DUI FAQs

When can the police stop me to see if I am operating a vehicle under the influence?

Police encounters with a drunk driving suspect typically involve two stages prior to arrest: (a) a traffic stop, and (b) an investigative detention following the stop.  With respect to the traffic stop, if the police officer observed you commit a traffic violation, then he may stop you for that violation, even if it is a pretext to investigate a drunk driving charge.  However, although the initial stop may be valid, a further detention may not be constitutionally justified.  In general, the duration of the initial stop is limited to the time necessary to effectuate the purpose of the initial traffic stop, including the time necessary to run a computer check on your license, registration and plates.  The stop may not continue longer unless additional facts are encountered that give rise to reasonable, articulable suspicion of criminal activity beyond that which caused the initial stop.  It is critical for you to have an experienced defense attorney who can challenge the basis for the initial stop, the duration and scope of the detention following the stop, and whether there was probable cause for the arrest.  If there was not probable cause for the arrest, then any subsequent alcohol test results are inadmissible.

What factors can a police officer consider in determining whether to make a DUI arrest?

The single most important factor that influences whether an officer will make a DUI arrest are the results of Standardized Field Sobriety Tests (SFSTs) administered to you.  Ohio recognizes 3 SFSTs:  1) the Horizontal Gaze Nystagmus (HGN); 2) the Walk and Turn (WAT); and 3) the One Leg Stand (OLS).  Officers are trained that if they do not administer these tests in strict compliance with the manual, the tests are definitely not reliable.  Ohio law, even though the training requires strict compliance, allows these tests to be admitted against you if the officer “substantially” complied with the training.  Because “substantial compliance” is a lesser standard than “strict compliance” it is critical that you have an OVI defense attorney who has the experience and training to look for every flaw in the officer’s administration of the SFSTs.

Some lawyers believe there are other, non-legal factors that can influence whether a police officer will make an arrest.  These include: (1) the officer’s age and experience (many believe that younger officers are more likely to make the arrest than not); (2) the officer’s personal use of alcohol (many believe that the less an officer drinks the more likely he is to make a DUI arrest); (3) specialized training in the SFSTs and assigned to patrol for DUI  (specialization in duty assignment — those assigned to traffic beat or night detail — are more likely to make an arrest, although being near the end of the duty shift makes it less likely for the arrest to be made due to the extra time and work involved in making the arrest and report); (4) the person’s cooperation and attitude often contributes to whether or not there is an arrest; (5) the person’s race may have an impact as officers seem to arrest more when the person the more likely the arrest; and (7) the person’s sex plays a role in the officer’s decision about whether to make an arrest in that females are less likely to be arrested that males.

What if there was an accident?

If there was an accident involved, that alone is sufficient to merit harsher penalties in most courts, particularly if there was an injury involved.  If you leave the scene of an accident prematurely, you could also be charged with “failure to stop” which is a serious Ohio traffic violation.  If the accident involved resulted in serious drunk driving accident with injury, then the “failure to stop” can be charged as a felony.

Will my case be charged as a misdemeanor or a felony?

First time drunk driving cases are charged as misdemeanors (punishable by a maximum of 180 days in jail).  Factors that elevate DUI charges to felony level (which would expose you to incarceration in a state prison) are if the charge is either a 4th or 5th offense within 6 years, or a 6th offense within 20 years.  A high alcohol level by itself will not warrant felony charges being filed.

What if no one saw me actually driving?

To be convicted of drunk driving in Ohio, the State must prove beyond a reasonable doubt that you “operated” a vehicle under the influence, or with a prohibited level, of alcohol or a drug of abuse.  Under Ohio law “driving” is not the same as “operating.”  In other words, you can operate a car without actually driving it.  “Operate” is defined in Ohio as “to cause or have caused movement of a vehicle….”  R.C. 4511.01(HHH).  A question sometimes arises as to how much movement is necessary.  The Ohio Supreme Court recently ruled in a case where a person was discovered slumped over the steering wheel of a car at a stop sign on a highway exist ramp with the engine running, that because the engine was running there was sufficient evidence to prove “operation.”  As a practical matter, however, observation of your driving pattern is an important piece of evidence that the prosecution will want not only to prove “operation,” but also to prove that the operation occurred while you were “under in the influence.”  Although the lack of observing you driving the car does not automatically spell dismissal of the case, it can certainly weaken the state’s ability to prove your guilt.  In some situations, such as the officer coming upon a disabled vehicle or someone just sleeping in the car, the officer’s first investigative task is to determine if the vehicle was recently operated and who drove it.  Driving, and who was driving, can be shown by circumstantial as well as direct evidence.  Some of the indicia of recent driving include a hood feeling warm to the touch, the location of the vehicle, statements by you or witnesses.  It is easy to see why it can be important for you to not volunteer information.  So, while lack of the observation of you driving can weaken a case for the prosecution, and in some cases prevent a prosecution, the importance should be analyzed on a case-by-case basis.

