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I'm attorney Mark Gardner, and I work to ensure that my clients receive effective, results-driven representation through relentless investigation, meticulous trial preparation, and aggressive trial tactics. I have handled nearly all types of criminal cases, from the most serious felonies to misdemeanor offenses. Whether you are facing a serious felony or a misdemeanor, I am fully committed to defending your rights.

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FAQ - 10 DUI Questions

Cleveland Ohio DUI Defense Attorney

10 Questions about Drunk Driving and DUI Charges:

1.  Q: Do you have to be "drunk" to be guilty of drunk driving?

2.  Q: Legally, just what is "drunk driving" in Ohio?

3.  Q: What amount of alcohol do I need to drink to have a BAC of 0.080% or higher?

4.  Q: What reason does a police officer need in order to stop me to investigate whether or not I am DUI?

5.  Q: What happens to me if I am pulled over by the police for investigation of drunk driving?

6.  Q: What will happen if the officer who pulls me over suspects that I might be driving while under the influence of alcohol?

7.  Q: What happens when (not if) the officer believes that I have not performed the field sobriety tests satisfactorily?

8.  Q: What is an evidential alcohol test?

9.  Q: Should I agree to submit to an evidential alcohol test?

10.  Q: Can I represent myself? If not, how do I find a qualified DUI attorney?

1. Q: Do you have to be "drunk" to be guilty of drunk driving?

A: No. Years ago, a drunk driving charge meant someone was "drunk" in the way all of us commonly understand the word—intoxicated. But today, due to the extensive and often misguided lobbying pressures put on legislatures by groups such as MADD, SADD, and others, intoxication as we know it is not required for a person to be found guilty of drunk driving. Today's drunken driving laws mean that you can be convicted of drunk driving with considerably less alcohol in your system than what we customarily recognize as being enough to make a person be drunk. And, if you are convicted, you will suffer some very harsh penalties.

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2. Q: Legally, just what is "drunk driving" in Ohio?

A: Ohio's drunk driving offense, sometimes called Driving While Under the Influence (DUI), or Operating a Motor Vehicle while under the Influence (OMVI), or Driving While Intoxicated (DWI), has three general meanings:

  • Driving with any amount of alcohol in your system which causes your physical abilities and/or mental faculties to be impaired to an appreciable degree.

  • Driving with a level of alcohol or drugs/drug metabolite in your system which is above the prescribed legal limit. For alcohol breath tests (the most common type of test given) that amounts to a measurement equal to or above 0.80 grams per 210 liters of your breath. There are also prescribed level of alcohol in a person’s blood, blood-serum, blood-plasma and urine. There are also prescribed limits of the amount of illegal drugs and its accompanying metabolite that is allowed to be reported out in a person’s blood and/or urine. To be found guilty of these offenses, absolutely no impairment of any kind is necessary. You may well be the world's most talented, careful, and safest driver, but if your body registers at or above one of these prescribed levels, you are likely to be found guilty of a DUI.

  • Driving with "drugs of abuse" in your system or in combination with alcohol, regardless of the amounts of said substances, where your physical abilities have become appreciably impaired. If you are appreciably impaired as a result of taking the drugs of abuse, then you are guilty of a criminal offense.

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3. Q: What amount of alcohol do I need to drink to have a BAC of 0.080% or higher?

A: Each person's true BAC varies depending upon a number of factors. Some of these factors include: a person's weight, gender, amount of food in the stomach before and during the alcohol consumption, personal "Widmark" factor, degree of hydration/dehydration, body temperature, hematocrit level (the ratio of corpuscles to plasma in blood), as well as a number of other factors. However, the two most significant factors which will determine your BAC are: 1) the amount of alcohol you consumed within the applicable time period; and 2) your body weight. To get a rough approximation of what you BAC level really was, you can plug your particular information into the "Drink Wheel" or print off the below chart and calculate your true alcohol level.

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4. Q: What reason does a police officer need in order to stop me to investigate whether or not I am DUI?

