New OVI Law in Ohio allows Oral Fluid Tests and Increases Impaired Driving Penalties
Passed by the Ohio Legislature in July 2025 and signed into law shortly after, House Bill 37, also known as Liv’s Law, makes some substantial changes to how impaired driving is enforced across the state. This came in response to Ohio’s OVI-related traffic fatalities which had surged nearly 23% between 2019 and 2020. Along with this, repeat offenders make up over 40% of OVI convictions, far exceeding national averages. This law was motivated by the tragic death of 22-year-old Olivia “Liv” Wright in 2020 and was championed by her parents, who pressed lawmakers to impose stricter penalties on repeat impaired drivers.
Advocates of the legislation argued that previous laws did not adequately reflect the evolving landscape of drug use and impaired driving, particularly with the rise of opioid abuse and legal marijuana. Supporters stressed that Ohio needed more modern, efficient, and flexible tools to detect impairment, while critics raised concerns about scientific accuracy and civil liberties. Despite the debate, the bill passed with strong bipartisan support and has since gone into effect, reshaping the legal terrain for OVI (Operating a Vehicle Impaired) offenses in Ohio.
What is Liv’s Law (HB 37)?
House Bill 37 introduces several major changes to Ohio’s impaired driving laws, the most notable of which is the authorization of oral fluid drug testing during traffic stops. This allows law enforcement officers to collect a saliva sample from a suspected impaired driver at the roadside and test it for the presence of substances such as marijuana, cocaine, methamphetamine, and opioids. The law permits officers to administer these tests when they have probable cause to believe the driver is under the influence.
Importantly, the bill also outlines procedural safeguards for handling and storing oral fluid samples and requires that testing devices meet standards approved by the Ohio Department of Health. Additionally, the bill includes new penalties for refusing to submit to oral fluid testing, similar in structure to Ohio’s existing penalties for refusing breathalyzer or blood tests. These provisions make refusal a violation in itself, and the consequences can include license suspension and evidentiary use of the refusal in court.
Along with that, the bill creates a tiered sentencing for aggravated vehicular homicide. Under Liv’s Law outlines a four-tier system based on prior convictions, now counting any OVI, vehicular assault, involuntary manslaughter, or homicide offenses within a 20-year look-back period, increasing the mandatory minimum prison term up to 20 years, depending on prior conviction history.
How will Liv's Law affect OVI cases?
Before HB 37, most OVI cases in Ohio relied heavily on observations from field sobriety tests, breathalyzer results, or, in more serious cases, blood tests administered after an arrest. The challenge for prosecutors and law enforcement was proving drug impairment, which often leaves no traceable odor and may not produce symptoms as outwardly visible as alcohol intoxication. For example, a driver suspected of opioid impairment might not register any alcohol on a breathalyzer, and unless they were taken in for a time-consuming blood test, it was difficult to support criminal charges. With the passage of Liv’s Law, officers now have the ability to administer oral fluid tests that can provide rapid drug screening results during the stop itself.
This changes not only how investigations are conducted, but also how charges are prosecuted. Suppose a driver was pulled over late at night for weaving and slurred speech. Before, the absence of alcohol on a breath test might leave officers unable to investigate further. Under the new law, officers can conduct an oral fluid test on the spot. If the results indicate recent use of fentanyl or methamphetamine, the officer can move forward with an arrest and the prosecution gains new evidence of impairment. Conversely, defense attorneys now have new scientific procedures to challenge, especially when roadside test results form the cornerstone of the state's case.
In addition to introducing oral fluid testing, House Bill 37 includes several other significant provisions that reshape how Ohio handles impaired driving offenses, particularly by increasing penalties and tightening administrative consequences for refusal and repeat violations. One of the key changes is the expansion of penalties for individuals who refuse to submit to chemical testing, whether that be breath, blood, or oral fluid, when law enforcement has established probable cause for an OVI.
Under the new law, refusals can lead to longer administrative license suspensions and harsher penalties upon conviction. For example, a first-time refusal now triggers a one-year license suspension, up from the previous 90-day minimum. In addition, that refusal can be introduced as evidence in court, potentially strengthening the prosecution’s case by suggesting the driver was attempting to hide impairment.
Liv’s Law also enhances penalties for repeat offenders. Drivers with prior OVI convictions on their record now face more severe sentencing enhancements, including mandatory minimum jail time, longer ignition interlock requirements, and extended license suspensions. The legislation effectively raises the stakes for anyone with a history of impaired driving, signaling that Ohio courts will no longer treat repeat OVIs with leniency. This is especially significant given the high rates of repeat offenses in impaired driving cases statewide. Additionally, HB 37 encourages participation in substance abuse treatment programs as part of sentencing, especially for repeat offenders. Judges are given more discretion to order treatment as a condition of probation, recognizing that many OVI offenses are rooted in underlying addiction.
One of the most consequential changes introduced by Ohio House Bill 37 is the implementation of tiered sentencing for aggravated vehicular homicide. Under the previous legal framework, sentencing for this serious offense often lacked consistency and in some situations, failed to adequately reflect the degree of circumstances surrounding the crash. Liv’s Law remedies this by creating a tiered structure that assigns harsher penalties to more aggravated forms of vehicular homicide, particularly those involving repeat OVI offenders or drivers with extremely high blood alcohol concentrations. The intent behind the reform is to better align sentencing with the seriousness of the behavior and to serve as a stronger deterrent to impaired driving.