If an officer asks me whether I have had anything to drink, what should I say?

If you have been drinking, then do not deny it. . The police will probably have already smelled the odor of an alcoholic beverage on your breath so if you deny drinking, it will only label you a liar in the officer’s mind.  If the odor is coming from the car itself or your clothes then by all means explain what had happened (spilled drink, etc), but if the odor is from your breath, then saying you had a few drinks does not serve as an admission that you are drunk and will help to explain the odor on your breath.  Importantly, do not lie.  If you cannot honestly tell the truth without incriminating yourself, then you should respectfully decline to answer any questions about your drinking.  You should be aware that it is a crime in Ohio to knowingly make a false statement for the purpose of misleading a law enforcement officer.  R.C. 2921.13(A)(3).

What do police officers look for when attempting to detect drunk driving?

The National Highway Traffic Safety Administration (NHTSA), part of the Department of Transportation, has produced a guide developed during 3 field studies involving hundreds of police officers and more than 12,000 traffic stops, which is entitled “The Visual Detection of DWI Motorists.”  This was developed for use by police officers to detect drunk drivers, and most patrol officers have been trained by NHTSA regarding this guide.  The guide lists 24 driving behaviors regarded as “cues” for police officers to look for when determining whether make a traffic stop to investigate possible drunk driving.  The driving cues are divided into 4 categories:  1) Problems in maintaining proper lane position; 2) Speed and braking problems; 3) Vigilance problems; and 4) Judgment problems.  The NHTSA guide claims that the cues presented in these categories predict that a driver in under the influence at least 35% of the time.  It also claims that if an officer observes any of the weaving cues and any of the other listed cues, then the probability of driving under the influence jumps to at least 60%.  The 24 cues are listed below:

Problems Maintaining Proper Lane Position

  • Almost striking a vehicle or other object
  • Turning with a wide radius
  •  Drifting
  • Weaving
  • Weaving across lane lines
  • Straddlng a lane line
  • Swerving

Speed and Braking Problems

  • Slow speed (10+ mph under the limit)
  • Varying Speed
  • Accelerating or decelerating for no apparent reason
  • Stopping problems (too far, too short, or too jerky)

Vigilance Problems

  • Failure to signal or signal inconsistent with action
  • Driving without headlights at night
  • Stopping in lane for no apparent reason
  • Slow or failure to respond to police officer’s signals
  • Driving in opposing lanes or wrong way on one-way street
  • Slow response to traffic signals

Judgment Problems

  • Following too closely
  • Improper or unsafe lane change
  • Illegal or improper turn (too fast, jerky, or sharp)
  • Driving on other than the designated roadway
  • Stopping inappropriately in response to officer
  • Inappropriate or unusual behavior (such as throwing items out of the car)
  • Appearing to be impaired (by gripping the wheel too tight, or driving too close to the windshield)

What do the police look for after they pull someone over for a traffic stop?

Police reports show that the most commonly observed characteristics of someone under the influence are: 1) the odor of alcohol, 2) bloodshot eyes, and 3) slurred speech.  These are the “big 3” observations that the typical police officer reports seeing while making a drunk driving arrest.  Many dui defense attorneys believe that officers will report seeing the “big 3” out of habit regardless of whether they are actually observed.  In truth, science shows that the odor of alcohol smells exactly the same, regardless of whether a person had 1 drink or 10 drinks.  Also, there is absolutely no scientific evidence linking intoxication to bloodshot eyes.