A: The officer must have what is legally termed a "reasonable suspicion," based on something unusual that is actually observed regarding your driving behavior. According to the National Highway Traffic Safety Administration (NHTSA), the following is a list of symptoms, in descending order of probability, that police officers observe in drivers who are "drunk driving."

(1) Turning with a wide radius
(2) Straddling center lane marker
(3) "Appearing to be drunk"
(4) Almost striking object or vehicle
(5) Weaving
(6) Driving on other than designated highway
(7) Swerving
(8) Driving more than 10 mph below limit
(9) Stopping without cause in traffic lane
(10) Following too closely
(11) Drifting
(12) Tires on center or lane marker
(13) Braking erratically
(14) Driving into opposing or crossing traffic
(15) Signaling inconsistent with driving actions
(16) Slow response to traffic signals
(17) Stopping inappropriately (other than in lane)
(18) Turning abruptly or illegally
(19) Accelerating or decelerating rapidly
(20) Headlights off

The officer need not observe any indications of poor driving to pull you over. A burnt out license plate light or headlight is sufficient legal justification to pull you over.

Additionally, it is becoming more common for police officers to set up roadblocks or "checkpoints" where they routinely stop every driver who passes through the roadblock. These roadblocks do not require the officer to observe anything suspicious about a person before stopping and investigating someone.

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5. Q: What happens to me if I am pulled over by the police for investigation of drunk driving?

A: During the stopping sequence, the officer will be observing your driving behavior for anything unusual: attempting to flee; responding slowly or failing to respond to the stop command; swerving abruptly; stopping suddenly or striking the curb or another object when pulling over.

When you are pulled over, immediately retrieve your driver's license, proof of insurance and vehicle registration before the officer walks up to your window and asks for those documents. If the officer witnesses you fumbling for these documents (due to your nervousness), he will undoubtedly attribute these actions to intoxication rather than stress. Avoid this possibility by having everything ready at hand. Also, do not take off your safety belt until after you first speak to with the officer.

Understand that the officer's goal in every DUI-suspect vehicle stop is to collect evidence. He will be using his senses of sight, hearing and smell to collect/create evidence against you.

(1) SIGHT (things the officer is looking for)

(A) Bloodshot eyes

(B) Soiled clothing

(C) Fumbling fingers

(D) Alcohol containers

(E) Drugs or drug paraphernalia

(F) Bruises, bumps or scratches

(2) SOUND (things the officer is listening for)

(A) Slurred speech

(B) Inconsistent responses

(C) Abusive language

(D) Admissions of alcohol consumption or intoxication

(E) Unusual statements

(3) SMELL (things the officer is sniffing for)

(A) Alcoholic beverages

(B) Marijuana

(C) "Cover up" odors like breath sprays, chewing gum or smoke

(D) Unusual odors

Remember; always be courteous and cooperative with the officer. Never argue or debate anything with him; you will inevitably lose. And most importantly, never lie about anything. In other words, do not deny consuming alcohol if in fact you have had some to drink. Doing so, 1) is a crime; 2) destroys your credibility and 3) cheapens you as a human being!

Rather than lying, you have three options. First, tell the truth. If the truth is that you consumed two beers over the past 3 hours, that kind of an admission will not hurt you. Of course, if the truth does hurt, consider one of the following two choices. Second, remain silent. What you do not say will not be held against you. Finally, ask a question in response to the officer's question (e.g., Officer: "How much have you had to drink tonight?" You: "Have I done something wrong officer?" or "Am I under arrest? "). Asking a question is neither a lie nor an admission. However, do not ask a belligerent question such as: "Officer, how much have you had to drink?" That would be very foolish indeed.

Understand that you are not required to answer potentially incriminating questions, such as how much you have had to drink or where you are coming from. If you feel the officer's questions starting to become overbearing or his tone/behavior begins to scare you, politely state "I would like to speak with an attorney before I answer any further questions." And remember, from that point on, remain totally silent to every question the officer asks of you.

