Copyright 2019 Dayton DUI.
All Rights Reserved.

9:00 - 17:00

Our Opening Hours Mon. - Fri.



OVI Menu

Presumption of Innocence? Not For OVI

Dayton DUI Attorney Charles Rowland > DUI Law  > Presumption of Innocence? Not For OVI

Presumption of Innocence? Not For OVI

The History of The Presumption of Innocence

The presumption of innocenceEi incumbit probatio qui dicit, non qui negat.

It is the principle that one is considered innocent unless proven guilty. It dates back to the very foundations of western jurisprudence. The sixth century Digest of Justinian provides, as a general rule of evidence:”Proof lies on him who asserts, not on him who denies.”

The presumption requires that the prosecution has the obligation to prove each element of the offense. They must prove each beyond a reasonable doub. The accused bears no burden of proof. This is often expressed in the phrase innocent until proven guilty, coined by the English lawyer Sir William Garrow (1760–1840). Garrow insisted that accusers be robustly tested in court. An objective observer in the position of the juror must reasonably conclude that the defendant almost certainly committed the crime.

presumption of innocence

The Universal Declaration of Human Rights, article 11, states: “Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.” And, although the Constitution of the United States does not cite it explicitly, presumption of innocence is widely held to follow from the 5th, 6th, and 14th amendments. See also Coffin v. United States and In re Winship.

Ohio And The Presumption of Innocence

So surely, you are presumed innocent if you are charged with OVI, right? Well Ohio has done two things that undermine that protection. First, they have made driving with a concentration of alcohol above over .08 percent BAC a strict liability offense. Yes. Ohio law presumes that, if you operate a vehicle and are found to be at or over the “legal limit,” you are guilty of OVI. It is up to your OVI attorney to argue against this presumption of guilt. If it is proven that the alcohol level in your system is at or over the legal limit, you can be convicted of OVI even if you show no other signs of being under the influence.

Ohio has also developed a civil administrative license forfeiture which rests upon a presumption that you have agreed to take a test of your blood, breath or urine if a law enforcement officer has probable cause to believe that you are impaired. The Administrative License Suspension (ALS) is difficult, if not impossible, to overturn upon being charged with an OVI. Like its counterpart above, this undermines the presumption of innocence. It permits the government to take away the important right. The right  (instead of privilege) of driving. If you refuse to allow law enforcement to measure the amount of alcohol in your breath, blood or urine, you still may be convicted of OVI based on evidence of impairment such as poor driving performance, alcohol odor, slurred speech, red and glassy eyes, and staggering and poor performance on field sobriety tests.

The Crime of Refusing To Take A  Test

Further, under certain circumstances, Ohio law has made it a criminal offense to refuse to submit to testing once you have been arrested for OVI. See O.R.C. 4511.19(A)(2), which states:

(2) No person who, within twenty years of the conduct described in division (A)(2)(a) of this section, previously has been convicted of or pleaded guilty to a violation of this division, a violation of division (A)(1) or (B) of this section, or any other equivalent offense shall do both of the following:

(a) Operate any vehicle, streetcar, or trackless trolley within this state while under the influence of alcohol, a drug of abuse, or a combination of them;

(b) Subsequent to being arrested for operating the vehicle, streetcar, or trackless trolley as described in division (A)(2)(a) of this section, being asked by a law enforcement officer to submit to a chemical test or tests under section 4511.191 of the Revised Code, and being advised by the officer in accordance with section 4511.192 of the Revised Code of the consequences of the person’s refusal or submission to the test or tests, refuse to submit to the test or tests.

It is variously consequential if you are a CDL holder or if you are under 21 years of age, and refusal may signify a crime in Ohio. So, if you corner me at a party and ask “should I blow,” be ready for a lengthy explanation. My wife calls it going “Dayton DUI.”

Charles Rowland


Charles M. Rowland II has been representing the accused drunk driver for over 20 years. Contact him at (937) 318-1384 if you find yourself facing a DUI (now called OVI) charge.

No Comments

Leave a Comment