CDL Disqualifications
When a commercial driver’s license (CDL) holder is charged with OVI, there are potential consequences beyond the court proceedings. An OVI investigation can result in the Ohio Bureau of Motor Vehicles (BMV) disqualifying the person’s CDL. For a first disqualifying event, the driver is disqualified from operating a commercial vehicle for one year. For a second, the disqualification is lifetime.

Dominy Law Firm attorney Abagale Bentley taught the seminar attendees about the four statutory triggers for an OVI-related CDL disqualification. She emphasized that each trigger operates independently, and counsel should be aware that eliminating one does not necessarily eliminate another. Abagale explained the practical considerations in CDL cases and the strategies for avoiding disqualifications.

Out-of-State DUI Consequences
When a person with an Ohio driver’s license is convicted of DUI in another state, there are potential consequences in Ohio. An out-of-state DUI conviction results in the Ohio BMV suspending the person’s Ohio driver’s license. If the other state’s DUI statute is substantially similar to Ohio’s OVI statute, the license suspension has a duration of six months.

Dominy Law Firm attorney Abagale Bentley taught the attendees about the process the BMV follows when suspending an Ohio license for an out-of-state DUI conviction. She explained the notice received by the licensee, the length of the suspension, and the deadline for appealing the suspension. Abagale described the strategies for challenging the merits of the suspension, shortening the duration of the suspension, and obtaining limited driving privileges.

Ohio Senate Bill 55
Senate Bill 55 is proposed legislation regarding marijuana-based OVIs. The bill would reduce the types of OVI marijuana offenses and amend the rules regulating the admissibility of evidence in trials for marijuana-related OVI cases.

Dominy Law Firm attorney Bryan Hawkins taught the seminar attendees the details of the proposed changes. He explained the statutory prohibitions which would be eliminated from the current law and the changes in prohibited THC concentrations. He also described the new inferences based on THC levels and clarified the permissible challenges to THC evidence.

Bryan Hawkins is intimately familiar with Senate Bill 55. He provided proponent testimony before the Ohio House Judiciary Committee and continues to be involved in the legislative process for the bill.

Challenging Breath Test Evidence
When a client is charged with OVI and the case involves a breath alcohol test, the defense typically files a motion to suppress the breath test evidence. The judge holds a hearing on that motion which includes testimony and exhibits. The judge then issues a decision on the admissibility of the breath test evidence.

I taught the attendees the method used by the Dominy Law Firm for litigating motions to suppress breath test evidence. That method starts with filing a specific demand for discovery and drafting a particularized motion. It continues with spotting the issues while reviewing the evidence in police reports, videos, and breath-testing records. It involves thorough preparation and culminates with presenting a compelling argument at the hearing.

Teaching and Learning
It was great that all three attorneys at the Dominy Law Firm were invited to make presentations at the seminar. But we didn’t just teach; we also learned. The seminar featured some outstanding lawyers from across the country, and we learned a great deal from them.

The Offense of OVUAC for People Under 21
For drivers of all ages, paragraph (A) of Ohio Revised Code section 4511.19 makes it illegal to operate a vehicle with a prohibited concentration of alcohol. The prohibited concentration is .08% for blood, .08 grams per 210 liters of breath, and .011 grams per 100 milliliters of urine. This is commonly referred to as the ‘legal limit’, and the offense is called Operating a Vehicle under the Influence (OVI).

For people under 21 years of age, the ‘legal limit’ is lower. Paragraph (B) of ORC 4511.19 creates a separate offense for individuals in that category, and it’s called Operating a Vehicle after Under Age Consumption (OVUAC). Paragraph (B) makes it illegal for a person under 21 to operate a vehicle with a prohibited concentration of alcohol. The prohibited concentration is .02% for blood, .02 grams per 210 liters of breath, and .028 grams per 100 milliliters of urine. The ‘legal limit’ for individuals under 21 is 25% of the ‘legal limit’ for individuals age 21 and over.

Investigation of OVUAC Offenses
The investigation of OVUAC is essentially the same as the investigation for OVI cases. It starts with law enforcement coming into contact with an individual and developing a suspicion that individual is under the influence. If an officer develops that suspicion, the officer typically administers field sobriety tests. The tests are the same for people of all ages.

