stock drinking driving

The end is near. Of the year 2020, that is, and we are all entitled to mutter the word “finally” to ourselves under our breath. Naturally, however, this also means the holiday season is upon us. Pandemic or not, and stay-at-home-order or not, inevitably, some people will choose to celebrate the holidays as they normally would – indulging in celebratory past times, such as drinking alcohol or perhaps, consuming other intoxicants.

An initial reminder seems prudent, however, that as much as we desire to be with our extended families during these trying times, we as Ohioans remain under an order from our governor that prohibits gatherings of 10 people or more. Our previous Cleveland Jewish News article, “What can happen if I don’t stay at home?” addressed the consequences of violating this safety-aimed provision, and those same potential consequences still apply today.

Throughout November and December, however, the celebratory revelry, whether in conformity with the governor’s order or not, will surely commence. For some, this means that Ohio’s OVI laws (also known as DUI) may be the killjoy to the holiday festivities and avoiding gatherings of 10 people or more, will be the least of their worries.

We hear it all the time, “But I only had one drink, I can drive, right?” The answer – maybe. It is a common misconception that one can only be charged with an OVI offense if they are fall-down “drunk” or slurring “intoxicated.” But such is not the law.

Instead, Ohio’s OVI laws specifically prohibit persons from operating motor vehicles while impaired, by alcohol, drugs (such as marijuana or other controlled substances, regardless if it’s prescribed), or otherwise. As discussed in a prior CJN Article, “DWH Prescription or Not, Driving While High is Still Illegal” the standard of “impairment” applies equally to driving under the influence of drugs, such as marijuana, as it does alcohol.

Two types of OVI laws exist that prohibit such impaired driving. The first is defined by a person’s impaired ability to operate a motor vehicle, period. This means that an impaired person can still be convicted of OVI even if they refuse all sobriety tests, if they are found to be too impaired to drive based upon their conduct.

The state can rely on physiological factors (e.g., odor of alcohol, glossy or bloodshot eyes, slurred speech, confused appearance) to demonstrate that a person’s physical and mental ability to drive was impaired. Furthermore, the state can rely on reckless or poor driving such as the commission of a traffic offense or, in some cases, an accident, to establish a driver’s impairment.

It is also worth noting, that the state may also submit evidence that a person refused to submit to a chemical test to determine alcohol consumption.

The second is if a person’s blood, breath or urine contains a prohibited amount of alcohol, drugs or a combination of both. The law prohibits driving with a breath alcohol content of .08 of one gram or more.

This means that yes, if having one drink, smoking or ingesting marijuana, prescription drugs or a combination of the above, compromises a person’s physical and mental ability to drive safely – they may be impaired and they may be charged with an OVI.

So, while staying safe this holiday season means wearing masks, avoiding gatherings of 10 people or more, washing your hands, etc., don’t forget to stay safe the old fashioned, pre-pandemic way, by not driving while impaired. Get a ride.


Larry W. Zukerman is the managing partner of Zukerman, Lear & Murray, Co., LPA in Cleveland and Adam M. Brown is an associate attorney.

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