Blew .016, still charged with OVI

[DC1377]

What is the name of your state? Ohio

I was pulled over last night for stopping past a stop bar at a stop sign in Blendon Township (Colunbus). I had an empty Natty light tall boy and another that I had just opened and taken a sip of. I didn't try to hide the open containers as I knew it wouldn't do any good.
I was very cooperative, the police gave me the follow the finger test, heel to toe and stand on one foot, which they said I failed. They let my friend get my car so I didn't have to have it towed and then they took me to the station for a breath test.
Anyway, I took the test as I literally had 27 ounces of light beer in the past two hours, so I knew I would blow under. Long story short, I blew .016, but they still charged me with OVI and the stop violation, but not the open container. The cop even drove me home and apologized for giving me the ticket. He even called his sergeant to see if he could rip up the ticket, but the sergeant said no.
So now I have a court date in a few days and I need a little advice. Do I need an attorney for blowing a .016 when the legal limit is .08?
Also, as a side note, the cop never asked permission to search my car. I didn't really care since I had nothing to hide (I don't do drugs of any kind). He also left the empty beer cans in my trunk.

 

[Taxing Matters]

What is the name of your state? Ohio
Do I need an attorney for blowing a .016 when the legal limit is .08?

You absolutely need a lawyer.

Unfortunately because of all the press that the so called "legal limit" of .08 gets many people seem to think that they are fine driving as long as their blood alcohol content (BAC) is under .08. But that's not the case. In most every state, the DUI laws have two parts to them. One, which you know, makes it a DUI to operate a vehicle with a BAC of .08 or more (or .05 or more in Utah). The other is that it is a DUI to operate a vehicle while your ability to drive it is impaired with drugs and/or alcohol regardless of the BAC amount. What this means is that when your BAC is under .08 the officer needs to have some evidence of impairment coupled with evidence that you have drugs or alcohol in your system to make the arrest for DUI. One of the key ways cops get that evidence of impairment is by doing the field sobriety test (FST). But the thing is in most states you are not required to do the FST, and if not required to do it then you should decline to do it, at least when you've been drinking. Failing the FST can really hurt, giving the cop what he needs to make the DUI case. Of course the open containers of alcohol, the likely smell of alcohol on your breath, and any admission you made to drinking would have given him evidence of drinking and certainly enough to get the breath test, which then confirmed the alcohol in your system, (You should never admit to drinking when pulled over by a cop, by the way, you have a right to remain silent when cops question you and you should use that right. That admission won't ever help you, but it sure can hurt you.)

So, the bottom line here is that even blowing below a .08 BAC it is still possible for you to be convicted of DUI. Might there be a good defense for you? Maybe, though the facts you provided don't point to anything that I can see. But not all the facts are here, and a good DUI lawyer will look at everything and tell you what weaknesses the state's case has and what your options are. That's important as you want to avoid a DUI conviction if you can. Apart from the fines and other penalties for a DUI your car insurance will skyrocket with a DUI conviction. And depending on the work you do, it might impact your job.

Also, as a side note, the cop never asked permission to search my car. I didn't really care since I had nothing to hide (I don't do drugs of any kind). He also left the empty beer cans in my trunk.

The cop doesn't need consent or a warrant to seize what is in plain sight. In addition, once the cop makes the arrest, often the cop can legally do an inventory search of the car without a warrant or consent, too. In any event, it looks like there isn't anything the cop needed here beyond what was in plain sight anyway, so any further search doesn't really impact things.

 

[quincy]

How old are you, DC1377?

I agree with Taxing that you need the services of an attorney.

 

[LdiJ]

I agree that you also need an attorney. There is every possibility that an attorney could get it thrown out completely. No guarantee, but every possibility.

If you look at the attached chart, his bac was below average for 1 regular drink, let alone a tallboy.

BloodAlcoholChart-FLYER.indd (notredamecollege.edu)

 

[quincy]

Here is a link to Ohio’s law, followed by a link to driving restrictions:

https://codes.ohio.gov/orc/4511.19

https://www.bmv.ohio.gov/susp-ad-first-offense.aspx#gsc.tab=0

 

[Taxing Matters]

I agree that you also need an attorney. There is every possibility that an attorney could get it thrown out completely. No guarantee, but every possibility.

