OVI / DUI 'Impaired' & 'Per Se' In Ohio

While drunk driving is commonly thought of as one law:  DUI (called ‘OVI’ in Ohio), there are really two general types of OVI offenses in Ohio.  The first type of OVI is called OVI ‘impaired’, and the second type is called OVI ‘per se’.  When a driver is arrested for OVI and does not consent to a test of his or her blood, breath, or urine, the driver is charged with OVI ‘impaired’.  When a driver does consent to a blood/breath/urine test and the test is ‘over the limit’, the driver is charged with OVI ‘per se’ and is typically also charged with OVI ‘impaired’.  These two types of OVI can be confusing, so this page is designed to clarify the confusion.

Ohio law makes it illegal to operate a vehicle under the influence of alcohol, drugs, or a combination of alcohol and drugs.  The phrase ‘under the influence’ has a certain meaning in Ohio law.  It means the alcohol and/or drugs noticeably impaired the driver’s mental processes, actions or reactions.  To prove a driver was under the influence, the prosecution must prove the alcohol and/or drugs affected the driver’s brain, nervous system or muscles in a way which would impair the driver’s ability to operate a vehicle.  

To prove a charge of OVI ‘impaired’, the prosecution introduces the testimony of police officers, the testimony of other witnesses, cruiser videos, body cam videos, and other evidence.  The evidence typically includes the driver’s performance on field sobriety tests.  Although field sobriety tests are designed to predict blood alcohol concentration, a driver’s performance on field sobriety tests is often admitted in court for ‘impaired’ charges to help prove the driver was under the influence of alcohol and/or drugs.

Ohio law makes it illegal to operate a vehicle with a prohibited concentration of alcohol or drugs in a driver’s blood, breath or urine.  The prohibited level for alcohol is .08% blood alcohol concentration, and there is also a high-test prohibited concentration of .17%.  The prohibited concentration for drugs depends on the specific drug involved.  This offense is called a ‘per se’ charge because it is ‘per se’ (“by itself”) illegal to have a prohibited concentration of drugs or alcohol in one’s system while operating a vehicle, even if that level of alcohol or drugs does not impair the person’s driving ability.

To prove a charge of OVI ‘per se’, the prosecution introduces the results from chemical tests of the driver’s blood, breath, or urine.  For those test results to be admissible, the test must be administered in compliance with regulations issued by the Ohio Department of Health.  If the testing procedure does not substantially comply with the regulations, the test result is inadmissible.  If the test is admissible, the result is circumstantial evidence of the driver’s drug or alcohol level at the time of operating the vehicle.  The accuracy of the test results can still be challenged in court.

A Driver May Be Charged With Both Types Of DUI / OVI In Ohio
If a driver is arrested for OVI, submits to a breath/blood/urine test, and the test results is at or over the prohibited level, the driver is usually charged with both OVI ‘impaired’ and OVI ‘per se’.  This is permitted under Ohio law.  The prosecution then has two alternate ways to try to prove the driver’s guilt.  However, the driver can only be sentenced for one DUI / OVI offense arising from one incident.

While OVI ‘impaired’ and OVI ‘per se’ are the two general types of OVI in Ohio, there are other OVI charges.  A person with a previous OVI conviction in the last 20 years who is arrested for OVI and refuses to submit to a blood/breath/urine test will be charged with OVI ‘test refusal with prior conviction’, in addition to OVI ‘impaired.  A driver who is arrested for OVI and has three prior OVI convictions in the last ten years, or five prior convictions in the person’s life, will be charged with felony OVI.  A driver who is under age 21 and has a blood alcohol concentration of .020 to .079 will be charged with Operating a Vehicle after Under-Age Consumption (OVUAC), in addition to OVI ‘impaired’.  

For a driver who is facing DUI / OVI charges, it is advantageous to be represented by a lawyer who understands the various types of DUI / OVI charges, especially if the driver intends to contest the charges.  At the Dominy Law Firm in Columbus, Ohio, our lawyers focus on DUI / OVI defense and represent clients who are contesting the case to seek an improved outcome.  They understand the various DUI / OVI charges and they know how to defend against them.  If you are charged with DUI / OVI in central Ohio and would like to discuss representation with one of our lawyers, you can schedule a free phone consultation by calling 614-717-1177 or by submitting this CONTACT FORM.