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6. Q: What will happen if the officer who pulls me over suspects that I might be driving while under the influence of alcohol?

A: First, the officer will ask you to exit your car. At this point, the officer will be paying close attention to your actions and behavior during the exit sequence which will, in his mind, provide positive evidence of your alcohol intoxication. Specifically, the officer will be observing:

(1) If you cannot follow instructions;

(2) If you cannot open the door easily;

(3) If you leave the vehicle in gear;

(4) If you "climb" out of vehicle;

(5) If you lean against vehicle; or

(6) If you keep your hands on the vehicle for balance.

After you have exited your vehicle, the officer will then instruct you to perform a series of "field sobriety tests." These "tests" often include a combination of the following:

(1) Reciting the alphabet from F to R (or some other variation);

(2) Walking along a straight line in a heel-touching-toe fashion;

(3) Standing on one foot for approximately 30 seconds;

(4) Picking up coins dropped on the ground;

(5) Palm-Patting;

(6) Finger Counting;

(7) Examining the "jerkiness" of your eyes by having them follow a pen; or

(8) Closing your eyes, leaning your head back and bringing your index fingers to the tip of your nose.

In addition to these "tests," some officers use a device known as a portable alcohol breath test meter (PBT). This type of breath testing machine is non-evidential, meaning the result obtained from it is unreliable and it cannot be used against you in your trial.

It is very important to understand that Ohio law does not require you to perform any of these roadside "tests," nor can there be consequences for declining to perform them. Remember, these acts are entirely voluntary. In fact, it is a very good idea for you to politely decline to submit to the offered "tests" since by the time the officer has asked you to submit to his tests, he more likely than not has already determined to arrest you for DUI. He is merely attempting to "create" evidence to use against you at your trial

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7. Q: What happens when (not if) the officer believes that I have not performed the field sobriety tests satisfactorily?

A: At that point you will be told that you are under arrest for driving under the influence. You will be handcuffed, physically searched for weapons, placed in the back of the officer's car and taken to a jail for an evidential breath test. At the jail you will be booked and held there until you post bail or until a judge releases you on your own recognizance without bail.

Ohio law is quite explicit in regard to a person's right to communicate with an attorney upon being arrested.

"After the arrest, detention, or any other taking into custody of a person, with or without warrant, such person shall be permitted forthwith facilities to communicate with an attorney at law of his choice who is entitled to practice in the courts of this state, or to communicate with any other person of his choice for the purpose of obtaining counsel. Such communication may be made by a reasonable number of telephone calls or in any other reasonable manner. Such person shall have the right to be visited immediately by an attorney at law so obtained who is entitled to practice in the courts of this state, and to consult with him privately. No officer or other agent of this state shall prevent, attempt to prevent, or advise such person against the communication, visit, or consultation provided for by this section.

Whoever violates this section shall be fined not less than twenty-five nor more than one hundred dollars or imprisoned not more than thirty days, or both." R.C. §2935.20.

In spite of this clear mandatory language, the Ohio Supreme Court has decreed that a person arrested for DUI does not have the right to consult with counsel for the purpose of making an informed decision before being forced to decide whether or not to submit to the evidential breath test. However, many police departments still provide you with that opportunity.

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8. Q: What is an evidential alcohol test?

A: This is a physical procedure to determine how much alcohol you actually have in your body. The result of this procedure, if performed correctly, will be admitted as evidence in your trial on drunk driving charges. There are generally three ways of administering this test:

(1) Drawing a sample of blood from your arm;

(2) Obtaining a urine sample; and/or

(3) Obtaining a breath sample by having you blow into one of the following;

(A) BAC Datamaster machine (www.npas.com);

(B) Intoxilyzer 5000 machine (www.alcoholtest.com)

In Ohio, as opposed to most States, you do not have the choice of which one of these three tests (blood, breath or urine) you will take. The officer gets to pick the test(s) he offers you. The only choice you get to make is to agree to submit to the test or refuse the test.