For example, under the new law, a person convicted of aggravated vehicular homicide while driving under the influence may now face enhanced penalties if they have a prior OVI conviction within the last ten years, or if their BAC was significantly above the legal limit. These higher-tier offenses can lead to longer mandatory prison terms and a more severe felony classification. In contrast, first-time offenders or cases involving mitigating circumstances may fall under a lower tier with comparatively lighter sentencing. This structured approach gives prosecutors and judges more clarity and flexibility in sentencing, so the harshness of the sentence more accurately reflects the severity of the offense.
Challenging Oral Fluid Drug Tests
The oral fluid testing authorized by Liv’s Law works by collecting a saliva sample with a swab device, which is then either tested immediately using a portable analyzer or sent to a laboratory for confirmation. The portable device can detect the presence of various controlled substances within minutes, giving officers immediate feedback. It’s important to note that these tests do not measure active impairment in the same way that a blood alcohol concentration (BAC) test does. Rather, they detect the presence of drugs that may contribute to impairment.
Under House Bill 37, the results of oral fluid drug testing cannot be used as the sole basis for a "per se" OVI (Operating a Vehicle Impaired) charge. In Ohio, a “per se” OVI offense occurs when a driver’s breath, blood, or urine contains a concentration of alcohol or drugs at or above a legally defined threshold, such as a BAC of 0.08% or specific levels for controlled substances. These thresholds create an automatic presumption of impairment, even if there’s little other evidence that the person was driving unsafely. However, because there is currently no established legal limit for alcohol or drugs in oral fluid under Ohio law, oral fluid test results cannot trigger a per se OVI on their own.
Instead, these test results may only be used alongside other forms of evidence, such as erratic driving, field sobriety tests, or officer observations, to support a traditional OVI charge based on actual impairment. This distinction is critical for defense attorneys, as it opens the door to greater scrutiny of oral fluid test reliability, methodology, and interpretation. Unlike breath, blood, or urine tests in per se cases, which are more rigid and harder to challenge due to codified chemical thresholds, oral fluid tests allow more room for contesting the results, how the sample was handled, or whether it truly reflects impairment at the time of driving.
Multiple scientific studies highlight the limitations of current oral fluid testing devices. For instance, a 2023 analysis published in PubMed examined both in-person and remote saliva screening and found significant variability in sensitivity depending on the substance: while detection was strong for methadone and cocaine, sensitivity for amphetamines and cannabis was markedly lower. This inconsistency in the results to oral fluid drug tests gives credence to the claim that they may not be entirely reliable in a legal setting. Another analytical study evaluating devices revealed unacceptable performance for detecting cannabis, with sensitivity rates below 13 percent for THC while better for other drugs. In practical terms, a driver who consumed cannabis hours ago could still drive safely, yet test positive or negative depending on the device's flaws, neither result reliably indicates impairment.
Along with this, major forensic authorities including the National Highway Traffic Safety Administration have expressed skepticism about immunoassay-based screening used in oral fluid devices, citing issues of cross-reactivity, lack of specificity, and potential for both false positives and negatives. For THC in particular, Ohio’s most common drug-of-interest in OVI cases, the concentration in oral fluid does not correspond to the concentration in blood nor to actual impairment. Second‑hand exposure or residual oral contamination can trigger a positive result even long after impairment has subsided. And because no standardized legal thresholds exist for oral fluid drug levels, jurisdictions are left interpreting presence rather than impairment.This opens the door to several legal questions and challenges. A driver might test positive on an oral fluid screen even though they were not actually impaired while driving. Defense attorneys can use this gap to argue that test results are not necessarily proof of criminal behavior. Additionally, because these tests are relatively new, questions about their reliability, calibration, and admissibility in court are likely to arise. As with breathalyzers in the past, the defense may challenge the training of officers administering the tests, chain of custody procedures, or the scientific foundation of the device used. If any of these pieces of the test are not up to standard, the test could potentially be thrown out in court, limiting the evidence that the prosecution has access to.
Common Defenses to OVI Charges
Even with the new tools provided by House Bill 37, many of the most effective defenses to OVI charges remain relevant, and in some cases, even more important. One common defense involves questioning the initial traffic stop. If an officer lacked reasonable suspicion to initiate the stop in the first place, then any evidence obtained afterward, such as a positive oral fluid test, could be ruled inadmissible in court. For instance, if an officer pulled a driver over based on a vague suspicion rather than a specific traffic violation, the defense could argue that the entire stop was unconstitutional.
Another defense centers on the reliability of the testing process. Suppose a driver was stopped and tested positive for THC in their saliva, but the device used hadn’t been properly calibrated or the sample was mishandled. In such a case, an experienced defense attorney could file a motion to suppress the test results based on lack of scientific reliability. Similarly, in cases where symptoms of impairment may have been caused by a medical condition rather than substance use, such as fatigue, anxiety, or a neurological disorder, the defense can bring in medical experts to explain alternative explanations for the officer’s observations.
Finally, the defense might challenge whether the presence of drugs actually proves impairment. Just because a substance is detectable doesn’t necessarily mean it rendered the person unable to operate a vehicle safely. This is especially true for habitual users of certain prescribed medications, who may have a baseline level of the drug in their system without being impaired. These nuances will become more critical as courts begin to see more OVI cases built around oral fluid tests under HB 37.
Hire an OVI Attorney in Ohio
If you or a loved one has been charged with an OVI offense in Cincinnati Ohio, or the surrounding areas, it is important to hire a criminal defense attorney immediately. The Wieczorek Law Firm can provide the legal assistance you need to ensure your case is in the right hands, and you will be getting the best representation that you deserve.
Call (513) 317-5987 to request a free consultation.
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