Post-stop indications of intoxication taught to law enforcement officers are:

  • Difficulty exiting the vehicle
  • Swaying, unstable, unsteady, or having problems with balance (such as leaning on the car)
  • Fumbling with wallet to retrieve driver’s license
  • Red, watery, glassy and/or bloodshot eyes
  • Odor of alcohol from the driver’s breath
  • Slurred speech
  • Inability to understand the officer’s questions
  • Repeating questions or comments
  • Providing incorrect information or changing answers to the officer’s questions
  • Disorientation as to time and place

When the police officer asks, should I perform any of the Standardized Field Sobriety Tests (SFSTs) that the officer will ask me to do?

No.  The police will never tell you this, but you are not required to take any of the SFSTs.  The simple truth is this:  the SFSTs are only used to make the police case against you stronger.  The tests are extremely hard to perform.  In some cases a ballerina would have difficulty passing them.  You may think you are doing well but when you finally see the police report you will normally find the police failed you on each test, and often for extremely technical reasons that have nothing to do with whether you were intoxicated.  The best course of action is to be polite but to tell the officer that you’ve been advised by your attorney, to refuse the SFSTs.

If you do decide to take the SFSTs, you should be aware that there are about 20 different balance and coordination tests that some officers will use.  These tests range from the ones most people are aware of (walk the line, touch your nose, recite the alphabet), to more obscure tests such as stand on one leg, hand pat, and finger count.  However, there are only 3 SFSTs that have been approved by the National Highway Traffic Safety Administration: One leg stand, Walk the line (heel to toe), and Horizontal Gaze Nystagmus.

The nystagmus test is particularly dangerous both because it lacks a meaningful scientific basis and because it is difficult to administer.  The officer will ask you to follow a penlight, tip of a pencil or even the tip of his or her finger as the “target” is moved slowly from in a horizontal (left to right) line, you must keep your head still.  The officer will try to estimate the angle at which he or she observes an involuntary bouncing or jerking of the eye as it tracks the target.  If the bouncing or jerking is observed prior to 45 degrees it supposedly indicates a blood alcohol level of .05% (or greater BA the sooner it is observed).  Even in the cases where it is properly administered, the scientific literature shows there are numerous situations in which it has no merit.

Why was I asked to blow into a portable breath device after the police pulled my car over, but then, after my arrest, was again asked to take another alcohol test at the police station?

More police agencies are following the lead of the Ohio State Highway Patrol and using Preliminary Alcohol Screening Devices (PAS) as a final pre-arrest test, given after administration of the SFSTs, in order to obtain a breath alcohol sample on the street before the “official” test given at a later time.

The machine is not scientifically reliable, and the results are inadmissible it court. The test cannot even be used by the police officer to determine whether there is probable cause for them to make an arrest. Although the test is inadmissible in court, the police will often ask you to take the test as part of an interrogation technique. For example, if you say refuse the test, then they will ask you why not; or if you fail the test, then they will use the results to challenge what you have previously told them.

Finally, if you pass the test, they will not tell you the test results since they are inadmissible anyway. You are never required to take the PAS, and you can therefore refuse it just like the SFST without fear of additional penalties. As a general rule, unless you have had absolutely nothing to drink, you should refuse to take the PAS.

Will my DUI case be charged as a misdemeanor or a felony?

First time drunk driving cases are charged as misdemeanors (punishable by a maximum of 180 days in jail). Factors that elevate DUI charges to felony level (which would expose you to incarceration in a state prison) are if the charge is either a 4th or 5th offense within 6 years, or a 6th offense within 20 years. A high alcohol level by itself will not warrant felony charges being filed.

Who Should You Call If You’re Arrested?

After a person is arrested for drunk driving or OVI/DUI in Columbus, the arresting officer will often give the person an opportunity to call a friend or relative for a ride home.  Even though these calls are usually made late at night or in the early morning hours, it’s usually not a problem to find someone willing to make the trip to the police department.  But what if the person you called has been out all night drinking and having a good time?

Make sure your driver is sober or call a taxi.  Inviting an intoxicated friend or relative to the police department has trouble written all over it.  The other lessons may not be so obvious, but are just as important:  when questioned by law enforcement it is usually in your best interest to exercise your right to remain silent and to request the assistance of lawyer before answering questions, taking field sobriety tests, or consenting to a chemical test.

If you’ve been arrested for OVI/DUI in the Columbus area, contact our lawyers at (614) 454-5010.  We’re available 24 hours a day, every day of the year.