The National Transportation Safety Board (NTSB) made a new recommendation today regarding what should constitute the legal limit when it comes to blood or breath alcohol content (BAC) for driving under the influence (DUI) in all 50 states. The new recommendation would lower the BAC level of .08 that Mothers Against Drunk Driving (MADD) and related organizations championed and fought for in the 1980s to a mere .05, which can be feasibly achieved by only two drinks in an hour in the average American male, and one drink an hour for the average American female.
The NTSB claims that such a reduction in BAC limits by the states would restart the stalled reduction in DUI-related deaths originally sparked by the earlier MADD initiatives like raising the drinking age to 21 and lowering the legal limit to BAC .08, bringing the number of alcohol-related traffic deaths closer to zero. DUI fatalities in the United States dropped from 20,000 to just over 9,500 between 1980 and 2011, or from 40% of all traffic deaths to 31% allegedly due to awareness campaigns and states gradually implementing these legal recommendations. The reduction in DUI-related deaths occurred mainly in the 1990s, beginning to stall out by the end of the decade.
The board alleges that lowering the legal limit from a BAC of .08 to a BAC of .05 would save approximately 500-800 more lives a year, while the Insurance Institute for Highway Safety gives a higher number at 7,000 lives a year. The NTSB points to other countries to back up their claim. Most European countries have a BAC legal limit of .05, and Australia recently watched their alcohol-related traffic deaths decrease by 12 percent after the implementation of a legal limit of BAC .05.
Many people strongly disagree with the recommendation for reducing the legal limit, claiming it would do nothing but put responsible, unimpaired drivers at risk for an expensive DUI conviction by blatantly ignoring the variables in the relationship between driving ability, BAC, and impairment in each individual. The managing director for the American Beverage Institute, Sarah Longwell, called the recommendation "ludicrous" and pointed out that in the 1980s "groups like MADD assured the country, that, based on all the science, 0.08 BAC was absolutely, unequivocally where the legal threshold should be set for drunk driving."
Longwell then questions whether it’s the science that has changed, or the goals of anti-alcohol activists. The American Beverage Institute instead believes that the focus should be on the drivers with higher BAC levels, since more than 70% of DUI fatalities are caused by drivers with a BAC of 0.15 or higher – which represents an average consumption of six or seven drinks. Since these drivers are already on the roads with a BAC limit of .08, what would a BAC limit of .05 do but cause an increase in arrests in what would otherwise be responsible drivers, the ABI alleges.
The NTSB can’t put the BAC reduction into place, but many state legislators will take the recommendation seriously, as well as the organization’s recommendation to the National Highway Traffic Safety Administration (NHTSA) to provide financial incentive to the states that implement the changes.
When it comes to Ohio DUI, known in this state as Operating a Vehicle while Impaired or OVI, the recommendation to lower the BAC limit from 08 to .05 is not only "ludicrous" as Longwell says, but unnecessary. According to O.R.C. § 4511.19 it is an illegal OVI offense for any person to operate a vehicle in Ohio if under the influence of alcohol, a drug of abuse, or combination, or with a BAC level of .08 or higher.
An OVI offense in Ohio is therefore simply driving while impaired at any BAC level, with .08 acting essentially as a mandatory BAC guideline for intoxication. Since an arrest for drunken driving in Ohio is primarily based on the impairment of the driver, lowering the BAC level in Ohio OVI law to .05 would just be redundant. If you are concerned about the NTSB’s OVI law recommendations affecting your Franklin County OVI charge, or are seeking to fight for a reduction or dismissal of your Columbus area OVI case, it is strongly recommended you seek the counsel of an experienced Columbus OVI defense lawyer to explore all of the defense options available to you.
Posted in DUI
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Tagged .05 BAC, MADD, NTSB, OVI
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Spring break is a prime occasion for consuming alcohol and partying, especially in college towns across Ohio. Yes, alcohol remains illegal for those less than twenty-one years of age, but historically that ban has had negligible impact on keeping liquor and beer out of the hands of minors. One of the most dangerous parts of any scenario involving copious amounts of drinking or even drug use is driving under the influence.
As you can imagine, Ohio does not treat people who drive while intoxicated or drugged lightly – especially not underage drunk drivers. Driving under the influence is commonly referred to as DUI in many states, and even Ohio. However, according to the state statute, this crime is actually called OVI – Operating a vehicle under the influence of alcohol or drugs. When a minor is charged with the offense, it is referred to as Operating a Vehicle After Under Age Consumption (OVUAC).
If a driver under the age of 21 is arrested for a first OVI in Ohio after driving with a blood alcohol content level between .02% and less than 0.08%, several things may happen. The first is immediate suspension of their Ohio driver’s license by the Ohio Bureau of Motor Vehicles. The license will remain suspended for a period of 90 days to 2 years, according to section 4510.02(A)(6) of the Ohio Revised Codes.