If the officer completes the investigation and determines there is probable cause to believe the individual violated the law, the officer arrests the individual. The officer ordinarily asks the individual to submit to a breath alcohol test. If the result of the breath test is at or over .02 (but under .08), the officer charges the individual with OVUAC.

There may be a difference in the determination of probable cause. Some courts in Ohio have determined that the amount of evidence necessary to constitute probable cause is lower for people under 21 because the ‘legal limit’ is lower for them. Other courts have concluded the amount of evidence is the same for all persons, regardless of age.

Prosecution of OVUAC Offenses
If a person charged with OVUAC is an adult, the prosecution occurs in an ‘adult’ court. The person will attend mandatory court appearances in a municipal court, county court, or mayor’s court. If a person charged with OVUAC is a juvenile, the prosecution occurs in juvenile court. It may be the juvenile court with jurisdiction where the offense occurs or the juvenile court with jurisdiction where the juvenile lives.

Penalties for OVUAC Offenses
The penalties for OVUAC are different than the penalties for OVI. For a first-offense OVI, the mandatory penalties include a jail term of three days to 180 days, a fine of $565 to $1,075, a driver’s license suspension of one year to three years (with 15 days of hard time before eligibility for driving privileges), and six driver’s license points.

For an adult first-offense OVUAC, the mandatory penalties include a jail term of zero to 30 days, a fine of $0 to $250, a driver’s license suspension of 90 days to two years (with 60 days of hard time), and four driver’s license points.

For a juvenile OVUAC, the penalties include confinement in a juvenile detention facility for up to five days, a fine of up to $100, a driver’s license suspension of up to two years (with no mandatory hard time), and four driver’s license points.

Sometimes the Differences Don’t Matter
In the case of the young man who hit the school bus, OVUAC is a non-issue. The offense of OVUAC is charged when the blood alcohol concentration is at or over .02 but under .08. In that young man’s case, the blood alcohol concentration was reported as .25. In addition, there was reportedly a third vehicle involved in the collision, and the driver was seriously injured. As a result, the young man was charged with OVI (not OVUAC) and Aggravated Vehicular Assault, and his case will be held in a common pleas court.

The ALS is triggered by a single document completed by the arresting officer: the BMV Form 2255. That form was revised in 2025. The revisions are important in the context of Ohio’s implied consent law and can affect the validity of an ALS.

Implied Consent in Ohio
Ohio’s implied consent law is outlined in Ohio revised Code section 4511.191. In simple terms, the law says, if you operate a vehicle (or are in physical control of a vehicle) in Ohio, you have already agreed to chemical testing if you are arrested for OVI. Chemical testing is used to measure alcohol and drugs in a person’s breath, blood, urine, and oral fluid.

If a driver refuses a chemical test, or tests above the ‘legal limit’, an ALS is imposed. The suspension starts immediately, does not depend on a conviction, and can remain in place even if the OVI charge is later dismissed.

Officers’ Duties When Imposing an ALS
According to Ohio Revised Code section 4511.192, the arresting officer must follow a series of steps before imposing an ALS. The officer is required to explain the consequences of refusing or taking a chemical test, read the required warnings, request a chemical test within the required time frame, and complete a sworn report.

What is the BMV Form 2255?
The sworn report discussed in ORC 4511.192 is the BMV Form 2255. The form documents why the officer believed there were grounds for the OVI arrest. It shows whether the driver refused a chemical test or what the test result was. It also serves as notice to the driver that an ALS has been imposed and gives the BMV the information it needs to place the suspension on the drivers record.

The BMV Form 2255 is also used as evidence in ALS appeals. If the form is not read, completed, sworn, and served in the way the law requires, the form may not serve as evidence in the appeal.

