Ohio DUI Law: Is Duress An Affirmative Defense To An OVI?

Duress was asserted as an affirmative defense in Cleveland v. Chambers, 1984 WL 5006 (Ohio Ct. App. 8th Dist. Cuyahoga County 1984).  In that case, the accused was robbed in a parking lot and told to “get out of here” by the perpetrator who took the extra step of following him in a separate car.  The police found the defendant when he subsequently crashed his car.  The defendant was charged with OVI.  Even under these extreme circumstances, the court found the defendant’s apprehensions “did not create a circumstance where [he] had no control over his actions nor where he was absolutely under a superior power whose will he had to obey.” Id.  The court cited the reasoning of State v. Good, 110 Ohio App.415, 419, 11 Ohio Op. 2d 459, 83 Ohio L. Abs. 65, 165 N. E.2d 28 (10th Dist. Franklin County 1960).

The force which an accused claims compelled criminal conduct on his part against his will must be immediate and continuous and threaten grave danger to the actor’s person during all the time the act is being committed… and from which he cannot safely withdraw.

This decision is consistent with the position asserted in State v. Grimsley, 3 Ohio App.3d 265, 444 N.E.2d 1071, 27 A.L.R. 4th 1060 (1st Dist. Hamilton County 1982), which holds that Ohio’s OVI statute, O.R.C. 4511.19 makes driving under the influence a strict liability offense.  This should be read in conjunction with O.R.C. 2901.21 which requires a voluntary act before guilt can be imposed.  It reads,

2901.21 Criminal liability, culpability.

(A) Except as provided in division (B) of this section, a person is not guilty of an offense unless both of the following apply:

(1) The person’s liability is based on conduct that includes either a voluntary act, or an omission to perform an act or duty that the person is capable of performing;

(2) The person has the requisite degree of culpability for each element as to which a culpable mental state is specified by the section defining the offense.

(B) When the section defining an offense does not specify any degree of culpability, and plainly indicates a purpose to impose strict criminal liability for the conduct described in the section, then culpability is not required for a person to be guilty of the offense. When the section neither specifies culpability nor plainly indicates a purpose to impose strict liability, recklessness is sufficient culpability to commit the offense.

(C) Voluntary intoxication may not be taken into consideration in determining the existence of a mental state that is an element of a criminal offense. Voluntary intoxication does not relieve a person of a duty to act if failure to act constitutes a criminal offense. Evidence that a person was voluntarily intoxicated may be admissible to show whether or not the person was physically capable of performing the act with which the person is charged.

(D) As used in this section:

(1) Possession is a voluntary act if the possessor knowingly procured or received the thing possessed, or was aware of the possessor’s control of the thing possessed for a sufficient time to have ended possession.

(2) Reflexes, convulsions, body movements during unconsciousness or sleep, and body movements that are not otherwise a product of the actor’s volition, are involuntary acts.

(3) “Culpability” means purpose, knowledge, recklessness, or negligence, as defined in section 2901.22 of the Revised Code.

(4) “Intoxication” includes, but is not limited to, intoxication resulting from the ingestion of alcohol, a drug, or alcohol and a drug.

Thus, when a person asserted that they suffered from a personality disorder and that at the time of driving she was disassociated into another personality, the court ruled that the defendant was not acting involuntarily or unconsciously in that the person driving the car (whichever personality that was) was conscious and acting of her own volition. Grimsley, Id.  Similarly in State v. Herschner, 2000 WL 781094 (Ohio Ct. App. 4th Dist. Athens County 2000) the defendant asserted that he operated under the effect of a post-hyponotic suggestion.  The Court did not buy it, finding that the defendant acted under his own volition.  Ohio courts have also disallowed an insanity defense in a DUI case relying on the strict liability nature of the offense and Traffic Rule 10(A) which limits pleas to guilty, not guilty and no contest. State v. Ungerer, 87 Ohio App.3d 110, 621 N.E.2d 893 (9th Dist. Medina County, 1993).  The bottom line is that any defense asserting affirmatively that the accused was not acting in a volitional manner will be difficult to assert.
DUI attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver inFairbornDaytonSpringfieldKetteringVandaliaXeniaMiamisburgSpringboro,Huber HeightsOakwoodBeavercreekCenterville and throughout Ohio.  He has the credentials and the experience to win your case and has made himself the Miami Valley’s choice for DUI defense.  Contact Charles Rowland by phone at 937-318-1DUI (937-318-1384), 937-879-9542, or toll-free at 1-888-ROWLAND (888-769-5263).  For after-hours help contact our 24/7 DUI HOTLINE at 937-776-2671.  For information about Dayton DUI sent directly to your mobile device, text DaytonDUI (one word) to 50500.  Follow DaytonDUI on Twitter@DaytonDUI or Get Twitter updates via SMS by texting DaytonDUI to 40404. DaytonDUI is also available on Facebook and on the DaytonDUI channel on YouTube.  You can also email Charles Rowland at: CharlesRowland@DaytonDUI.com or write to us at 2190 Gateway Dr., Fairborn, Ohio 45324.