Other penalties may include a $250 fine, 30 days of jail time and / or probation, an alcohol treatment program ordered by the court, as well as a remedial driver’s instruction class. Penalties are stiffer if this is a repeat DUI offense or if the blood alcohol content level was greater than 0.08%.
Underage drunk drivers who receive conviction while enrolled in a public Ohio university will also lose financial aid given by the state for a period of two years.
Other penalties related to underage drunk driving are possible sanctions by the driver’s college or university. Many colleges in Ohio maintain their own honor code, which they expect all students to abide by. Depending on the terms laid out in their code or student handbooks, there can be additional punishment for crimes, even if they were not committed on campus. A student disciplinary council may be called to determine penalties such as suspension, exclusion from extracurricular activities, and potentially even expulsion.
Keep in mind that an arrest for allegedly driving while intoxicated does not mean that conviction is automatic. An experienced defense attorney can help the driver avoid or minimize any penalties. Many defense lawyers also represent clients during student disciplinary hearings, helping ensure their education and future career opportunities do not suffer.
Ohio is home to many of the nation’s top colleges and universities, including Kent State, Ohio State University, Ohio University, Wright State University, Youngstown State University and others. Law enforcement officers will still be vigilant to drivers under the age of 21 who behave suspiciously on the road. Please drive responsibly this Spring Break.
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The Fourth Amendment gives "the right of the people to be secure in their person, houses, papers, and effects, against unreasonable searches and seizures," and though it seems straightforward and clear enough, the U.S. Supreme Court has spent decades specifying what constitutes a violation of this right and what doesn’t. The most recent case in this venture, Missouri v. McNeely, centers around whether it is a violation of an individual’s Fourth Amendment rights to forcibly draw blood from an alleged DUI offender after they refuse to submit to alcohol testing without a warrant or directive from the courts.
The controversy in this case arises out of strongly divided interpretation of the Supreme Court precedent of Schmerber v. California. In this case, the court determined that a law enforcement officer may forcibly draw blood without a warrant if "special facts" were present that indicated exigent circumstances. The exigent circumstances in this case were that there was a severe accident, and between investigating the accident and taking the alleged offender to the hospital, the officer did not have time to get a warrant for the blood sample before the evidence of alcohol had disappeared from the bloodstream.
However, in Missouri v. McNeely there were no such exigent circumstances except for the fact that the percentage of alcohol in a person’s blood begins to lessen shortly after the person quits drinking. The patrolman pulled over Tyler McNeely for driving 11 miles over the speed limit, and subsequently had reasonable cause to believe that McNeely was guilty of DUI upon McNeely’s failure of field sobriety tests. After McNeely refused a breath test, the officer drove him to a hospital where he also refused the blood test. Since the officer had recently read material about implied consent, he believed a warrant was not necessary for a force draw and ordered the blood test without even pursuing a warrant.
McNeely’s levels were nearly double the legal limit, so he was taken to court for DUI. However, the trial judge threw out the BAC evidence, claiming the forced blood draw was against McNeely’s constitutional rights – a decision the Missouri Supreme Court upheld. The prosecution, though, continues to contend that the chemical elimination of the DUI evidence in the blood is an issue urgent enough to justify a forced blood withdrawal without a warrant.
The issue of whether or not this naturally-occurring elimination of evidence is enough of a exigent circumstance all by itself to allow the precedent of Schmerber v. California to apply is what is up for debate in the Supreme Court case. The prosecution argues that several courts throughout the United States have already ruled that the dissipation of evidence from the defendant’s bloodstream is indeed enough of an exigent circumstance to warrant forced blood withdrawal without the court’s permission.
McNeely’s representatives – lawyers from the American Civil Liberties Union – contend that the forced obtainment of evidence actually violates the precedent because there were not circumstances present to prevent the patrolman to at least consider or attempt getting a warrant. Additionally, there was other evidence available in the case that the prosecution could use besides the blood test.
McNeely’s lawyers also argue that there is not enough scientific evidence or expert testimony to determine that alcohol disappears from the blood fast enough to excuse a force withdrawal, and that even by the prosecution’s standard of alcohol disappearing from the bloodstream at an average of .0165%, it would have taken over four hours for the blood evidence to dissipate enough to prevent violation of the legal limit. Since many warrants can be obtained electronically in minutes nowadays, McNeely’s lawyers contend that the slow eroding of evidence in a alleged DUI offender’s blood is not exigent enough on its own to permit the lack of a warrant.
A decision hasn’t been reached yet, but according to Lyle Denniston, reporter for SCOTUSBlog, the justices do seem to be agreeing on a few things. The first is that the police are probably going to have to at least attempt to obtain a warrant, despite the fact that according to the precedent of Schmerber v. California, it is not always required. The justices also seem to agree that inserting a needle into a person to obtain a blood sample is a procedure that would be invasive if performed by the government without the alleged offender’s consent.
