already been convicted of OVI or OVUAC within 20 years of new offense and person refuses a chemical test after being requested to take a test and after being provided the advice contained on the Implied Consent form (this does not apply to “optional” roadside “preliminary” breath tests).
(5) Physical Control (of vehicle while impaired): Requires proof of elements of an OVI (impaired or per se) except for the element of operation (movement.) Only requires that one be “in the driver’s position…having possession of the ignition key or other ignition device.”

Potential Consequences for OVI/DUI in Ohio

OVI/DUI punishments may be based on the number of previous offenses and may include:

Administrative License Suspension (ALS)
If you are stopped for drunk driving and you refuse to take the sobriety test, or if your test results exceed the legal limit of Blood Alcohol Concentration (BAC), the law enforcement official can take your driver’s license on the spot, and the suspension begins immediately. However, ALS only applies when vehicle is traveling “on a highway or any public or private property used by the public for vehicular travel or parking within this state or (being) in physical control of a vehicle.” Also, depending on previous offenses or refusals, you can have your license automatically suspended for a period of 90 days to five years; however, the ALS is independent of any jail term, fine or other criminal penalty imposed in court for a DUI offense.

ALS Appeal Process
The court must hold the administrative license suspension hearing within five days of arrest. The appeal is heard at this initial appearance if requested. The scope of appeal is confined to four issues.

  • Was the arrest based on reasonable grounds?
  • Did the officer request the person to take a test?
  • Was the violator made aware of the consequences if he/she refused or failed the test?
  • Did the person refuse or fail the test?

If court finds the person is a threat to public safety, a court may still issue a suspension even if 1-4 is proven by defendant.

In addition to ALS, OVI/DUI offenders may receive any of the following punishments based on specific circumstances and number of offenses:

First time offenders may receive:
Administrative License Suspension (ALS) for a prohibited BAC
ALS for test refusal results in one year license suspension;
Jail – Minimum of three consecutive days or 3-day driver intervention program;
Fine – Minimum $325.00 and not more than $1,000;
Court License Suspension – 6 months to 3 years
Two-time offenders may receive:
ALS for one year for a prohibited BAC;
ALS for test refusal may result in a two year license suspension;
Jail – Minimum of 10 consecutive days or five days jail + minimum 18 consecutive days of electronically monitored house arrest combined, not to exceed 6 months;
Fine – Minimum $300 and not more than $1,500;
Discretionary driver’s intervention program;
Vehicle immobilization and plates impounded for 90 days;
Court License Suspension – 1 year to 5 years
Third-time offenders may receive:
ALS for two years for a prohibited BAC;
ALS for test refusal may result in a three year license suspension;
Jail – Minimum 30 consecutive days to one year;
Alternative sentence – 15 days or Jail plus a minimum 55 consecutive days of electronically monitored house arrest combined, maximum of one year;
Fine – Minimum $500 and not more than $2,500;
Mandatory attendance in an alcohol treatment program paid for by offender;
Vehicle immobilization and plates impounded for 180 days;
Court License Suspension – 1 year to 10 years.
Four, or more time offenders, and vehicular related felons may receive:
ALS for three years for a prohibited BAC;
ALS for test refusal may result in a five years license suspension;
Jail – Minimum of 60 consecutive days and up to one year in jail;
Fine – Minimum $750 and not more than $10,000;
Mandatory drug/alcohol treatment program paid for by offender;
Vehicle Forfeiture – Mandatory criminal forfeiture of vehicle operated by offender, imposed by court;
Court License Suspension – 3 years to Permanent Revocation.
Ohio courts also distinguish between misdemeanor and felony OVI/DUI offenses and assign punishment based on the type and number of offense(s).

Misdemeanor OVI/DUIs

Unless otherwise noted herein OVI offenses are First Degree Misdemeanors. The following apply to “Low Tier” OVI “Per Se” and OVI “Impaired” misdemeanor offenses:
(1) First OVI Offense – no prior offense (within 6 years): Jail term of 3 days to 6 months; fine of $250 to $1,000; license suspension (Class 5) of 180 days to 3 years and 6 points against their license.
All OVI license suspensions include a period of “Hard Time” with no privileges; the Hard Time Suspension periods for an OVI conviction are the same time periods as a corresponding ALS Suspension. (However, the ALS and OVI cases and suspensions are separate.)
(2) Second OVI Offense – 1 prior (within 6 years): Jail term of 10 days to 6 months; fine of $350 to $1,500; license suspension (Class 4) of 1 year to 5 years, vehicle immobilized for 90 days, 6 points against license.
(3) Third OVI Offense – 2 priors (within 6 years): Jail term of 30 days to 1 year; fine of $800 to $10,000; license suspension (Class 3) of 2 years to 10 years. Vehicle is subject to forfeiture and may receive 6 points against license.
Double jail time for high tier per se and criminal refusal: Conviction of a “High Tier” Per Se offense or Criminal Refusal offense (refusal and prior OVI within 20 years), will double each of the minimum periods of incarceration specified above. Note: Criminal Refusal requires proof and conviction of the new OVI Impaired offense. High (and Low) tier per se charges and OVUAC do not require proof or conviction of “impairment.”
Conviction for most OVI offenses and some other traffic offenses require the use of “Distinctive License Plates” (currently red & yellow). A court may require them for any OVI conviction, and must require the offender to obtain distinctive plates (to grant any driving privileges) if any of the following apply: the person has any prior OVIs within 6 years or if the person has no priors but is charged with a high tier or criminal refusal.

