Covington & Kenton County DUI Lawyer

As a Covington KY DUI Lawyer, I get asked the same question over and over again about drinking and driving - and getting caught.

DUI, DWI, OVI all mean the same thing in Covington or Kenton County....you've been charged with driving under the influence or driving while intoxicated.

I will use the term DUI throughout this discussion, despite that DWI and OVI have the same meaning. Typically, Ohio charges are considered OVI (Operating a Vehicle while Intoxicated), Indiana charges charge DWI (Driving While Intoxicated) and Kentucky charges are DUI (Driving Under the Influence).

An individual can be charged with DUI can be found guilty based on any of the following:

• Driving while impaired by alcohol
• Driving with a prohibited blood alcohol level (this can be measured through blood, urine and/or breath)
• Driving while impaired by combination of alcohol and other drug(s)
• Many states also have prohibited levels of other drugs which may be in your system and subject to testing through blood or urine. Those other drugs include marijuana (Ohio spells it marihuana), cocaine, opiates, heroin and various other narcotics.

Most states allow the prosecution to proceed under any or all of the theories which may find guilt, however they do not allow for conviction under more than one theory. That is, if you are charged with driving while impaired and there is a blood test, you can be found guilty because your blood has level greater than .08 or if you were impaired by alcohol.

The BAL (blood alcohol level) or BAC (blood alcohol concentration) is measured by either an intoxilyzer, which measures breath or is analyzed in a lab if they test the blood or urine. Unless other drugs are suspected, most arrests result in a request for a breathalyzer/intoxilyzer.

If arrested, the police must have probable cause first to effectuate the stop of your vehicle. If there is no probable cause to stop, any resulting tests may be suppressed by the trial courts. If the police do have probable cause to stop, they must then present probable cause to believe that you are operating under the influence prior to arrest. Generally, the probable cause comes from either admission by the defendant and/or through various field sobriety tests. Those tests often include: one leg stand, walk and turn, finger count, alphabet test, number count, PBT and HGN (horizontal gaze nystagmus test).

YOUR RIGHTS REGARDING TESTING:

You have the right to refuse to perform any single or all requested field sobriety tests requested by the officer. If all tests are refused, the officer is placed in the position of either allowing you to return to drive or alleging probable cause and placing you under arrest at that time. Generally the officer will place the driver under arrest if all tests are refused. The effect of refusing all tests is two-fold: (1) the prosecution has very little evidence with which to prove your guilt; but (2) the jury will question why you did not take the tests. The refusal also does not give you the opportunity to prove your innocence if you are not intoxicated or impaired.

WHAT ARE THE FIELD SOBRIETY TESTS?

One Leg Stand: The one leg stand is a diverted attention test which tests your balance and ability to follow directions. The driver is asked to raise one foot off of the ground approximately 6 inches, hands to their side, and balance while counting from 1001 to 1030. The test is supposed to be given on level ground with flat shoes or barefoot. The test is supposed to be given for 30 seconds, regardless of the speed that the person counts. Clues of intoxication include: losing balance, counting improperly, raising arms and putting down the raised foot.

Walk and Turn: The walk and turn is also a diverted attention test which tests your balance and ability to follow directions. The driver is asked to stand in a certain position while the directions are given - this is part of the test! Then the driver is asked to take 9 steps, heel-to-toe, execute a turn with several small steps, then take 9 steps, heel-to-toe upon return. This test should be given on level ground, with an actual line if possible, and utilizing comfortable shoes. If the driver is wearing flip-flops or heels without a back, they should be given an opportunity to perform the test barefoot. Clues of intoxication include; losing balance, counting improperly, taking more or less than 9 steps, raising arms, falling "off the line", improper turn, and not touching heel to toe.

Finger Count: The finger count can be given in the vehicle prior to exit or may be given after the driver is out of the vehicle. The driver is asked to touch his thumb to his index finger then to each other finger counting from 1-2-3-4 and backwards 4-3-2-1. This is a dexterity test and clues of intoxication include improper counting, not touching thumb to finger tip or missing a finger.

