Scruit Posted September 5, 2011 Report Share Posted September 5, 2011 You can be convicted of ovi for performing poorly on the field sobriety tests even if you haven't touched a drop. Nerves, adrelanine, balance, old injuries, current injuries etc all play a part. Heck, with my ankle injury recently I couldn't balance on that foot stone cold sober until halfway through physio. (The officer should ask, or be told, about injuries that could affect your performance and he or she should adjust the tests to account for that).I don't trust the field sobriety tests that require you to walk or balance. HGN is fine and reciting the alphabet should never be a problem to a sober person. I'd just ask for a breathalyser.But I've never been pulled over on suspicion of OVI. If you've been individually hand-picked out of the flow of traffic for investigation of OVI then you've probably done SOMETHING to get the cop's attention. Quote Link to comment Share on other sites More sharing options...
FZRMatt Posted September 5, 2011 Report Share Posted September 5, 2011 isn't all that hearsay? Not sure why he didn't blow if wasn't really drinking.because he was drinking! Quote Link to comment Share on other sites More sharing options...
madcat6183 Posted September 5, 2011 Report Share Posted September 5, 2011 You can be convicted of ovi for performing poorly on the field sobriety tests even if you haven't touched a drop. Nerves, adrelanine, balance, old injuries, current injuries etc all play a part. Heck, with my ankle injury recently I couldn't balance on that foot stone cold sober until halfway through physio. (The officer should ask, or be told, about injuries that could affect your performance and he or she should adjust the tests to account for that).I don't trust the field sobriety tests that require you to walk or balance. HGN is fine and reciting the alphabet should never be a problem to a sober person. I'd just ask for a breathalyser.But I've never been pulled over on suspicion of OVI. If you've been individually hand-picked out of the flow of traffic for investigation of OVI then you've probably done SOMETHING to get the cop's attention.Just an FYI you are incorrect on both of your posts. In this one for example you cannot be convicted due to sobriety tests, they must have actual proof, blood, urine, or blowing, with BAC over the limit. Field tests can place you under arrest but you are not going to be convicted on that with any decent lawyer, or most likely even a public. If you knowingly have an injury or something that prevents you from performing a test correctly, you are legally entitled to deny that tests, hence why they have over 5 to pick from. Field Sobriety tests are made to fail, even the police will tell you most of the time they cannot complete the tests fully, which is why they only do portions. The only test that is truly able to determine any accurate issues is the pen tests, and even then if you wear glasses, have catarics, have had corrective surgery, you can still fail.OVI refusal is actually deemed to be failure to control and the normal loss of license is 60 to 90 days, vs. the 6 months minimum for bac over the limit deemed by blowing, urine, or blood. Quote Link to comment Share on other sites More sharing options...
ReconRat Posted September 5, 2011 Report Share Posted September 5, 2011 ...the officer asked if I knew why he pulled me over... Standard question. Any answer is admissible evidence. And it's good enough to issue the citation.I've actually said "not sayin' ", which gets a confused look, and they try again repeatedly. When they get to the non moving violations, I say "Yes, you are correct." Done deal, I'll take that for my being stupid. Quote Link to comment Share on other sites More sharing options...
Pokey Posted September 5, 2011 Report Share Posted September 5, 2011 (edited) Everything I've read in defense of the accused is believable. The news lying, a woman freaking out at the site of a gun, etc. All standard. I even believe that the roadside stupid human tricks test could be a problem for someone with the injuries described. If you're accused of something like this and you have a permit, you know the serious nature of the license. If you passed the class, you know that it's not a game. If you're suspected of DUI while you are armed, you know to submit to the roadside tests. You should be demanding one and a blood test to immediately prove your innocence. The test might lie? Please! If you have not been drinking at all, it's not going to register high enough no matter what and a blood test would certainly not show any. If you have been drinking, even just a little, you're an idiot for carrying while drinking and you don't deserve the permit. It will be interesting to see how this pans out.Agree..........and I would never do a field sobriety test, give me the blower thing or take me for a blood or urine test. Don't bring any unnecessary attention to yourself when you are carrying, because people are stupid and don't mind their own damn business. The media rarely ever reports true and accurate anything, they must always spice up the story to get people interested and worked up. Carrying is a big responsibility, obey any and all rules "whether stupid or not" and you have the law in your favor. Edited September 5, 2011 by Pokey Quote Link to comment Share on other sites More sharing options...
