Ohioans, especially baby boomers taking any prescription medicines, should be very nervous. Why? You are now the focus of the newest toy in the Ohio drunk driving, DUI – OVI, enforcement toy box. The Feds have given Ohio lots of money to obtain and use this toy. Recently both the Columbus Dispatch and WBNS 10TV interviewed me for stories about the new DRE training program. Amazingly, in the 10TV story, the spokesman for the Ohio Highway Patrol asserted that officers with minimal training can be more accurate than a blood test at detecting whether you are on drugs. Really? If you don’t believe me, you can check out those news stories here: http://tinyurl.com/10TV-DREstory – http://tinyurl.com/10TV-DRE-no-video – http://tinyurl.com/Columbus-Dispatch-DRE
What is the DRE program and how does it work? What it is, quite simply, is yet another way for Ohio to try to hang a drunk driving conviction on you –and no you do not have to be drunk or impaired to get a DUI / OVI conviction in Ohio. Amazingly, 23 of the 25 Operating Under the Influence charges contained in Ohio Revised Code Section 4511.19 do not require proof of being under the influence or proof of any degree of impairment.
The new DRE program is a part of a big, federally directed and funded, push to increase arrests and convictions for what we call DUID (DUI Drugs) and in Ohio it is primarily aimed at legal drugs. Ohio already has DUI / OVI offenses aimed at marijuana, cocaine, heroin and other drugs of abuse. If you have even slight amounts of these substances or their inactive metabolites in your system you will be fighting a DUI charge –and an uphill battle.
Here is a snapshot of how the new DRE program will work. Bear with me as the DRE comes in at the end of the typical arrest process, but you may have mistaken ideas about how that process works anyway, so let’s go through it. Let’s say you are driving in Ohio and are suspected of operating a motor vehicle under the influence of alcohol, aka DUI or OVI, perhaps you were stopped at one of the many -federally funded- DUI roadblocks and had been driving in a safe and legal manner, doing nothing wrong. If the The officer smells even a whiff of alcohol or you admit to having a glass of wine or he just suspects anything he will have you perform, so called, “Field Sobriety Tests”, aka FSTs or SFSTs. To avoid arrest you will need to do perfectly on those –in the eyes of the officer. If you do not pass any one of the six (6) field sobriety tests Ohio police officers typically put you through you will be placed under arrest. I should note here that you are not required to do these FSTS, but most people foolishly expect that they will be fairly judged – this is a very erroneous assumption.
How do I know the officer will arrest you? Because he must arrest you so he can obtain an evidentiary breath test under the Ohio Implied Consent / Administrative License Suspension (ALS) law. So, yes, you are arrested before they find out what your breath alcohol level is. If you are lucky they will have a breath test van right on site. All you have to do is take the breath test and “prove your innocence” right? Don’t kid yourself. Whether, or under what circumstances, you should ever consider submitting to any chemical test is another topic. To learn more about that go to our website www.serious-ohio-dui-defense.com/
Now let’s say you do take a breath test and test below the .08 BAC legal limit, say it’s a .02, you might expect that you’d be released immediately without charges; right? You might even expect a small apology. Again, no such luck. In the first place, and this was true even before DRE program, police officers don’t un-arrest you. Once arrested for OVI – DUI your license is seized, you may well spend the night in jail and you will be required to appear in court.
OK, now at long last, we get to the “Drug Recognition Expert” his job is to basically find an alternate, drug related, basis for charging you with OVI – DUI. Thus if you test below the legal limit, even if you test zero, you will be asked to submit to a blood or urine test. You do not have to take such tests but your license will be suspended if you don’t – just as it would for a breath test (see above.) You will also be asked, encouraged, prompted, guided, cajoled to submit to a DRE evaluation. You will not be told at the outset that this is a lengthy, multiple step process nor its real purpose.
You absolutely do not have to submit to this evaluation – your license will not be suspended for declining to do it.
It remains to be seen how Ohio officers will go about encouraging you to along with this process. DREs are used in many other states and, for some reason; folks seem to “go along with the program.” Perhaps they will pretend it’s some type of routine quick medical exam they always do. It is certainly very doubtful that they will make it clear that you are absolutely free to “just say no” to any physical examination, any field exercises and any quasi-medical procedures. In a blog entry later this week I will discuss the actual DRE procedures, the claimed accuracy rate and the true accuracy rate. For now I will leave you with this; the DRE procedure starts with asking you about any drug or medications you are taking.
If an officer asks you any questions related to drugs or medications, legal or illegal, you should immediately and clearly tell the officer “I do not wish to answer any questions without a lawyer present -period.” Doing so cannot be used against you. That right is there to protect innocent citizens who are under suspicion by government agents. Use it.
For more information on Ohio OVI – DUI law, your rights or your options in defending against such charges, please visit our website: www.serious-ohio-dui-defense.com/
About The Author Tim Huey
Tim Huey is an Ohio criminal defense lawyer who focuses on Ohio DUI, OVI, vehicular assault and homicide cases. He is the Immediate Past President of the Ohio Association of Criminal Defense Lawyers, has served as the OACDL DUI chairman for more than 10 years. He is the Ohio Delegate to the National College for DUI Defense as well as a Life Member of the National Association of Criminal Defense Lawyers. He is regularly contacted by news media regarding DUI / OVI related stories including the Cleveland Plain Dealer, Columbus Dispatch, WBNS-10TV, WSYX 6, NBC 4 and their affiliates. He has been a frequent guest of Bob Connors, Joel Riley and John Corby on 610 WTVN radio. At the Huey Defense Firm our basic philosophy in handling each case is “what if it was me?” If you need our help please do not hesitate to call day or night.