Alphabet: The alphabet may also be given in the vehicle prior to exit or may be given after the driver is out of the vehicle. The alphabet is NOT backward: no driver is asked to recite the alphabet backward, despite many allegations of the same. The diver is asked to recite the alphabet; generally from D to Q (or sometimes R). The officer should first ask if the driver is educated so that he knows the alphabet and has any speech impediments. This is a mental test and clues of intoxication include: not starting at D, not ending at Q, singing, not stating the alphabet correctly or saying a letter twice.

PBT: Portable Breath Test. This is a breathalyzer test which the officer may carry in his vehicle. This test will test the amount of alcohol in your system, but is not scientifically accurate enough to be admitted as evidence and is often not regularly serviced. Even though the PBT breathalyzer will give an exact number indicating the level of intoxication, it is generally only admissible to prove that a driver had consumed some amount of alcohol. As such, it is generally only used if the driver denies any alcohol consumption.

HGN: The last and most controversial test is the HGN. The horizontal nystagmus test is generally given with a pen and the officer is watching the driver's pupil in the eye for signs of nystagmus. Nystagmus can be detected by:

• lack of smooth pursuit;
• distinct and sustained nystagmus at maximum deviation, and
• the onset of nystagmus prior to 45 degrees.

As a rule of thumb, a person's blood alcohol concentration can be estimated by subtracting the angle of onset from 50 degrees. Therefore, a person with an angle of onset of nystagmus at 35 degrees has a blood alcohol concentration of approximately 0.15%.

The field sobriety test studies published by the National Highway Traffic Safety Administration have never been peer reviewed and attempts to duplicate the study results have been unsuccessful.

The horizontal gaze nystagmus test has been highly criticized and major errors in the testing methodology and analysis found. However, the validity of the horizontal gaze nystagmus test for use as a field sobriety test for persons with a blood alcohol level between 0.04-0.08 is supported by peer reviewed studies and has been found to be a more accurate indication of BAC than other standard field sobriety tests.

Furthermore, it should be noted that nystagmus is naturally occurring in 25% of the population. As such, states and even counties vary on the admissibility, use and sufficiency of evidence indicated by the HGN test. Generally, Ohio courts give fair weight to this test in concluding whether a person is intoxicated. Conversely, Kentucky courts will generally not admit this test into evidence for any purpose.

WHAT DOES MY BAL/BAC MEAN?

There is much made of the number of your blood alcohol level. Most experts agree that a normal person becomes impaired when their blood alcohol level nears or exceeds .10. The actual impairment is based on a number of factors which affect each individual differently: how your body metabolizes alcohol, tolerance and brain chemistry. As these are not identifiable by current testing methods, the states enact laws making specific blood alcohol levels illegal.

The change from .10 to .08 by every state is a combination of science and lobbying efforts of special interest groups such as MADD. The lobby groups convinced the federal government to withhold state highway funding from any state that did not decrease their legal blood alcohol limit from .10 to .08. As such, it is now illegal to operate a vehicle with a blood alcohol level over .08.

Most states also have a high tier legal limit. If you blood alcohol level exceeds the high tier limit (.18 in Kentucky and .17 in Ohio), you are generally subject to mandatory or additional jail time over what are the minimum sentences for DUI. You may also be subject to additional alcohol counseling, longer term of probation and restrictions on driving such as ignition interlock system.

The state cannot mandate that you utilize a blood alcohol test, however they can suspend your license if you refuse the test. Careful attention and legal advise is highly recommended prior to determining if a driver should submit to the test. Consideration must be given regarding: the type of test requested, amount of alcohol consumed, time period for consumption, any other drugs ingested, sex, weight, and occupation of the driver.

A great source for finding more information on your blood alcohol level is http://bloodalcoholcalculator.org/.

Remember, if you have been arrested for DUI, it's in your best interest to find a professional Kenton County DUI lawyer as soon as possible. The sooner they get involved, the better your chances in court.

Call me at 859 581 6453....I'll get immediately involved.

Call 859 581 MIKE (6453)

For your convenience, we accept Visa and MasterCard for any Legal services.

Solo Practitioner since 1994.