You Don’t Have to be a Monkey

Photo of Stephen E. Palmer

We’ve discussed before the various forms of OVI cases in Ohio. But here’s a quick refresher. There are two general types—impaired and per se. An impaired offense means just that. The prosecutor has to prove that the driver was impaired. A per se offense results when someone has a blood, breath, or urine test above the limit. In a case where someone refuses, we usually see an impaired offense. When someone takes the test and posts a result above the limit, we see both an impaired and a per se offense.

We’ve also discussed before the debate about the blood, breath, or urine test–when to take the chemical test and when to refuse the chemical test. The easiest advice is to try to call an attorney before making the decision. But barring that, don’t take the test on a first offense if you think you will fail. You can refuse, and don’t let any of the other clutter convince you otherwise.

What about field sobriety tests? Volumes can be written on this topic. And this will not be my last comment on the subject. But let’s cover some basics.

First and foremost, you don’t have to take field sobriety tests in Ohio. Generally speaking, everyone has the right to refuse field sobriety testing. Of all the things we discuss with our clients, this information surprises the most people. Folks just aren’t aware that they have a right to refuse field sobriety testing. The police don’t tell you at the scene of the stop. And most debates center on the chemical test. Everyone just assumes that they had to take the field tests.

But field sobriety testing is just as important (and perhaps more important) than chemical tests. The police rely on the results of these tests when making critical decisions about the case. And later on, when we get to court, the results of these tests can make or break a case.

Think of it from the standpoint of evidence. Field test results often provide evidence of guilt. Poor performance on these tests.