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First and foremost, folks who are stopped are required to cooperate with the officer if they are asked to exit the vehicle. Sometimes they think they don’t have to, which could be considered obstruction if you remain in your vehicle. So if the officer does ask you to get out of the vehicle, do that. Just make sure that you tell them that you’re not doing any tests. When it comes to questions, they ask you your name or identifying information, you do have to provide them with that, including your driver’s license and proof of insurance, but if they start asking you questions concerning where were you coming from and if you had any alcohol, you do not have to answer those questions. I recommend you not answer them and instead tell them that you want to speak with an attorney first.
After you’ve been arrested for the OVI, that’s when they offer you a breath or other chemical tests. My feeling is if it’s an alcohol-related OVI and you’ve consumed alcohol, and you’re not sure if you’re going to be over or not, do not take the breath test. But, again, you’re already arrested, so the officer’s not going to reverse it if you blew under, especially if you’re not sure if you’re going to. However, beating an OVI case is much more difficult if you have a breath test because then not only do I have to beat an opinion, but I have to beat a number because they’ll charge you under the per se amount, and the number is much more difficult to beat than an opinion.
Most of the time, I will tell a client not to take a breath test. If you have not had any alcohol to drink whatsoever or if you’re incredibly confident that you’re going to be under the 0.08 that Ohio has for their limit, then I say take the breath test because at least at that point, you will not be placed under a license suspension. You’ll still be arrested for the OVI even if you test under. Still, those cases are much more defendable than cases where you test over, so the only time that I recommend that you take a breath test is if you haven’t had any alcohol whatsoever or you’re positive that you will not test over the per se limit, which is incredibly difficult to try to figure out.
When it comes to blood or urine test for drug impairment, never take those tests because it’s so hard to tell how long certain prescription drugs or marijuana will stay in your system. For example, marijuana metabolites can remain in your system for 30 days or more, and the per se limit on marijuana is 35 Nanograms. So anybody who routinely smokes marijuana or smoked marijuana in the last 30 days probably has more than 35 Nanograms in their system, and, in my and an expert’s opinion, you’re not impaired. Still, unfortunately, that’s a per se limit. So even if you’re not impaired and over that limit, it’s still an OVI.
As far as consequences, if it’s a first-time offense and you refuse to take a chemical test, you’re given a one-year driver’s license suspension, and you’re not eligible to request driving privileges for 30 days. On the other hand, if you take a chemical test and you fail that chemical test, you have a 90-day suspension, and you’re eligible for driving privileges after 15 days. Now, that’s what the officers will tell you when you go to take the test. However, they do not tell you if you’re convicted of an OVI at a future date that 90-day suspension for the failed chemical test becomes a one-year license suspension because the OVI penalties require that you have a one-year license suspension upon conviction of an OVI. So at the end of the day, whether you take a test or you refuse to take a test, your suspension’s going to be the same in all likelihood.
I wouldn’t disclose any information about prescription drugs to officers. But, suppose the officer thinks you’re under the influence. If you do admit to taking prescription drugs, the office might assume you took too much medication or that the medications should not be taken if you are going to drive. So, it’s always best not to say anything and ensure they know you would like to speak to your attorney before any questions are answered.
When folks are stopped, they want to be as polite and cooperative with police officers as they can be. And so officers generally, for the most part, are very courteous towards a potential client too. So even though you’re nervous, the officer’s trying to be as friendly as possible to get as much information out of you as possible. So That is why I always tell my clients that rather than being disrespectful or uncooperative, to inform the officer of their relationship with an attorney, and they will be politely declining any questions.
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