Why the BMV Form 2255 is Important
Ohio law directly ties to the legality of an ALS to the sworn report completed by the arresting officer, and that sworn report is the BMV 2255. Under ORC 4511.192, the officer must send the report to the BMV within 48-hours, confirm that the required warnings were read and shown to the driver, document whether the driver refused testing or tested above the ‘legal limit’, and confirm the driver was provided a copy of the form. Because the ALS takes away a person’s driver’s license without any court involvement, Ohio law requires officers to follow the statute very closely.

The statute also states that the sworn report is prima facie proof of the suspension. In other words, the BMV and the court rely on the BMV Form 2255 itself as the evidence supporting the ALS. That is why mistakes on the form matter. When those requirements are not followed, the suspension may be legally invalid.

What changed in the 2025 version of the BMV Form 2255?
In 2025, the BMV updated Form 2255 to reflect recent changes to Ohio’s OVI and implied consent laws. The updated form clearly documents a copy of the form was provided to the driver at the time of arrest. It also contains revised language related to controlled substances and metabolites to match current OVI law. In addition, it includes a section addressing forced chemical testing in certain repeat-offender situations. In addition, the affidavit and certification sections were revised to reflect the current statutory requirements.

These changes are not just formatting updates. They are tied directly to changes in the law and place specific obligations on arresting officers. A form which was sufficient under prior law may no longer meet the statutory requirements after the 2025 update to ORC 4511.192.

Why the BMV Form 2255 Matters
An ALS is only valid if it is imposed exactly the way Ohio law prescribes. Due process normally requires a hearing before taking property, and a driver’s license is property. Courts permit an immediate license suspension, without a prior hearing, because the statute includes specific procedural protections for drivers.

When those protections are missing, the ALS may be invalid. Some officers continue to use older versions of the BMV Form 2255. When that happens, the current requirements for imposing an ALS may not be fulfilled, and the ALS may be terminated.

Conclusion
The BMV Form 2255 is more than routine paperwork: it is the foundation of every ALS imposed in Ohio OVI cases. With the 2025 revisions to the form, careful review is more important than ever. When the wrong version is used and the statutory requirements are not followed, the suspension may not hold up. For a person subjected to an ALS, it would be wise to consult an OVI defense lawyer who is knowledgeable about Ohio’s implied consent laws.

What is Proximate Cause?
For a charge of Aggravated Vehicular Assault under Ohio Revised Code (ORC) section 2903.08(A)(1)(a), the prosecution must prove the driver operated a motor vehicle and cause serious physical harm to another person as a proximate result of committing a violation of ORC 4511.19 (Ohio’s OVI statute). In colloquial terms, Ohio’s OVI statute prohibits operating a vehicle while ‘under the influence’ of, or ‘over the limit’ for, alcohol, a controlled substance, or a metabolite of a controlled substance.

To prove the serious physical harm was a proximate result of the OVI violation, the prosecution must prove the defendant’s driving ‘under the influence’ or ‘over the limit’ was the proximate cause of the serious physical harm. Proximate cause is present when the conduct is “so closely connected with the result and of such significance that the law is justified in imposing liability.”

In this case, the defendant was charged with both types of OVI: operating while ‘under the influence’ of marijuana metabolite and operating while ‘over the limit’ for marijuana metabolite. The judge who heard the evidence found the defendant not guilty of being ‘under the influence’ but guilty of being ‘over the limit’. If the defendant was not ‘under the influence’, the question is whether being ‘over the limit’ for an inactive marijuana metabolite can be a proximate cause of serious physical harm.

What is Inactive Metabolite?
The compound in marijuana which is psychoactive is THC (delta-9-tetrahydrocannabinol). ‘Psychoactive’ means it causes behavioral and cognitive effects, such as euphoria, relaxation, altered time perception, and lack of concentration. When ingested, THC is metabolized to the psychoactive metabolite ‘Hydroxy THC’ (11-hydroxy-delta 9-tetrahydrocannabinol) and then to the inactive metabolite ‘Carboxy THC’ (11-nor-9-carboxy-delta 9 tetrahydrocannabinol).

In this case, the marijuana metabolite found in the defendant’s urine was ‘Carboxy THC’. ‘Carboxy THC’ may be detected in a person’s urine for up to five weeks after ingesting THC. The behavioral and cognitive effects of THC last for only a few hours.

