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For a per se case, all they have to do is prove that you’re over the legal limit, and that’s why I said don’t take these breath tests or chemical tests. For the opinion-based OVI, the 451119(A)1(a), they have to prove beyond a reasonable doubt that you were impaired by whatever amount of alcohol you had in your system. That is a much more difficult charge to prove, especially if you’re stopped for something like speeding or an equipment violation. Suppose you refused to take field sobriety tests. In that case, I think they have a significant challenge in trying to overcome that because they can’t show impairment. They have to show that your ability to drive a vehicle was impaired or that you have dexterity issues, or that your physical abilities are impaired somehow. Without field sobriety tests, they’re not going to be able to show your physical abilities are impaired.
Accidents and major marked lane violations are different, and then their case is much, much more challenging. Now, even for those cases, though, there are reasons that they call them accidents. People have accidents all the time, and people make marked lanes violations all the time, but it’s just one thing that a prosecutor will hang their hat on. But again, we need to find reasons why the person was either involved in the accident, or the marked lane’s violation occurred.
I believe the biggest one is that there is no evidence whatsoever of impairment. It’s not illegal to drink and drive; it’s illegal to drive while impaired. So, the prosecution needs some proof of impairment. Other possible defenses are they didn’t have grounds to stop you.
More often than not, a client will have some defenses, especially if you refuse to take a chemical test. If you take a chemical test, that’s a little more difficult because you must show why that machine was wrong in its analysis. Often, that requires that you hire an expert witness to analyze the device and determine whether there are issues with it, and that does happen more often than people know. I’ve had cases where we’ve hired expert witnesses, and in one case, a person was an engineer. He worked with cleaning chemicals. He automatically had a higher rating because of the substances he worked with and him breathing them in even though it wasn’t ethyl alcohol. So expert witnesses can help you out in cases of a breath test.
Also, I think videos help out in defending a case. If you just read their narrative, you would think that it was the most significant case in a world for the prosecution, and then you look at the video, which ends up being lackluster. That’s why I prefer fighting an A1a case versus a per se case because opinions can be attacked, especially with specific evidence such as videos or lack of particular notes or things that they may or may not have in their police reports. In a plausible defense, the best thing to do is to have disputable evidence that can be either shown by inconsistencies in the officer’s testimony and inconsistencies in what the videos show and what their notes show.
For first-time offenders, quite frankly, it’s not uncommon for them to offer a reduction, as long as there are not any egregious facts or a high breath test. In Ohio, there is not a lesser included defense to OVI. So you’re either convicted of an OVI, or there’s nothing less than an OVI under the OVI statute. So essentially, prosecutors and defense attorneys have created what’s known as a reckless operation, a misdemeanor of the 4th degree most of the time. Essentially, that is their way of offering a reduction. A reckless is a non-OVI offense, which is why your defense attorneys like it because it keeps an OVI conviction off your record, which is incredibly important for enhancement purposes.
They’ve created the reckless operation or wet reckless as a way of offering a plea negotiation to a client who is being charged with an OVI. They may also offer a first-time offender what’s known as physical control. Now, physical control shows up under the statute as being under the physical control of a motor vehicle while impaired. So it’s still an alcohol-related offense, but it is a non-moving alcohol-related offense. Sometimes it’s beneficial to a client to get physical control versus a reckless op.
When it comes to repeat offenders, if you have a prior conviction, to be quite honest with you, it’s challenging to get prosecutors to plea deals when it comes to non-OVI offenses. I can provide you with a chart that shows the penalties but say, for instance, it was a second OVI in ten years, and it’s a refusal. The penalties are different for a second OVI refusal versus the second OVI A1A charge. Sometimes they’ll reduce it to treat it as if it were an A1A charge versus a refusal.
Most of the time, when it comes to plea negotiations, they do not offer non-OVI offenses for people who have prior convictions unless there’s something egregious about the first offense, such as a high breath test or an accident; they’ll generally offer you something like a reckless op.
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