FZRMatt Posted September 5, 2011 Report Share Posted September 5, 2011 How do you know that? You presume he HAD BEEN drinking' date=' because he declined the test, but that doesn't mean he was drunk. If the officer(s) don't witness him driving erratic, then how can they request he submit to a sobriety test? I've been pulled over on several occasions and have never been asked to blow. I was pulled over one time, and the officer asked if I knew why he pulled me over.(lol.. like I'm going to say, "Yeah!! I was....")Anyway, he said an off-duty officer witnessed me split a lane and tear ass from a stop light. He said since the he didn't witness it himself, he couldn't write me a ticket. I assume he wasn't lying to me, and his hands truly were tied. Now, if that's the case, how can these officers ask this man to take a FST if they didn't witness any wrong-doing?[/quote']Taking into account the totality of the circumstances, (caller who actually identifies themselves, odor of an alcoholic beverage on or about their person, and filed FST's) there is enough information to request a breath test. If he had actual injuries, he would have told the officer when he asked "do you have any injuries that would prevent you from standing on one leg". This is a standard question when administering FST's. If you fail the FST's, you have one final chance to prove your innocence, the breath test. If you refuse the FST's, your license is automatically suspended for 1 year. If you take it and fail, it is suspended for 90 days. So, if you truly were not drinking, you have nothing to lose by blowing. When you have been drinking, roll the dice and refuse if you're feeling lucky.As a side note, Franklin Co. has "no refusal weekends" from time to time. This means that if you refuse a breath test, a search warrant is obtained by the officer from an on duty judge, requiring you to submit to a blood sample performed by a hospital. The best OVI attorney will tell you that he can always argue flaws in the breath process, but there is absolutely no arguing the blood. Quote Link to comment Share on other sites More sharing options...
Scruit Posted September 5, 2011 Report Share Posted September 5, 2011 Just an FYI you are incorrect on both of your posts. In this one for example you cannot be convicted due to sobriety tests, they must have actual proof, blood, urine, or blowing, with BAC over the limit. Field tests can place you under arrest but you are not going to be convicted on that with any decent lawyer, or most likely even a public. If you knowingly have an injury or something that prevents you from performing a test correctly, you are legally entitled to deny that tests, hence why they have over 5 to pick from. Field Sobriety tests are made to fail, even the police will tell you most of the time they cannot complete the tests fully, which is why they only do portions. The only test that is truly able to determine any accurate issues is the pen tests, and even then if you wear glasses, have catarics, have had corrective surgery, you can still fail.OVI refusal is actually deemed to be failure to control and the normal loss of license is 60 to 90 days, vs. the 6 months minimum for bac over the limit deemed by blowing, urine, or blood.The standard penalty for first OVI in my area was always 3 month suspension, work driving privileges after 30 days. 30 days in jail, 27 days suspended, 3 days traded in for drug/alcohol interdiction program. I see that a class 5 suspension is 6 months. When did that change? Must have been in the last 5-6 years.There is a difference between OVI and OVI per se. OVI means they have to prove impairment (poor FST performance = impairment) and OVI per se is when your alcohol concentration (blood, breath, urine etc) is above the prescribed limit. They don't have to prove impairment for OVI per se - it is assumed. OVI Refusal is NOT "Failure to control". Refusal leads to a longer Administrative License Suspenion (1 year?) , but it's still an OVI charge - just not OVI per se. Failure to count to ten is likely going to be entered as evidence of impairment.You can legally deny all fo the SFSTs and you refuse to blow in the bag at the side of the road - but expect that your next stop is the station where you will be required to give a sample of blood/breath/urined etc that you cannot refuse. Or at least you will be charged for that refusal. There is no right to remain silent as the 5th amendment relates to testimony, not blood/breath/urine. Quote Link to comment Share on other sites More sharing options...