Can an Inactive Metabolite be a Proximate Cause?
The serious physical harm to the trooper was caused by the defendant hitting the trooper with his vehicle. The question is: could the defendant hitting the trooper be caused by operating the vehicle with ‘Carboxy THC’ in his urine?

An inactive metabolite like ‘Carboxy THC’ is, by definition, not psychoactive. Its presence in a person’s urine does not cause behavioral and cognitive effects. An inactive metabolite cannot impair a person’s driving ability. It is logically impossible for operating a vehicle with an inactive metabolite to cause a collision and therefore be the proximate cause of serious physical harm.

How did the Court Conclude There Was Proximate Cause?
The Court was not deciding whether proximate cause was actually proven beyond a reasonable doubt. Instead, the Court was deciding whether the evidence was sufficient to sustain the conviction. For that determination, the test is: when viewing the evidence in a light most favorable to the prosecution, could a reasonable trier of fact conclude operating a vehicle with a prohibited concentration of marijuana metabolite was the proximate cause of the serious physical harm. The court answered that question in the affirmative and held the evidence was sufficient to support the conviction for Aggravated Vehicular Assault.

The problem with the Court’s reasoning is the Court conflates the two types of OVI: operating while ‘under the influence’ and operating while ‘over the limit’. To support its conclusion, the Court referenced testimony of police officers who administered field sobriety tests and suspected the defendant was under the influence of marijuana.

The Court should not have considered this evidence because the conviction was based on the defendant being ‘over the limit’. In fact, the trial court specifically concluded the evidence did not prove the defendant was ‘under the influence’. The Court erroneously stated ORC 4511.19(A)(1)(j)(viii)(II) prohibits operating a vehicle while under the influence of a metabolite of a controlled substance. That statute actually prohibits operating a vehicle while having a prohibited concentration of marijuana metabolite: there is no reference to being ‘under the influence’.

Conclusion
There is a saying in the legal profession that “bad facts make bad law”. This case had bad facts. First, the victim of the offense was a trooper. While judges should be immune to the emotional impact of this fact, they certainly were aware of it. Second, it appears there was no evidence showing field sobriety tests do not detect marijuana intoxication. There should have been. Third, it appears there was no expert testimony by the defense to explain the difference between psychoactive metabolites and inactive metabolites. Perhaps if the record contained information about field sobriety tests and metabolites, the Court would have reached the correct conclusion that operating a vehicle while ‘over the limit’ for inactive metabolites cannot be the proximate cause of serious physical harm.

Field Sobriety Tests are not Mandatory
Field sobriety tests (FSTs) are not required by law, unlike alcohol/drug tests. For those tests, Ohio has an implied consent law. Ohio Revised Code section 4511.191 says any person who operates a vehicle (or is in physical control of a vehicle) on a public road (or private property used by the public) is deemed to have consented to a test of their blood, breath, urine or oral fluid for alcohol and drugs. This implied consent applies whenever a person is arrested for OVI or Physical Control of a Vehicle Under the Influence. There is no Ohio implied consent law for field sobriety testing. Drivers suspected of OVI or Physical Control have not implicitly consented to performing these tests.

There Are No Sanctions for Refusing FSTs
There are sanctions for refusing a drug/alcohol test when arrested for OVI. If an arrestee refuses a test of their blood/breath/urine/oral fluid, their driver’s license is suspended, pursuant to Ohio Revised Code section 4511.191. The length of the suspension, and the waiting period for driving privileges, depends upon the number of times that person has refused or been convicted of OVI in the past ten years.  The suspension can be from one year to five years. The waiting period for driving privileges can be from 30 days to three years. There is no driver’s license suspension for refusing to perform FSTs. Under Ohio law, there are no other sanctions imposed for refusing FSTs.

The Refusal of FSTs May be Used in Court
If a person goes to trial on an OVI charge, the prosecution may introduce evidence the person refused to perform FSTs.  The prosecution will likely argue the defendant’s refusal is evidence of their ‘consciousness of guilt’. The prosecution will say the defendant refused FSTs because they knew they would perform poorly-because they knew they were under the influence.