The case would not be dismissed by the judge based on the fairly low BAC. But perhaps his defense attorney could persuade the jury that the reason for the FST failure and any other signs of impairment wasn't due to alcohol (given the low amount) but something else. If that's the defense they use, no telling how that would play with some unknown jury.

 

[quincy]

A defense could be difficult given the facts as presented here. Driving with open containers, the containers of which were in plain view, indicates that DC1377 will want an experienced attorney if s/he hopes to escape conviction.

 

[LdiJ]

A defense could be difficult given the facts as presented here. Driving with open containers, the containers of which were in plain view, indicates that DC1377 will want an experienced attorney if s/he hopes to escape conviction.

Had he been cited for the open container I would agree. However he specifically said that he was not cited for the open container. The police officer also apologized for citing him at all for OVI. I absolutely agree that he needs an attorney to get the best result.

 

[DC1377]

How old are you, DC1377?

50

 

[quincy]

50

Thank you for answering my question, DC1377. I was curious if you were an underage drinker. You’re not.

And to LdiJ, charges can be added.

 

[DC1377]

And to LdiJ, charges can be added.

What do you mean by this? They can add the open container charge after the fact? Could you explain this in more detail?

 

[quincy]

What do you mean by this? They can add the open container charge after the fact? Could you explain this in more detail?

Until you appear in court, there can be changes in the charges. The police issue the ticket and turn it over to the prosecutor for prosecution. The prosecutor can decide not to pursue charges, or can decide after investigation to add or change charges.

 

[quincy]

Here is a link to State of Ohio v. Demetrius Rosemond: https://www.supremecourt.ohio.gov/rod/docs/pdf/1/2015/2015-Ohio-4878.pdf

Here is a link to State v. Campbell:
https://www.supremecourt.ohio.gov/rod/docs/pdf/0/2003/2003-Ohio-6804.pdf

These cases speak to the hows and whens of amended complaints.

Again, you will want to seek out an attorney in your area experienced in alcohol-related offenses.

 

[DC1377]

Until you appear in court, there can be changes in the charges. The police issue the ticket and turn it over to the prosecutor for prosecution. The prosecutor can decide not to pursue charges, or can decide after investigation to add or change charges

Would that be common for the prosecutor to add the open container charge. Personally, I think the whole damn thing is ridiculous. I realize that I should not have had an open container in the car, but I have never understood that law to begin with. What is the difference between having a couple of beers and then driving vs. having the same couple of beers while driving. Anyway, that is probably a mute point, just my digression.

To LdiJ's point and the consumption chart, I tested at .016, which is less than one regular drink in an hour. I can not speak to why I would have failed the eye test (I honestly had at most 27 oz. of beer and I do not do drugs). As for the heel to toe and stand on one leg, I do not have the best balance and I tried to do it completely sober today. I failed. I just don't understand why they would chose to charge me. I was not driving erratically, not swerving, not belligerent. I am a very easy going person not trying to cause any trouble.

Anyway, I did hire an attorney today, so there is 1k down the drain. but he is very confident that he can get this dismissed. Fingers crossed.

 

[quincy]

Would that be common for the prosecutor to add the open container charge. Personally, I think the whole damn thing is ridiculous. I realize that I should not have had an open container in the car, but I have never understood that law to begin with. What is the difference between having a couple of beers and then driving vs. having the same couple of beers while driving. Anyway, that is probably a mute point, just my digression.

To LdiJ's point and the consumption chart, I tested at .016, which is less than one regular drink in an hour. I can not speak to why I would have failed the eye test (I honestly had at most 27 oz. of beer and I do not do drugs). As for the heel to toe and stand on one leg, I do not have the best balance and I tried to do it completely sober today. I failed. I just don't understand why they would chose to charge me. I was not driving erratically, not swerving, not belligerent. I am a very easy going person not trying to cause any trouble.

Anyway, I did hire an attorney today, so there is 1k down the drain. but he is very confident that he can get this dismissed. Fingers crossed.

I am happy to hear that you have hired an attorney. The “1k down the drain” can actually be one of the best investments you have ever made.

Not understanding that driving after drinking and driving with open containers in the car is illegal does not make the illegality any less.