Scruit Posted September 5, 2011 Report Share Posted September 5, 2011 TAs a side note, Franklin Co. has "no refusal weekends" from time to time. This means that if you refuse a breath test, a search warrant is obtained by the officer from an on duty judge, requiring you to submit to a blood sample performed by a hospital. The best OVI attorney will tell you that he can always argue flaws in the breath process, but there is absolutely no arguing the blood.Am I right in believing that the portable breath test can be refused without consequences as they are not as accurate as the big machines, but the big breath machine on the desk at the cop shop is trusted to be accurate and cannot be refused without consequences...? Quote Link to comment Share on other sites More sharing options...
madcat6183 Posted September 5, 2011 Report Share Posted September 5, 2011 No, either one will hold the same water in court. There are consequences for refusal for either, but sometimes its the best option.... The only way you cannot refuse a BAC test is if a warrant is obtained.OVI's with a Breathalyzer are about 99% not going to get overturned(I think I knew 1 person that was somehow), blood work you are toast. Quote Link to comment Share on other sites More sharing options...
FZRMatt Posted September 5, 2011 Report Share Posted September 5, 2011 Am I right in believing that the portable breath test can be refused without consequences as they are not as accurate as the big machines, but the big breath machine on the desk at the cop shop is trusted to be accurate and cannot be refused without consequences...?PBT (portable breath test or road side breath test) are not admissible in court, but they do add to the probable cause for the arrest. Quote Link to comment Share on other sites More sharing options...
lightbulb Posted September 5, 2011 Report Share Posted September 5, 2011 There's certainly the possibility a PD not properly training its officers to use the equipment properly or allowing the desk machine fall out of maintenance / certification. You can buy a $40 breathalyzer from Walgreens. There's obviously an issue with calibration with such machines, which is why they do FSTs (so I'd like to think).OVI laws are nonsensical bullshit that makes you ashamed to be educated in Ohio. The precondition for an OVI is "operating a vehicle under the influence of alcohol or drug of abuse... OR soandso .08% BAC or greater in so many words". Clearly someone at .07% BAC is under the influence of alcohol. Why wouldn't they get hit with an OVI? Quote Link to comment Share on other sites More sharing options...
Steve Butters Posted September 5, 2011 Report Share Posted September 5, 2011 Just an FYI you are incorrect on both of your posts. OVI refusal is actually deemed to be failure to control and the normal loss of license is 60 to 90 days, vs. the 6 months minimum for bac over the limit deemed by blowing, urine, or blood.wrong. 1. its not failure to control, 2. failure to control is a 2-4pt violation and does not carry a license suspensionThe standard penalty for first OVI in my area was always 3 month suspension, work driving privileges after 30 days. 30 days in jail, 27 days suspended, 3 days traded in for drug/alcohol interdiction program. I see that a class 5 suspension is 6 months. When did that change? Must have been in the last 5-6 years.OVI Refusal is NOT "Failure to control". Refusal leads to a longer Administrative License Suspenion (1 year?) this ^ ...and yes, it is one year Quote Link to comment Share on other sites More sharing options...
newarkOhioLinks Posted September 5, 2011 Report Share Posted September 5, 2011 You're not toast if you're sober. Quote Link to comment Share on other sites More sharing options...
chevysoldier Posted September 5, 2011 Report Share Posted September 5, 2011 Clearly someone at .07% BAC is under the influence of alcohol. Why wouldn't they get hit with an OVI?They can.(A)(1) No person shall operate any vehicle, streetcar, or trackless trolley within this state, 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. Quote Link to comment Share on other sites More sharing options...