Felony OVI/DUI
If the person has 1 prior felony, 3 prior OVI convictions w/in 6 years or 5 prior OVI convictions in 20 years an additional OVI offense is considered a felony. In Ohio, felony sentences are governed by the OVI statute as well as the general Felony Sentencing Statutes and specific Felony sentencing statutes. Because of the constant changes in these statutes the below is only a general guide to felony OVI sentences. The minimum sentence authorized by law in a given case could be much greater than shown below. Additionally, as with misdemeanors, felony minimum sentences are doubled for high tier or criminal refusal offenses.
(4) Felony 4 OVI – (Repeat Misdemeanor Offender). If a person has 3 or 4 prior misdemeanor OVI convictions within 6 years or 5 prior misdemeanor OVI convictions within in 20 years OVI is a Felony of the Fourth Degree. Although they are both F-4’s and carry the same fines, suspensions and vehicle sanctions 5 priors in 20 years carries significantly increased jail / prison time. For F-4 OVIs without the 5 in 20 activity, the following apply: The judge can either impose local incarceration (including jail, a community-based correctional facility, a halfway house, or an alternative residential facility) and/or a jail term ranging from 60 days (low tier) or 120 days (high tier or Criminal Refusal) to 1 year -OR- a prison term of 60 days (low tier) or 120 days (high tier or criminal refusal) plus an (optional) addition prison term of 6 to 30 months. Additional penalties include probation / parole with conditions, including mandatory alcohol / drug treatment; fine of $800 to $10,000; license suspension of 3 years to life.
(5) Felony 3 OVI – (RFO) Repeat Felony Offender: Any new OVI with a prior Felony OVI Conviction is a Felony 3. Where there is a prior Felony and a total of 4 other prior felony or misdemeanor convictions OVI is an F-3 but the 5 within 20 spec applies to the jail / prison time. Low Tier, High Tier and Criminal Refusal distinctions apply. 

An F-3 OVI carries a mandatory prison term of 60 days (Low Tier) or 120 days (High Tier or Crim Refusal) up to 5 years in prison. Additional penalties include post release control (probation / parole) with conditions, including mandatory alcohol / drug treatment; fine of $800 – $10,000, license suspension (Class 2) 3 years to life. Vehicle subject to forfeiture and may receive 6 points against license.
Ohio Chemical Test Laws and Blood-Drawing Statute
When stopped under a suspicion of OVI/DUI, law enforcement officials may test a driver for their influence under alcohol or a controlled substance under the following:
“A chemical test must be performed in accordance with methods approved by the Director of Health and by a person possessing a valid permit to do so, issued by the Director of Health. Sample must be taken within 3 hours of driving to be admitted in per se case or admitted without an expert.”

Upon request, the “results” of the test must be made available to person who was tested or attorney immediately upon completion of test. Under Ohio law, only a physician, registered nurse, or a qualified technician or chemist may withdraw blood for purposes of police testing. Additionally, the person tested may have a physician or other qualified person of his or her own choosing administer a chemical test in addition to the police test. But this is a right that has not been generally enforced as the failure or inability to obtain such an additional test does not preclude the admission of the police test and the officer’s failure to advise suspect of right to an independent test does not preclude admission of the police test.

How can Luftman, Heck and Associates Help?

Whatever the OVI/DUI charges you face, our attorneys are committed to providing strong representation to protect your rights. From the ALS hearing to the criminal court prosecution, we will ensure that you are provided a fair and just review of your case and preserve and raise all valid defenses.
Traffic Offenses

Although receiving a traffic ticket may not immediately cause you seek legal representation, the situation may require more attention that you believe. Simply paying a traffic ticket does not end the matter as you may still receive points against your driving record, which may result in the suspension or revocation of your drivers’ license or an increase in your insurance costs. Some insurance laws permit insurance companies to increase your premiums up to fifty percent depending on the number of violations committed. As such, a few simple traffic violations may result in a long-term increase in the cost of your insurance.

Attorneys at Luftman, Heck & Associates represent clients in a variety of traffic offense situations. You have the right to challenge the validity of a traffic ticket. By examining factors like the accuracy of radar detector readings and the officer’s report, we will thoroughly analyze each part of the case against you. If you received a traffic ticket, you need a traffic violation and speeding ticket attorney to stand up for your rights. Our attorneys represent our clients throughout entire case and court process, from arraignment through trial (if necessary). We represent clients in traffic cases, including:

  • Driving Under Suspension
  • No Operators License
  • Failure to Reinstate License
  • Speeding tickets
  • Reckless driving
  • Failure to stop
  • Failure to yield
  • Illegal turn; and all other moving traffic violations

Working with our clients, we will determine the best course of action to pursue in efforts to eliminate or reduce potential jail time (in certain offenses), points on your license and increased insurance costs. We are committed to protecting our clients driving privileges against suspension and revocation and will counsel our clients on the necessary procedures to reclaim their valid license when taken away, determining whether they are eligible for limited driving privileges and if so, the best course of action to take in requesting full or limited driving privileges from the court.