What Police Look for in an OVI
(PSA - First of all, take an Uber or Lyft when in doubt. Most judges will tell you that an Uber or Lyft would have been cheaper than receiving an OVI charge and going to court. Even if the Uber smells of vomit because of the last person in there, it still beats an OVI charge.)
Operating a Vehicle While Intoxicated is a serious charge in the State of Ohio and carries mandatory jail time and a mandatory fine if convicted, depending on how may priors a person has. There are very few convictions in Ohio that require a judge to sentence a person to jail. Not even misdemeanor charges like domestic violence and assault require a jail sentence by law. OVI's are serious charges that can carry serious consequences.
When police pull over a person that they suspect to be drunk, an officer is permitted to observe every action a person makes in order to confirm that suspicion. If an officer has tunnel vision and firmly believes you are drunk, nothing will convince them otherwise. The best thing a person can do is not give the officer any observations of intoxication. Most evidence in an OVI stop is not scientific. It is mostly based on the opinion of an officer who may or may not have been trained extensively on OVI stops in the past. Officers are trained to conduct field sobriety test in conformity with NHTSA standards, but officers do not always conduct their tests in conformity with these standards. The only arguably scientific portion of the OVI is the breath test. Even then, it must be calibrated to be in good working order and the operator must understand how to use the breathalyzer.
Plenty Can Be Used Against You
Officers can turn almost anything into a sign of intoxication. Fast speech means you are drunk and trying to cover it up. Slow speech means you are drunk and deliberately concentrating on talking slowly to cover up your drunkenness. Being nervous means you are drunk, because people are never nervous when being pulled over for a traffic infraction. Being totally calm means you are drunk and trying to cover it up. Bad driving means you are drunk and can’t keep control of your car. Driving at 10-and-2 could mean you are drunk and overcorrecting your driving only to avoid detection. The saying that “anything can be used against you” is true. It does not mean it will, but it certainly can. Here are some things that officers typically use to justify a drunk driving charge.
Typical Signs of Impairment
1.Officers regularly look for slurred speech, talking can be a clue used against a person. Officers are not supposed to continue questioning a person about the potential crime once a person demands an attorney as it is a constitutional right to have an attorney present during police questioning. Sometimes officers will say you don’t need an attorney or ask if you are sure or say it’s just a couple tests. This is because it has the potential to cut off their investigatory capabilities. Even if the officer has no idea what a person normally sounds like, an officer can and will say that speech is slurred. Some officers say that they do not put much stock into slurred speech since they have no indication as to what the person normally sounds like. That is a perfectly reasonable position for an officer to have, however they are permitted to use slurred speech in their investigation.
2. Officers look for fumbling of wallet, keys, or insurance as a sign of intoxication. It does not matter if this occurred in the dark, or if there is a flashlight shining straight into a person's eyes, or that an authority figure with a gun strapped to their waist is asking a person questions in an accusatory manner. If someone fumbles any item such as identification or insurance during a suspected OVI stop, the officer can and will say it is because a person is under the influence.
3. Strong smell of alcohol is almost always included in police reports. This is a clue that cannot be disputed on bodycam or through evidence. Officers are usually careful to say the "smell of an odor of an alcoholic beverage" since pure alcohol is actually odorless. However, they cannot say how much alcohol was consumed, when it was consumed, or even what kind of alcohol was consumed. This clue can be used by the police as reasonable suspicion of drunk driving and to conduct further tests.
4. Bloodshot glassy eyes will be noted on almost every OVI stop. It does not matter if the person has worked a 16-hour shift and it is 3am, this will always be considered an indicator of intoxication if eyes are red. Never mind the fact that eyes are naturally watery and glassy on their own, this will be used against the accused.
5. "Unsteady on their feet" is another clue that will be used against a person. It will not matter if that person has arthritis, an injured back, or a disability. This clue will be used against a person if they do the tests. Sober people apparently never clumsily leave a car or fail to keep their balance. So if a person makes that mistake, the officer will assume it is due to intoxication.
6. Admission to drinking is a surefire way to arouse the suspicion of the officer. If a person admits to drinking, even if it is one beer 8 hours earlier, this will arouse suspicion of intoxication and be used against them. This is a tough clue to get around since the accused is the person who stated it.
7. The portable breath test is almost always offered to a person suspected of drinking and driving. If a person has literally had no drinks, then this test should exonerate someone if they are dealing with an officer who is trying to make sure you are safe to drive. If you have an officer with tunnel vision, a reading of .00 will not deter them from finding something else to arrest you for. Officers have asked for a urine test after a .00 reading on the portable breath test. There must be something this person is guilty of since they have been pulled over, the officer just needs to ask for more urine or blood in order to prove it. The portable breath test only detects alcohol on the breath, it cannot detect marijuana, cocaine, or any other controlled substance. The portable breath test is also not admissible in court, it is primarily used as the basis for the admissible breath test that is done at the police station.
This is not an exhaustive list, as many things can be potentially used against a person. There are times when what happens on the bodycam is different from the officer's rendition of the facts. You will need an experienced criminal defense attorney in order to defend against serious allegations like OVI. This is not legal advice either, it is merely legal information. Every case is different. If you have a case and need to talk to an attorney in Toledo or the surrounding areas, please call Brian C. Morrissey, Attorney at Law at 419-830-7441 for a free consultation.