I was recently surprised to find out I can get an OVI conviction with .069 BAC. I was in an unfamiliar area and was setting up a GPS at a stop light. I proceeded to go straight in a right turn only which got me a legit stop. I did poorly on the SFST's and refused the portable test, but the Intoxilyzer 8000 got me anyway. I was polite and cooperative with my arresting officer and he said that 9/10 in my situation get a reduction to reckless operation. With the above information is there any possibility that the prosecution will just dismiss this charge? Am I more or less safe from getting an OVI like the officer said?
There are two types of OVI charges, impairment and per se. You have been charged under under the impairment section, ORC 4511.19A1a. Under this section, the State has to prove beyond a reasonable doubt that the alcohol you had in your system (no matter how little or how great the amount), noticeably impaired your ability to operate a motor vehicle. It is an opinion based charge and your odds of beating an opinion are much higher than trying to beat a failed breath test.
Chances are not very good that a Prosecutor is just going to dismiss the case because you tested under. However, if you hire a good OVI attorney, they can evaluate your case and determine if you can fight it and win.
The officers usually underestimate the danger on purpose. If you did poorly on field sobriety, it may be difficult to get a reduction and will certainly be difficult to get a dismissal with a legitimate stop. You must understand the legal limit is a guidline of sorts. If you're over, it's kind of presumed you were impaired. If you're under it's an open question. The statute includes a section for impaired driving regardless of your breath test. In other words, they don't need a test result to get a conviction.
You should hire an attorney as soon as possible. DUI is not a DIY situation. It's complex, technical law. Your chances at a good deal or even a dismissal is greatly improved with the help of an attorney.
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We do not know enough of the facts yet. We know only what you have written and the officer's version will not be the same at all. Hire counsel to investigate all the facts and advise you accordingly.
R. Jason de Groot, Esq. We do not have an attorney-client relationship. I am not your lawyer. The statements I make do not constitute legal advice. Any statements made by me are based upon the limited facts you have presented, and under the premise that you will consult with a local attorney. This is not an attempt to solicit business. This disclaimer is in addition to any disclaimers that this website has made. I am only licensed in Florida.
You can still be convicted of driving while impaired despite your low BAC. You should absolutely talk to qualified counsel as it sounds like you have a defensible case.
You can be charged with an DUI/OVI under ORC 4511.19 (A)(1)(a) (Driving while appreciably or noticeably impaired. There is a possibility that the prosecutor would dismiss but it does not happen often in many jurisdictions. The better possibility is that the prosecutor would amend the charge. Many Courts will allow amendments to reckless Operation or Physical Control. Hire a good lawyer who regularly handles DUI cases.
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