A defendant in that position may argue admitting evidence of their FST refusal would violate their right against self-incrimination, because the officer did not administer Miranda warnings before requesting FSTs. Ohio courts have concluded FSTs are not subject to the Miranda warnings because the tests are not ‘testimonial’ (they are not statements or factual assertions). Accordingly, Ohio courts have held a defendant’s refusal of FSTs is admissible at trial. There is an argument, based on Pennsylvania v. Muniz, the FSTs are testimonial because they “supported an inference that his mental state was confused”. However, that argument has never been addressed by an Ohio appellate court.

Assuming the prosecution is permitted to admit evidence of the defendant’s FST refusal, a defendant can rebut the prosecution’s ‘consciousness of guilt’ argument. The defendant can testify they refused to perform FSTs for a legitimate reason. Maybe the person knew they would not be able to stand on one leg or walk heel-to-toe due to a medical condition. Maybe the person knew they would perform poorly simply because they have bad balance. Maybe the person didn’t want to take a test under stressful conditions without being given an opportunity to prepare and without being told what is being graded on the test. Maybe they believed the tests were irrelevant because they do not relate to driving ability.

Conclusion
Drivers in Ohio have not implicitly consented to perform FSTs if suspected of OVI. There is no law requiring drivers to perform FSTs, and there are no sanctions for refusing them. However, a driver’s refusal will be an issue raised by the prosecution if the case goes to trial. The weight the jury gives to the refusal will depend on the circumstances surrounding it.

Ohio Law on Withdrawing a Guilty Plea
Rule 32.1 of the Ohio Rules of Criminal Procedure states: “A motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his or her plea.”

There is a distinction between withdrawing a guilty plea before sentencing and after sentencing. As the Court stated in Kadwell v. U.S.:

This distinction rests upon practical considerations important to the proper administration of justice. Before sentencing, the inconvenience to court and prosecution resulting from a change of plea is ordinarily slight as compared with the public interest in protecting the right of the accused to trial by jury. But if a plea of guilty could be retracted with ease after sentence, the accused might be encouraged to plead guilty to test the weight of potential punishment, and withdraw the plea if the sentence were unexpectedly severe.

After sentencing, a guilty plea can only be withdrawn to correct manifest injustice. Before sentencing, however, a motion to withdraw a guilty plea is to be freely and liberally granted. The defendant must have a “fair and just” reason for withdrawing the plea: more than second thoughts or a mere change of mind.

The Judge’s Decision
In this case, the defendant argued he should be permitted to withdraw his guilty plea because he received the ineffective assistance of counsel, and he had a seizure prior to the plea hearing. The judge reviewed the record and concluded defense counsel was not ineffective, and the defendant stated on the record he was satisfied with his attorney’s representation.

The judge acknowledged the medical incident which occurred before the hearing, but the judge observed the defendant appeared to fully understand the dialogue with the judge during the plea. Accordingly, the judge concluded the plea was made knowingly, intelligently, and voluntarily. The judge opined the defendant simply had a change of heart.

Defendant Appeals Judge’s Decision
The defendant recently appealed the judge’s denial of the motion to withdraw his guilty plea. The appellate court will reverse the judge ’s decision only if the judge’s denial was an abuse of discretion. An abuse of discretion occurs when a judge’s decision is unreasonable, arbitrary or unconscionable. The appellate proceedings will take several months.

Rather than hiring a new attorney to attempting to withdraw a guilty plea, a person charged with Vehicular Homicide would be wise to initially hire a lawyer with expertise in defending clients charged with Vehicular Homicide.

