Ohio Drugged Driving

In Ohio, a person is guilty of DUI if he or she operates any vehicle under the influence of alcohol, a drug of abuse, or a combination of them. Ohio Rev. Code Ann. § 4511.19 (West 2010).

In Ohio the threshold for drugged driving is illustrated in the following table. Ohio’s DUI Per Se Levels Id. § 4511.19(A)(1)(vii); Id. § 4511.19(A)(1)(viii)(I)-(II).

Affirmative Defense

It is a valid defense if a person obtained the controlled substance pursuant to a prescription issued by a licensed health professional authorized to prescribe drugs, and the person injected, ingested, or inhaled the controlled substance in accordance with the health professional’s directions. Id. § 4511.19(K)(1)-(2).

NOTE: A doctor’s recommendation to use cannabis is NOT a prescription.

Implied Consent

• Any person who operates a vehicle upon a highway or any public or private property used by the public for vehicular travel or parking within this state or who is in physical control of a vehicle shall be deemed to have given consent to a chemical test or tests of the person’s whole blood, blood serum or plasma, breath, or urine to determine the alcohol, drug of abuse, controlled substance, metabolite of a controlled substance, or combination content of the person’s whole blood, blood serum or plasma, breath, or urine. Id. § 4511.191(A)(2).
• If a person refuses to submit to chemical testing the penalty is license suspension for 1 year for the first refusal, two years for the second refusal, and three for the third refusal. Id. § 4511.191(B)(1).
• An arrestee who refuses to submit to blood alcohol test until he or she speaks with an attorney, arrestee has essentially refused a chemical test. Dobbins v. Ohio Bur. of Motor Vehicles 75, 664 N.E.2d 908 (1996).
• Arrestee’s request to confer with attorney before submitting to test was not refusal, where attorney had been contacted on first attempt and came to police station within 15 minutes. Stone v McCullion, 500 NE2d 326 (1985).
• The law enforcement agency by which the officer is employed shall designate which of the tests shall be administered. Id. § 4511.191(A)(3).

Penalties

• First offense 1st degree misdemeanor – mandatory minimum of 3 days consecutive imprisonment; maximum of 6 months imprisonment; OR required attendance in a driver’s intervention program for 3 days; fine not less than $375, not more than $1075; 6 months to 3 year suspension. Ohio Rev. Code Ann. §§ 4511.19 (G)(1)(a)(i),(iii),(iv) (West 2010); Ohio Rev. Code Ann. §4510.02(A)(5) (West 2010).
• Second offense (within 6 years) 1st degree misdemeanor – mandatory minimum of 10 consecutive days imprisonment, maximum imprisonment 6 months; required assessment by alcohol and drug treatment program; fine not less than $525, not more than $1,625; class 4 license suspension (1 to 5 years); offender’s vehicle and license plates impounded for 90 days. Id. §§ 4511.19 (G)(1)(b)(i),(iii)-(v); Id. § 4510.02(A)(4); Id. § 4511.193(B)(2)(a).
• Third offense (within 6 years) misdemeanor – mandatory minimum of 30 consecutive days imprisonment; maximum of not more than 1 year Fine not less than $850, not more than $2,750; class 3 license suspension; (2 to 10 years); required participation in an alcohol and drug addiction program; criminal forfeiture of vehicle. Id. §§ 4511.19 (G)(1)(c)(i), (iii),(iv),(vi); Id. § 4511.193(B)(2)(b).
• Fourth or Fifth offense 4th degree felony – mandatory minimum of 60 days consecutive imprisonment; maximum imprisonment for 1 to 5 years; fine not less than $1350, not more than $10,500; 3 years to life license suspension; required participation in an alcohol and drug addiction program; potential criminal forfeiture of vehicle. Id. §§ 4511.19 (G)(1)(d)(i),(iii), (vi); Id. § 4510.02(A)(2); Id. § 4511.19(G)(1)(d)(v).
• Sixth Offense (or more) 3rd degree felony – mandatory minimum of 120 days consecutive imprisonment; imprisonment for 1 to 5 years; fine of not less than $1350, not more than $10,500; license suspension; mandatory participation in an alcohol and drug addiction program; potential criminal forfeiture of vehicle. Id. §§ 4511.19 (G)(1)(d)(i),(iii)-(v).

Sobriety Checkpoints

In Ohio, law enforcement officials can conduct sobriety checkpoints under state and federal Constitution.

• Public interest was unquestionably advanced in an effective manner by sobriety checkpoint. Furthermore, police were not granted unfettered discretion, the checkpoint was publicly announced and cars were stopped in a non-discriminatory fashion. State v. Bauer, 651 N.E. 2d 46 (1994).

Case Law

State v. McLemore, 612 N.E.2d 795 (1992) — Positive urinalysis test for cannabis, along with signs of impaired driving, failed field sobriety tests, and cannabis in the defendant’s car, was sufficient to support a conviction for driving under the influence of marijuana. No threshold level of concentration of controlled substances is required.

Columbus v. Freeman, 908 N.E.2d 1026 (2009) — In Ohio, an intoxicated individual may use a vehicle as shelter, but may not operate a vehicle. ‘Operate’ is defined as “to cause or have caused movement of a vehicle.” Ohio does not have a safe harbor provision allowing drivers to pull over and sleep it off. You may still be charged with operating a vehicle while intoxicated if it can be proven you drove while intoxicated.