DUI/OVI FAQ

1. Can I be convicted of OVI if I refuse to take the breath, urine or blood test?

Yes. The law presumes that if you operate a vehicle and are found to be at or above the legal limit, you are guilty of DUI / OVI. But Ohio law allows you to argue against this presumption of guilt in court. If it is proven that the alcohol level in your system is at or over the legal limit, you can be convicted of DUI / OVI even if you show no other signs of being under the influence. If you refuse to allow the arresting officer to measure the amount of alcohol in your breath, blood or urine, you still may be convicted of DUI / OVI based on evidence of impairment, such as poor driving performance, odor of alcohol, slurred speech, red and glassy eyes, and staggering and poor performance on field sobriety tests. This is why it is important to also refuse the field sobriety tests in the event you chose to refuse the breathalyzer test.

2. Should I agree to the search of my vehicle?

No. If you consent to the search of your vehicle, the officer can conduct a full search without a warrant. Anything the officer finds (including what he/she finds in the trunk) can later be used as evidence against you in court. Therefore, do not give the officer consent to search your vehicle, even if the officer insists or pressures you to consent. Simply tell the officer: "Sir / Madame, I do not consent to the search of my vehicle."

3. If I am arrested for DUI / OVI, can the officer search me and my vehicle before taking me to the police station?

Yes. After making the arrest, the officer can legally search the person being arrested and the area in his immediate control.

4. Can I exercise my right to remain silent after I have already made a statement?

In the event you chose to make a statement, you can always stop talking at any time. Just tell the officer: "I don't want to tell you anything else officer- I now chose to exercise my right to remain silent."

5. Can they use force to arrest me?

Yes, and as much force as may be necessary to arrest you. But an unreasonable amount of force can be deemed an assault. After the arrest, the officer may handcuff you, and if you resist or attempt to leave the scene, the officer may even shoot you to prevent your escape. If you claim that excessive force was used during your arrest, a judge will decide whether or not the force used was reasonable based on the circumstances.

6. What happens after I am arrested and placed in custody at the police station?

If you are arrested for DUI / OVI, a bond is usually set to assure your appearance in Court. If you cannot post the bond you may be incarcerated pending your appearance. But if a bond is posted, you can remain free as long as you show up to your arraignment date. The arraignment usually occurs within 24 hours of the arrest or the first date available if you are arrested on a weekend or holiday.

7. Can I exercise my right to remain silent after I have already made a statement?

In the event you chose to make a statement, you can always stop talking at any time. Just tell the officer: "I don't want to tell you anything else officer- I now chose to exercise my right to remain silent."

8. Can they use force to arrest me?

Yes, and as much force as may be necessary to arrest you. But an unreasonable amount of force can be deemed an assault. After the arrest, the officer may handcuff you, and if you resist or attempt to leave the scene, the officer may even shoot you to prevent your escape. If you claim that excessive force was used during your arrest, a judge will decide whether or not the force used was reasonable based on the circumstances.

9. What happens after I am arrested and placed in custody at the police station?

If you are arrested for DUI / OVI, a bond is usually set to assure your appearance in Court. If you cannot post the bond you may be incarcerated pending your appearance. But if a bond is posted, you can remain free as long as you show up to your arraignment date. The arraignment usually occurs within 24 hours of the arrest or the first date available if you are arrested on a weekend or holiday.

10. What happens if I test well over the legal limit for alcohol?

Ohio currently has enhanced minimum penalties for so called "high tier" test results, doubling the minimum jail time requirement. The high tier test results are .17% or higher for breath, .204% for blood serum or plasma, and .238% for urine.

11. What is bail?

Bail is money or other property that is deposited with the clerk to ensure your appearance at a future court date. If you return to court, as required, then your bail will be returned at the end of the case (even if you are ultimately convicted). However, if you do not come to court when required or otherwise violate your bail conditions, the bail can be forfeited.

12. What is an Administrative License Suspension?

An Administrative License Suspension (ALS) is a driver's license suspension associated with a DUI / OVI charge. It is called an "administrative" suspension because it is issued by the BMV. Therefore it is civil not criminal. Police will suspend your license for one of two reasons:

  1. Testing over the legal limit (.08); or
  2. Refusing to take a test
If you refuse or fail a breath test, your license will be suspended immediately (see above). The length of the suspension depends on whether you refused or failed the test, and whether you have failed or refused previous tests (see above). For example, if you have no prior refusals or DUI / OVI convictions, your suspension for refusing is one year. But a failed test with no prior refusals or DUI / OVI convictions is 90 days.