Proving Marijuana OVI Under the Current Law
Currently, Ohio Revised Code section 4511.19 prohibits four types of marijuana OVI:

1. Operating A Vehicle Under The Influence Of Marijuana. To prove a defendant’s guilt, the prosecution must prove the person was under the influence: marijuana affected the person in a way which would impair that person’s ability to operate a vehicle.
2. Operating a Vehicle With a Prohibited Concentration of Marijuana. The prosecution must prove the person operated a vehicle with a concentration of two nanograms of marijuana (or more) per milliliter of whole blood/serum/plasma or ten nanograms of marijuana (or more) per milliliter of urine.
3. Operating a Vehicle With a Prohibited Concentration of Marijuana Metabolite. The prosecution must prove the person operated a vehicle with a concentration of 50 nanograms of marijuana (or more) per milliliter of blood or 35 nanograms of marijuana (or more) per milliliter of urine.
4. Operating a Vehicle With a Prohibited Concentration of Marijuana Metabolite AND Under the Influence. The prosecution must prove marijuana affected the person in a way which would impair that person’s ability to operate a vehicle AND the person had a concentration of five nanograms of marijuana (or more) per milliliter of blood or 15 nanograms of marijuana (or more) per milliliter of urine.

Proving Marijuana OVI Under SB 55
If Senate Bill 55 becomes law, the types of marijuana OVI charges in Ohio will be revised in the following ways:

1. Operating A Vehicle Under The Influence Of Marijuana. The named substance will change from ‘marijuana’ to tetrahydrocannabinol (THC).  The prosecution still must prove the person was under the influence of THC.  However, a jury may infer (without expert testimony) the person was under the influence if the person has: (a) a concentration of at least two nanograms of THC per milliliter of blood; (b) a concentration of at least 25 nanograms of THC per milliliter of urine; or (c) a concentration of at least five nanograms of THC per milliliter of oral fluid.
2. Operating a Vehicle With a Prohibited Concentration of Marijuana. The prohibited substance will change from ‘marijuana’ to tetrahydrocannabinol (THC).  The prohibited concentration for whole blood will change from two nanograms to five nanograms.  There will be no ‘per se’ offense based on testing of blood serum/plasma or urine.
3. Operating a Vehicle With a Prohibited Concentration of Marijuana Metabolite. This part of the law will be deleted.
4. Operating a Vehicle With a Prohibited Concentration of Marijuana Metabolite AND Under the Influence. This part of the law will be deleted.

Admissibility of Evidence Under SB 55
If Senate Bill 55 becomes law, additional language in Ohio Revised Code section 4511.19 will address the admissibility of evidence in marijuana OVI cases.  A drug test introduced by the prosecution is subject to the Ohio Rules of Evidence.  If a drug test is admitted as evidence, the defense can introduce evidence challenging the analysis, and the defendant may rebut the inference of being under the influence with evidence or testimony, as long as the evidence/testimony complies with the Ohio Rules of Evidence.

Analysis of SB 55
Senate Bill 55 is an improvement in Ohio’s marijuana OVI law.  For reasons discussed elsewhere in this blog, Ohio should not prosecute people for driving with marijuana metabolites in their blood or urine, so it is great the new law would remove the two offenses based on marijuana metabolites.  Although there is not a scientific basis for the prohibited concentrations used in SB55, at least they are higher than they were previously, and defendants will have a more meaningful opportunity to challenge the blood test results at trial.

What is Prohibited by Ohio Law?
Ohio’s OVI statute, Ohio Revised Code (ORC) section 4511.19, prohibits operating any vehicle while ‘under the influence’ or ‘over the limit’. The statute has three essential elements which must be proven by the prosecution: (1) operate; (2) a vehicle; and (3) while ‘under the influence’ of alcohol and/or a drug of abuse or ‘over the limit’ for alcohol/drugs. Each of those elements has a legal definition.

What is a ‘Vehicle’?
‘Vehicle’ is defined by ORC section 4511.01(A).  That section states:

“Vehicle” means every device, including a bicycle, motorized bicycle, and an electric bicycle, in, upon, or by which any person or property may be transported or drawn upon a highway. “Vehicle” does not include any motorized wheelchair, any electric personal assistive mobility device, any low-speed micromobility device, any personal delivery device as defined in section 4511.513 of the Revised Code, any device that is moved by power collected from overhead electric trolley wires or that is used exclusively upon stationary rails or tracks, or any device that is moved by human power.

From this definition, we know a ‘vehicle’ is a device in/upon/by which a person or property may be transported on a road. We also know certain transportation devices are specifically included in the definition of ‘vehicle’, and some are specifically excluded.

