K. George Kordalis
What can a Lawyer do to fight your OVI Charge?
Updated: Jun 7, 2022
A typical way to challenge an OVI charge is by filing a motion to suppress. A general motion to suppress will shift the burden to the prosecutor to show in a hearing that the officer had a reasonable suspicion to pull you over, probable cause to arrest you, and that the field sobriety tests were done with substantial compliance with National Highway Traffic Safety Administration standards. If you took a breath test, the prosecutor will have to show that the breath test machine was in proper working order when you took the test and that it was calibrated properly.
Most suppression motions focus on the following:
(1) the stop of a vehicle, (2) the OVI investigation, and (3) the OVI arrest.
The stop of a vehicle requires reasonable suspicion that a driver has engaged in a traffic, equipment or registration violation, or some other criminal activity. Expanding the scope of the stop to investigate a driver for OVI requires a reasonable suspicion that the driver's ability to operate a car is noticeably impaired by the influence of alcohol and/or drugs. An OVI investigation begins when the officer starts to focus on impairment, i.e. he asks the driver to perform "pre-exit" divided attention tests or asks the driver to exit the car to perform Standardized SFSTs (SFSTs). An OVI arrest requires probable cause (more than reasonable suspicion but less than proof beyond a reasonable doubt) that a driver's ability to operate a car is noticeably impaired by the influence of alcohol and/or drugs.
As to each stage of the detention the applicable standard is the "totality of facts and circumstances. The trial judge looks at the "whole picture" to determine whether or not the required degree of suspicion has been established by competent and credible evidence. The court should consider the "good and the bad" based upon evidence adduced during direct and cross examination of the witnesses (which often involves the use of a “dash-cam videotape”and the“NHTSA Manual”) and the credibility of the witnesses.
After listening to the officer’s testimony, the judge will typically issue a ruling on all of the legal issues. The judge’s ruling could result in the exclusion of all, part of, or none of the evidence against you. Also, litigating a suppression hearing could also result in a favorable plea agreement.