13. How can I regain my ability to drive after receiving an Administrative License Suspension?

There are two ways:

  1. Requesting a Stay of Administrative License Suspension; or
  2. Requesting Limited Driving Privileges.
Your attorney will generally request that the judge issue a stay of your administrative license suspension at your initial court date (i.e. arraignment). If the judge stays your ALS suspension, you will have your driver's license back immediately without any driving restrictions or limitations. You will receive a certified copy of BMV Form 2261, which you can take directly to the BMV reinstatement office to have a replacement driver's license issued.
If you choose to request limited driving privileges instead of requesting a stay of the ALS, you will have to wait a designated period of time. The time you must wait before you are eligible for limiting driving privileges depends on whether you refused or failed the blood alcohol test, and whether you have failed or refused previous tests (see above). For example, if you have one prior refusal or conviction for DUI / OVI within the past 10 years and refused to submit to a breathalyzer test, you are eligible for limited driving privileges after 90 days. However, if you have one prior refusal or conviction for DUI / OVI within the past 10 years and failed to submit to a breathalyzer test, you are eligible for driving privileges after 45 days.

14. Can I appeal the Administrative License Suspension?

Yes. After you are arrested for DUI / OVI and fail or refuse to take a chemical test, you will receive a yellow copy of BMV Form 2255 and your license will be suspended. You have the right to appeal your suspension within 30 days of your initial court date (i.e. arraignment date). If you do not appeal in time, your right to appeal is waived.
There are a number of reasons for appealing an ALS, including the following:
The officer must:

  • List valid reason to stop and arrest you for DUI / OVI;
  • Request that you submit to a chemical test;
  • Read you the consequences of refusing or failing a test on the back of BMV Form 2255;
  • Let you refuse or take the test within 3 hours;
  • Find that you have refused or failed the test (above .08% limit);
  • Validly execute BMV Form 2255;
  • Check the box that says "Was placed under an Administrative License Suspension"
  • Make sure the form was sworn to and/or attested to properly;
  • File a valid / notarized form with the court or BMV within 48 hours; and
  • Give you a suspension hearing within 5 days;
You can also appeal if health problems (such as breathing, reflux, or veins) disrupt the test. This may be treated as a refusal, but this is an invalid reason for suspending your license. Furthermore, the officer cannot suspend your license after passing the blood alcohol test. He may choose to still charge you with DUI / OVI (because you may still be considered to have operating a vehicle while impaired), but issuing an ALS after passing the test is improper and should be appealed.
Overall, if the police break any of these rules, the suspension is invalid and should be appealed within 30 days of your initial court date.

15. How is a Court Ordered Suspension different from an Administrative License Suspension?

A Court Ordered Suspension is only issued by the judge if you are convicted of DUI / OVI, whereas an Administrative License Suspension is issued by the BMV after you have been charged with DUI / OVI because you either refused or failed a chemical test (breath, blood, or urine). Therefore, it is a from a judge, not the BMV. It also comes after you are convicted, not charged with DUI / OVI.

The Court Ordered Suspension is 6 months to 3 years. But the judge often gives you credit for the time of your ALS Suspension.

16. How to get your license back after suspension?

After your ALS Suspension or Court Ordered Suspension have expired, you must contact or visit the BMV to (1) pay a $475 reinstatement fee and (2) show proof of current insurance. If you are unsure of the end date of your license suspension, contact Ohio BMV at (614) 752-7600.

17. What happens at arraignment?

The arraignment is held before a judge. During the arraignment, the offense(s) filed against you will be explained . You will also be asked by the judge to enter a plea of guilty, not guilty, or no contest. Having an attorney at your arraignment is beneficial because your attorney can potentially stay your administrative license suspension (ALS), look into getting you limited driving privileges, negotiate a favorable bond for you, review the file for pleading defects, and otherwise get a feel about your case. If you have only spoken to an attorney before your arraignment date, explain this to the judge and enter a plea of not guilty in your case.