Additionally, the Supreme Court seems to agree that the premise of alcohol disappearing from the blood stream is not an exigent circumstance severe enough by itself to permit warrantless forced blood draws, and that the warrant requirement of the Fourth Amendment should not be simply set aside for all DUI cases where the officer decides to take a blood sample. Hopefully, the final decision will reflect these assumed agreements and protect an individual’s Fourth Amendment rights from the whims of a police officer who wants a blood sample in an alleged DUI case. Drivers should retain a right of refusal to submit to DUI testing in Columbus.
‘Tis the season for holiday parties, meaning ’tis the season for frequent DUI stops. Police will be on the lookout for drunk drivers, and are likely to set up OVI checkpoints this season. Despite what you may have heard, police officers are not prone to let drivers they suspect of driving under the influence off easy due to Christmas spirit — they’re just as likely to arrest you as any other time of the year. Penalties for an OVI are significant, with a required three day jail sentence that could extend up to 180 days and up to a $1,075 fine — and that’s just the first offense. The second offense carries a 10-day minimum sentence and a 1-5 year suspension of your driver’s license. Penalties continue to increase after that.
Police must announce a checkpoint ahead of time, and it will often be mentioned on the local media’s website. Usually, the reports will say where the checkpoints will be, and what hours they will be operational. However, you have to be vigilant, and if you’re not looking for news about checkpoints, it’s easy to miss. Checkpoints are frequently at night, but Ohio police also have them during the day. Earlier this month, a checkpoint on South High Street was held from noon to 4 p.m., and snagged two OVI arrests and 11 other citations. The checkpoints tend to be more frequent during holiday seasons, especially for holidays known for alcohol consumption, like New Years.
Even at a checkpoint, you can refuse a field sobriety test or breath test. Your refusal will lead to an automatic suspension of your license for a year. However, it will also deny prosecutors an important piece of evidence they could use against you.
A positive test will not automatically mean a conviction, just as refusing a test does not automatically mean you’ll go free. In either situation, an experienced Columbus DUI defense attorney can help argue your case, and fight evidence. There are also specific procedures police must go through, and many ways for your rights to be violated. An attorney will fight for your rights.
The best way to ensure a safe holiday is to make sure to use a designated driver or to call a cab. But if you wind up being arrested for drunk driving charges, our attorneys are here to help you.
Posted in DUI
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Tagged Breath Test, DUI, Holiday
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Since Ohio voters passed the 2009 amendment allowing casinos there have been a few changes to the major urban landscapes in the state – and their cultural counterparts. The first Ohio casino was the Horseshoe Casino in Cleveland, followed by Hollywood Casino of Toledo. The Horseshoe Casino of Cincinnati is scheduled to open in 2013. There are those that favor casino development for their economic benefits as well as those who oppose the idea because of alleged associated increased crime rates. One of the hot-button topics is whether casinos will increase the crime rate for Ohio DUI and other alcohol- and drug-related offenses in the immediate and surrounding areas.
This year, Columbus got in the game with its first racino at Scioto Downs in June and its first Vegas-style establishment Hollywood Casino, which opened just this past October. Both casinos offer various opportunities for gambling, entertainment, and alcoholic beverage consumption. So what does this mean for the DUI rate in Franklin County and the surrounding areas? More specifically, what does it mean for you, a potential casino patron?
In 2010, the Journal of Health Economics released a study entitled “The Impact of Casinos on Fatal Alcohol-Related Traffic Accidents in the United States.” The study indicates that in urban areas, casinos actually reduce the rate of DUIs, while the rate for suburban and rural areas increases. The authors surmise that for urban areas the decrease in driving distance, availability of public transportation, and substitution of gambling for bar-hopping accounts for the decreased rate, while the rate jump in more sparsely-populated areas is caused by the increase in distance driven by alcohol-impaired drivers.
Even though the study seems to indicate the relative safety of the Columbus urban areas with regards to DUI, the responsibility is ultimately up to you. If you live in the urban area and decide to visit the casino, make sure you are prepared to use public transportation or are accompanied by a designated driver. If you are visiting the casino from one of the outlying areas of Columbus, always make sure you are with another person who either cannot or will not drink. Remember, the atmosphere and drink specials at a casino bar are designed to get you to drink and spend more money. Making these arrangements ahead of time will ensure your protection from a Columbus DUI arrest at Hollywood Casino or Scioto Downs racino should you give in to temptation.
An Ohio DUI (aka OVI) arrest is no joke. Even with a first-time offense, if your alcohol level is above .08 (.04 for commercial drivers), you could face a fine, jail time, license suspension, and cultural repercussions of having a misdemeanor on your criminal record. Additionally, the tight security at Hollywood Casino Columbus and Scioto Downs racino will supply more concrete evidence against you, further impeding your defense. Don’t face the stress of a DUI charge. If you plan to visit a Columbus casino – be smart. Take a designated driver and be prepared. If you’ve already been arrested for a DUI, whether it involved a casino or not, it is a great idea to hire an experienced Columbus DUI lawyer as soon as possible.
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