FZRMatt Posted September 6, 2011 Report Share Posted September 6, 2011 There's certainly the possibility a PD not properly training its officers to use the equipment properly or allowing the desk machine fall out of maintenance / certification. You can buy a $40 breathalyzer from Walgreens. There's obviously an issue with calibration with such machines, which is why they do FSTs (so I'd like to think).OVI laws are nonsensical bullshit that makes you ashamed to be educated in Ohio. The precondition for an OVI is "operating a vehicle under the influence of alcohol or drug of abuse... OR soandso .08% BAC or greater in so many words". Clearly someone at .07% BAC is under the influence of alcohol. Why wouldn't they get hit with an OVI?You could be legally impaired if you blow a .07% BAC does not take into account illegal drugs in your system. It is very common for someone to drink some alcohol while taking drugs. However, if the officer is paying attention to the HGN, he will know to ask you to submit to a urine or blood test instead of blood. They eyes give you away every time! Quote Link to comment Share on other sites More sharing options...
lightbulb Posted September 6, 2011 Report Share Posted September 6, 2011 My question is why does all of the text following the red (a) section exist? It's a subset. It's covered.(A)(1) No person shall operate any vehicle, streetcar, or trackless trolley within this state, 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.© 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) of this section, 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 marihuana in the person’s urine of at least ten nanograms of marihuana per milliliter of the person’s urine or has a concentration of marihuana in the person’s whole blood or blood serum or plasma of at least two nanograms of marihuana per milliliter of the person’s whole blood or blood serum or plasma.(viii) Either of the following applies:(I) The person is under the influence of alcohol, a drug of abuse, or a combination of them, and, as measured by gas chromatography mass spectrometry, the person has a concentration of marihuana metabolite in the person’s urine of at least fifteen nanograms of marihuana metabolite per milliliter of the person’s urine or has a concentration of marihuana metabolite in the person’s whole blood or blood serum or plasma of at least five nanograms of marihuana metabolite per milliliter of the person’s whole blood or blood serum or plasma.(II) As measured by gas chromatography mass spectrometry, the person has a concentration of marihuana metabolite in the person’s urine of at least thirty-five nanograms of marihuana metabolite per milliliter of the person’s urine or has a concentration of marihuana metabolite in the person’s whole blood or blood serum or plasma of at least fifty nanograms of marihuana metabolite per milliliter of the person’s whole blood or blood serum or plasma.(ix) The person has a concentration of methamphetamine in the person’s urine of at least five hundred nanograms of methamphetamine per milliliter of the person’s urine or has a concentration of methamphetamine in the person’s whole blood or blood serum or plasma of at least one hundred nanograms of methamphetamine per milliliter of the person’s whole blood or blood serum or plasma.(x) The person has a concentration of phencyclidine in the person’s urine of at least twenty-five nanograms of phencyclidine per milliliter of the person’s urine or has a concentration of phencyclidine in the person’s whole blood or blood serum or plasma of at least ten nanograms of phencyclidine per milliliter of the person’s whole blood or blood serum or plasma.(xi) The state board of pharmacy has adopted a rule pursuant to section 4729.041 of the Revised Code that specifies the amount of salvia divinorum and the amount of salvinorin A that constitute concentrations of salvia divinorum and salvinorin A in a person’s urine, in a person’s whole blood, or in a person’s blood serum or plasma at or above which the person is impaired for purposes of operating any vehicle, streetcar, or trackless trolley within this state, the rule is in effect, and the person has a concentration of salvia divinorum or salvinorin A of at least that amount so specified by rule in the person’s urine, in the person’s whole blood, or in the person’s blood serum or plasma.(2) No person who, within twenty years of the conduct described in division (A)(2)(a) of this section, previously has been convicted of or pleaded guilty to a violation of this division, a violation of division (A)(1) or (B) of this section, or any other equivalent offense shall do both of the following: Quote Link to comment Share on other sites More sharing options...
chevysoldier Posted September 6, 2011 Report Share Posted September 6, 2011 (edited) My question is why does all of the text following the red (a) section exist? It's a subset. It's covered.4511.19 Operating vehicle under the influence of alcohol or drugs - OVI.FZRMatt may have more of an answer, but if you wreck your car by having a head on collision by crossing the center line and have a BAC of .07, you're could get charged with 4511.19A1A on top of 4511.26A for crossing the line (and/or whatever other ORC may be relevant) Edited September 6, 2011 by chevysoldier Quote Link to comment Share on other sites More sharing options...
