Not listed here is the answer of whether to blow or not to blow. That is, whether to take the breath test. First, this is referring to the evidentiary test given at the police station, not the unreliable and inadmissible portable test generally given at the roadside. The test given at the roadside generally should be refused, just as the other roadside sobriety tests. But what about the evidentiary test at the police station? It used to be the case that the general rule was to refuse the test.
The Ohio Legislature reacted, however, making the refusal alone an OVI offense in many cases. Whether to blow depends on whether you were drinking, and if so, how much? Will your test be a high test? Do you have a CDL? Have you had another OVI in the prior 20 years?
In the most general sense, without knowing any of your individual circumstances and therefore not to be considered as legal advice, refusing the test may be best if it is your first OVI and you had drinks. Taking the test may be best if you have a prior OVI conviction.
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By doing so, you have just given the police officer sufficient cause to test you further and charge you with an OVI. That is right, even if you take the breath test and blow under the limit, if you admit you had drinks the police can still charge you with an OVI. Keep your mouth shut. Politely tell the police officer that you are exercising your constitutional right not to answer his questions.
While there may be times that police conduct the roadside sobriety tests and let the individual go, this is the exception. Roadside sobriety tests are most often solely for the purpose of using them against you. Despite the position of the police and prosecutors, it is our belief that in the real world they are conducted in manner by which they cannot be passed. They will probably result in video of you stumbling, leaning, or not following the police officer’s instructions exactly, even if those instructions were unclear to you as you were nervous, pulled over in the dark of night, and asked to engage in these tests along the side of the road with passing cars. Politely refuse the roadside sobriety tests.
When your lawyer meets with the prosecutor during a pretrial to attempt to resolve, dismiss, or plead down your OVI charge, the prosecutor will often ask the police officer who pulled you over if he has any objections. If the police officer is offended by the way you behaved when he pulled you over, he is going to be another obstacle for your lawyer to overcome in resolving your charge. Be polite with the police officer, even if it is to politely tell him you are exercising your constitutional right not to answer his questions or take his tests.
Too often, we find people initially do not realize the severity and implications of having a suspended license, and they go right back to driving or maybe even drinking and driving as that had for years before being pulled over for an OVI. They do not realize they are a target for the police. Further, getting a Driving Under a Suspended License is not only a criminal charge, but it makes resolving the initial OVI charge with the court all that much more difficult. Request driving privileges when you are eligible, carry with you the order granting you privileges, and follow the rules of the privileges.
Representing yourself increases your chances of being found guilty, increase the likelihood of increased fines, jail time, and penalties, and increases the chances your auto insurance will sky rocket. Obtain an attorney who regularly defends OVI charges, and your chances of justice and reduction or elimination of charges and penalties will be greatly enhanced.
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