What Devices are not ‘Vehicles’?

• A ‘motorized wheelchair’ is not a ‘vehicle’, but only if it is incapable of a speed in excess of eight miles per hour and is used by a person with a disability.
• An ‘electric personal assistive mobility device’ (which resembles a motorized wheelchair) is not a ‘vehicle’, but only if it has a maximum speed of 20 miles per hour when ridden on a paved level surface by an operator who weighs 175 pounds.
• A ‘low-speed micromobility device’ (a scooter) is not a ‘vehicle’, but only if it weighs less than 100 pounds and has an attainable speed on a paved level surface of not more than twenty miles per hour when propelled by the electric motor.
• A ‘personal delivery device’ (think electric shopping cart) is not a ‘vehicle’, but only if it has a maximum speed of ten miles per hour and is equipped with technology enabling operation of the device with or without active control by a person.
• A trolley is not a ‘vehicle’ because is it powered by overhead electric trolley wires.
• A train is not a ‘vehicle’ because it is used exclusively upon stationary rails or tracks.
• A wheelchair is not a ‘vehicle’ because it is moved by human power (and is not pedal-powered).

What Devices are ‘Vehicles’?

• A bicycle is a ‘vehicle’ and is defined as “a pedal-powered vehicle upon which a human operator sits, including an electric bicycle”.
  • This includes unicycles, tricycles, and Big Wheels.
• A ‘motorized’ bicycle (or ‘moped’) is a ‘vehicle’ and is defined as “any vehicle having either two tandem wheels or one wheel in the front and two wheels in the rear, that may be pedaled, and that is equipped with a helper motor of not more than fifty cubic centimeters piston displacement that produces not more than one brake horsepower and is capable of propelling the vehicle at a speed of not greater than twenty miles per hour on a level surface.
• An ‘electric bicycle’ is a ‘vehicle’ and is defined as “a bicycle that is equipped with fully operable pedals and an electric motor of less than seven hundred fifty watts” that “ceases to provide assistance when the bicycle reaches 28 miles per hour”.
• An automobile is clearly a ‘vehicle’, and so is a motorcycle.  Other devices which are vehicles include golf carts, lawn mowers, and motorized barstools.

Is a Toy Jeep a ‘Vehicle’?
A toy jeep is, in fact, a vehicle.  It is a device upon which any person or property may be transported or drawn upon a highway.  It is not a ‘low-speed micromobility device’ or any of the other devices specifically excepted from the definition of ‘vehicle’.

The man arrested on the Barbie Jeep reportedly concluded, “Don’t drink and drive”.  In Ohio, that means, if you are under the influence and want to meet a friend for a Slurpee, don’t do it on a vehicle, including your lawn mower, golf cart, or unicycle.

What Is a PBT?
A PBT is small roadside breath-testing device police use to estimate your blood alcohol content (BAC). Most PBTs use fuel cell technology, which detects alcohol by measuring an electrical current. When a person breathes into the device, any alcohol in the breath reacts with the fuel cell’s platinum-coated electrodes, creating a small electric current. The strength of that current is proportional to the amount of alcohol in the breath sample. The result appears on the screen within a couple of minutes.

Unlike the larger breath-testing machines used at the police station, PBTs are not designed for evidentiary use in court. They are simply investigative tools. The National Highway Traffic Safety Administration (NHTSA) cautions against putting too much weight on the results, stating: “the PBT provides direct indication of the BAC level. It does not indicate the level of the subject’s impairment. Impairment varies widely among individuals with the same BAC.”

It’s also worth noting that PBTs are known for giving inaccurate readings, especially if they haven’t been properly calibrated or if outside factors are present. Things like mouthwash, medical conditions, or ambient alcohol can skew the results. In other words, the number that shows up on a PBT may not accurately reflect your actual BAC.

Do You Have to Take a PBT?
If an officer asks you to take a breath test, it’s important to understand your rights and obligations. In Ohio, you are not legally required to submit to a PBT before you’ve been arrested. In Ohio, there is no automatic license suspension for refusing a PBT. However, an officer may still use your refusal to take a PBT, along with other observations such as odor of alcohol or slurred speech, to help justify an arrest.