FZRMatt Posted September 6, 2011 Report Share Posted September 6, 2011 My question is why does all of the text following the red (a) section exist? It's a subset. It's covered.I believe that what you are reading are all of the different ways to be guilty of a straight OVI. It specifies .08-.17%. Once you hit .171% you are guilty of "High Test" OVI. It is a separate charge. It increases your penalties and fines, as well as your steps up to mandatory minimum jail time. All of the crap about the blood serum and that type of stuff, I don't get because I am not a doctor and those tests are administered by a hospital. When the lab reports come back, the court enhances your charges. Quote Link to comment Share on other sites More sharing options...
Beegreenstrings Posted September 6, 2011 Report Share Posted September 6, 2011 was the cop from akron canton there and beat the shit out of him for carrying a gun? Quote Link to comment Share on other sites More sharing options...
madcat6183 Posted September 7, 2011 Report Share Posted September 7, 2011 wrong. 1. its not failure to control, 2. failure to control is a 2-4pt violation and does not carry a license suspensionthis ^ ...and yes, it is one yearMay want to tell my Attorney and my Judge that then..... It might not be failure to control but it is not an OVI. And the suspension that goes with it is 60-90 days I forget which, but minimum OVI is 6 months. And you are correct about the 1 year for refusal, IF you are the cop telling the person that, then you go to court and get the 60-90 as stated above. Unless you don't have an attorney, then I am sure it takes the 1 year. Quote Link to comment Share on other sites More sharing options...
Scruit Posted September 7, 2011 Report Share Posted September 7, 2011 May want to tell my Attorney and my Judge that then..... It might not be failure to control but it is not an OVI. And the suspension that goes with it is 60-90 days I forget which, but minimum OVI is 6 months. And you are correct about the 1 year for refusal, IF you are the cop telling the person that, then you go to court and get the 60-90 as stated above. Unless you don't have an attorney, then I am sure it takes the 1 year.It went that way for you. Another person could wind up going through it dffierently. There's lots of variables.I knew a lady who got a speeding ticket in a small town in western Ohio. It was her second in a year so she had to appear. The judge asked for her plea and was told Guilty. The judge told her that she had to plead not guilty and get the local public defender otherwise she'd be jailed (speeding, remember). She entered a not guilty plea and hired her own lawyer (not the public defender) who appeared on her behalf, entered the guilty plea in her place. The same judge fined her the standard rate and that was then end of it - no more mention of jail time. Her lawyer thinks the judge was trying to drum up business for the public defender.Technicall, yes, you can go to jail for speeding based upon multiple offenses - but who does, honestly? Now, does that mean that anyone who gets a speeding ticket in a small town is going to go to jail for it? Or even be threatened with it? No. That was her own personal experience (which she will tell you is "how it works"). Quote Link to comment Share on other sites More sharing options...
SAMBUSA Posted September 8, 2011 Report Share Posted September 8, 2011 Soooooo, moral of the story is we shouldnt carry while riding a sportbike. Glad I've never done that.Wut? Quote Link to comment Share on other sites More sharing options...
MidgetTodd Posted September 8, 2011 Report Share Posted September 8, 2011 Yes. That never happened Quote Link to comment Share on other sites More sharing options...
SAMBUSA Posted September 8, 2011 Report Share Posted September 8, 2011 Wut tha problem is? Quote Link to comment Share on other sites More sharing options...
MidgetTodd Posted September 8, 2011 Report Share Posted September 8, 2011 yuppies, when we going to Easton in beaters Quote Link to comment Share on other sites More sharing options...
Recommended Posts
Join the conversation
You can post now and register later. If you have an account, sign in now to post with your account.