Usually when you are charged with DUI, you are actually being charged with two, not one, violations of law. The two charges are like twin brothers, but they are not identical twin brothers. They are fraternal twins. The first violation you are charged with is R.C. 4511.19(A)(1). For the purposes of this discussion, this first charge will be referred to from here on as an “(A)(1)” or “impaired driving” charge. Under this violation, you are accused of operating a vehicle within the State of Ohio while being under the influence of alcohol or drugs to the extent that your driving was appreciably impaired. This is what the pre-1983 statute looked like, and continues to look like today.
The 1983 change in the law gave birth to the second brother in the charging structure, R.C. 4511.19(A)(3). For the purposes of this discussion, this second charge will be referred to from here on as an “(A)(3)” or “per se” charge. Under this violation, you are charged with operating a vehicle within the State of Ohio while having a blood alcohol level in excess of .10 as measured in your breath (other subsections relate to blood and urine content of alcohol, but breath testing is the most common).
The 1983 amendments also increased the penalties for DUI offenses. They further brought into law Ohio’s Implied Consent Law (more about that in another chapter).
The Supreme Court of Ohio has noted that a prosecution of an individual for a DUI violation pursuant to (A)(3) differs from a prosecution of an individual for a DUI violation pursuant to (A)(1).[1] The difference between these two statutory provisions is that (A)(3), is a per se offense for which the critical issue at trial is the accuracy of the test, not the behavior of the accused.[2] (A)(1), is not a per se offense, and the critical issue in a trial brought pursuant to this provision is the behavior of the accused.
In simpler terms, let’s assume you are a professional race car driver. Even if you can prove that you can drive better than 99.9 percent of the sober population when you have a .08 blood alcohol content, it is still a crime to do so under the per se statute.
It’s tough for the prosecutor to prove beyond a reasonable doubt that a person’s ability to drive has been appreciably impaired. Prosecutors are more willing to plea bargain when they have a tough and time-consuming case ahead of them whose outcome is uncertain. So the Ohio Legislature sought out an easier method to convict those accused of drunk driving. Under 4511.19(A)(3), if test over .08, you are automatically guilty. It is not a defense to say that because of your high tolerance, a .08 did not affect your driving. All the prosecutor needs to produce before the jury is a cop and an evidence ticket from the BAC Datamaster and you are cooked.
[1] Newark v. Lucas (1988), 40 Ohio St. 3d 100 at 103
[2] Id. at 103