The situation is different if you are asked to take a breath test after being arrested.  Constitutionally, you do not have a right to refuse a breath test after being arrested.  Under Ohio’s implied consent laws, a breath test refusal (after being arrested) results in an Administrative License Suspension being imposed immediately.

How are PBTs Used in Court?
PBTs are different from the breath-testing machines used at police stations. Those machines go through strict maintenance and calibration procedures and are approved by the state of Ohio for evidentiary use. PBTs don’t meet the same standards and are not approved for evidentiary use.  As a result, PBTs are not admissible in court as evidence for an OVI charge. In a trial, the number from the device cannot be presented to the judge or jury to prove intoxication.

PBTs are sometimes used in non-OVI cases. Any charge that involves alleged intoxication, such as Using Weapons While Intoxicated or Disorderly Conduct, could involve a PBT during the investigation. The takeaway is the same: the results can be used by the officer to make the arrest decision, but the results should not be shown to the judge or jury in a trial to prove impairment.

What To Do With This Information
Knowing how PBTs work and how they’re treated in court can make a big difference in your case. Whether you are facing an OVI or another charge involving alcohol, it’s important to remember that a PBT result might justify an arrest, but it shouldn’t be used to prove guilt at trial. If a PBT was administered in your case, a knowledgeable criminal defense attorney can help you challenge its use and protect your rights.

What is Competency to Stand Trial?
In Ohio criminal law, competency refers to a defendant’s mental condition at the time of trial.  A defendant is incompetent to stand trial if he does not understand the legal proceedings or is unable to assist in preparing his defense.  In Dusky v. United States, the United States Supreme Court set forth a test for determining competency:  “The test must be whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding-and whether he has a rational as well as factual understanding of the proceedings against him”.

The rationale behind the competency requirement is that it would be unfair to convict a person whose mental condition makes it impossible for them to understand the proceedings against them and/or assist with their defense.  Convicting an incompetent person is a violation of the person’s right to due process of law, guaranteed by the Fifth Amendment to the United States Constitution and Article 1 Section 10 of the Ohio Constitution.

Competency is different than insanity.  A person is found Not Guilty by Reason of Insanity if, as the result of a severe mental disease or defect, the person did not know the wrongfulness of his acts.  Insanity refers to the person’s mental condition at the time of the offense, while competency refers to the person’s mental condition at the time of the trial.

What Happens When the Issue of Competency is Raised?
The issue of the defendant’s competency may be raised by the defendant, the prosecution, or the judge.  When the issue is raised, the judge may order one or more examinations of the defendant.  The examiner(s) submit a report to the judge, and the judge holds a hearing.  At the hearing, the defendant is presumed to be competent unless he proves, by a preponderance of the evidence, he is incompetent to stand trial.

If, after a hearing, the judge finds the defendant is competent, the trial proceeds.  If the judge finds the defendant is incompetent, the judge must conclude whether there is a substantial probability the defendant will be restored to competency within one year.  If there is, the judge may order that the defendant undergo treatment to restore competency. If there is not, the defendant is discharged from the criminal justice system but may be institutionalized through the probate court.

Why Did the Court in State v. Henry Conclude the Defendant was Competent?
The psychologists who evaluated the defendant submitted a report concluding the defendant was competent to stand trial, although the defendant did not fully participate in the evaluation.  The defendant submitted extensive records of his mental impairments and requested a second evaluation.

The judge concluded the defendant’s records explained his mental impairments but did not address whether he was competent at the time of the hearing.  The judge found the competency evaluation was thorough and detailed, so the judge did not order a second evaluation and found the defendant competent to stand trial.  The appellate court found the judge’s finding was based on reliable and credible evidence and was therefore not an abuse of the judge’s discretion.

Is Competency an Issue Commonly Raised in OVI Cases?
Competency to stand trial is not often an issue raised in Ohio OVI cases.  However, to ensure the defendant receives a fair trial, defense lawyers, prosecutors and judges should be alert for evidence suggesting the defendant may be incompetent.