Arrested for Physical Control?

May 20th, 2011 by DaytonDUI Leave a reply »

What is a Physical Control charge?

Pursuant to Ohio Revised Code 4511.194 (effective Jan. 1, 2005), it is illegal to be in physical control of a vehicle while under the influence. “Physical Control” is defined as being in the driver’s seat of a car and having possession of the vehicle’s keys.  Physical Control does not require that the vehicle have ever been driven or even started.  Under the statute, having the keys within reach will satisfy the definition of having “physical control.”   The crime is one of potentiality, (i.e. you are so close to driving that we will punish you) and speaks to the growing neo-prohibitionist tendencies in Ohio law.  What action, other than being intoxicated, is really being punished here?  If the prosecution can prove that you were causing movement or had caused movement or of the vehicle while you were under the influence of alcohol or over the “legal limit,” you can be convicted of OVI.  If movement of the vehicle cannot be proven, you cannot be convicted of OVI.   However, if it can be proven that you were in the driver’s seat of a vehicle, in possession of the ignition key and either under the influence of alcohol or test over the legal limit, you can be convicted of being in “physical control” of a vehicle while under the influence of alcohol or drugs.

This author has serious concerns with the public policy implications of this law.  For instance, in a true “Physical Control” scenario, the defendant has done everything that we would hope that someone who has had too much to drink would do.  The drunk staggers from the bar to his or her car and chooses not to drive.  Ohio does not have a “safe harbor” law, meaning that even if a person who is intoxicated is parked without the keys in the ignition, he or she may still be arrested for DUI if the keys are sitting nearby, such as on the dashboard or passenger seat.  If you are choosing to sleep it off on a night that is freezing, you had better not turn on the heater because that is a violation of the statute.  In addition, Ohio’s Implied Consent law allows for an automatic license suspension (an immediate suspension prior to a finding of guilt) if you are implicated in a physical control charge.  RC 4511.191(A)(2) provides the implied consent trigger for a DUI or physical control ALS:  ”Any person who operates a vehicle . . . upon a highway or any public or private property used by the public for vehicular travel or parking within this state or who is in physical control of a vehicle . . . shall be deemed to have given consent to a chemical test . . . .”  Does this statutory scheme actually encourage a person to take the chance on making it home, because they will incur penalties whether they drive or not?

Physical Control is a first degree misdemeanor in Ohio which is punishable by a maximum $1,000.00 fine, a license suspension of up to one year and a maximum jail sentence of six (6) months.  Physical Control is preferable to some commercial drivers because it may not count as a “major incident” for CDL purposes.  Unlike a reckless operation charge (O.R.C. 4511.20), Physical Control carries no “POINTS” on your Ohio license.  The court may also require the defendant to attend a 3-day weekend intervention alcohol education course.  Another major benefit of the Physical Control statute (which is also true of Reckless Operation) is that whereas prior OVI convictions trigger enhanced minimum penalties for future OVI convictions, prior physical control convictions would not trigger those enhanced penalties for future OVI convictions.  For example, if you are convicted of OVI and you have had a prior OVI conviction within the last six years, your minimum jail time will jump from three days to ten days.  If you are convicted of OVI and have a prior physical control conviction, the minimum jail time is still only three days.

Ohio DUI attorney Charles M. Rowland II has represented people accused of drunk driving, reckless operation and physical control for over fifteen (15) years.  If you find yourself facing the possibility of loss of license, jail time, increased insurance costs or the stigma of an alcohol related conviction, CONTACT Charles M. Rowland II at (937) 318-1DUI [318-1384] today.  You can also sign up for text alerts and OVI checkpoint information at this blog, or text DaytonDUI (one word) to 50500 for immediate contact information.  Charles Rowland dedicates his practice to the defense of the accused drunk driver, “All I do is DUI defense.”

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