Additionally, in violation of the most basic scientific principles, Ohio gives you only a single breath test. If the machine was malfunctioning at the time of your breath test, if radio frequency interference unjustly elevated the result of your test, if alcohol residue trapped in your mouth or esophagus wrongly elevated your test result, you have no conclusive way of proving an error. Only if you were given a second breath test for the express purpose of confirming or impeaching the first test would anybody be able to comment on the validity of the first test's result. Ohio is one of a handful of states that cares so little about the truth and the fundamental rights of its citizens that it does not require a second confirmatory test.

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9. Q: Should I agree to submit to an evidential alcohol test?

A: Because the Ohio Supreme Court has refused to enforce your right to make an informed decision by first talking with an attorney, you will have to decide this matter by yourself while at the station looking at the breath machine (unless the police permit you to telephone an attorney first).

The answer is—it depends. As mentioned above (#3), each person's alcohol content will vary depending primarily on 1) personal biological factors (weight, gender, body temperature, etc.), 2) the amount of alcohol consumed and 3) the time period over which the alcohol was consumed. Factor into this equation your absolute need to operate a motor vehicle. Now look at the chart provided in Answer #3.

If you test over the legal limit (.080% BAC or above) or refuse to submit to the requested evidential alcohol test, you will lose your license on the spot. This is commonly known as the Administrative License Suspension (ALS).

The length of your ALS depends on a number of factors. The first factor is whether you tested over the legal limit or refused to submit to the test. The second factor is the number of previous DUI convictions you have had within the past 6 years or the number of times you have previously refused to submit to an evidential alcohol test within the past 6 years. The lengths of the suspensions are as follows:

You must understand the above suspensions periods are civil in nature and will be administered against you in addition to the criminal DUI charges that you are facing.

On the other hand, if you test under the legal limit, you will not be subject to the ALS, but you may still have your driver's license suspended under a court imposed "public safety" suspension. R.C. §4511.196. Moreover, testing below the legal limit does not guarantee you will avoid a DUI ticket. The officer may charge you with an appreciable DUI.

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10. Q: Can I represent myself? If not, how do I find a qualified DUI attorney?

A: Yes, you have a constitutional right to defend yourself, although to do so is ill advised. "Drunk driving" is one of the most difficult areas of the law to understand, involving complex issues of criminal procedure, evidence, constitutional law, administrative law and forensic science. For this reason, most general practice lawyers, let alone non-lawyers, either stay away from defending DUIs or just simply plead out their DUI clients without conducting a thorough and comprehensive investigation, an incomplete investigation or never even understanding what they need to investigate.

The best way to find a good DUI lawyer is by reputation. Thus, the best approach is to ask other attorneys in your local area: Who are the best DUI attorneys in the area? If you don't know any attorneys, go to the local courthouse and ask people like bailiffs, clerks and public defenders who THEY would go to if arrested for drunk driving. Also, call the Ohio Association of Criminal Defense Lawyers for an attorney referral (Executive Director Susan Carr at 800-443-2626).

An excellent indication of quality and experience for a DUI defense attorney is a Certificate of Achievement from the National College for DUI Defense, held at the Harvard Law School. Additionally, has the attorney you are considering retaining received both Student and Instructor certification in the NHTSA's "Standardized Field Sobriety Testing." This is the same course that police officers go through. Finally, check to make sure the attorney you are considering retaining has been through a breath alcohol machine's manufacturer's certified course.

When you meet with the attorney, make sure of three things:

(1) He has extensive experience in DUI litigation;

(2) He has a reputation for going to trial in appropriate cases rather than just "copping out" his clients for a quick and easy fee; and

(3) The financial terms of the legal representation are clear.

I hope I have answered some of the more pressing questions you had concerning Ohio's DUI law.

If you have any further questions, please feel free (it is free) to give me a call at 216.857.3K and I’ll be happy to answer any further questions you may have.

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Law Office of Mark Gardner

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Cleveland, OH 44114

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