Physical Control of a Vehicle While Intoxicated (O.R.C. 4511.194) is the offense of being intoxicated while in physical control of a car, but not having caused the vehicle to move. If you are under the influence and the prosecutor can prove that you “operated” your car and were not simply in “physical control” of your car, you may face a charge of OVI/DUI (drunk driving). Thus the legal analysis will turn on whether on the prosecutor can prove you “operated” your car. “Operation” includes causing or having caused a vehicle (such as a car, truck, RV, bicycle or motorcycle) to move. See Cincinnati v. Kelley, 47 Ohio St. 2d 94, 351 N.E.2d 85 (1976).
So what does the prosecution need to prove to sustain a charge of Physical Control? The prosecution must prove two elements to meet their burden. First the accused must be under the influence. “Under the influence” is defined as being “appreciably impaired” by the effects of alcohol, a drug of abuse or a combination of the two. Secondly, the state must prove that the accused was in “physical control” of the vehicle. “Physical control” is defined as being in the driver’s position of the front seat of a vehicle while having possession of the ignition key. Under the statute, having the keys within reach will satisfy the definition of having “physical control.” The physical control statute was essentially designed to “reward” or rather, not punish as severely, the person who drinks too much (or uses drugs of abuse) and then gets into their car, but decides not to actually drive. In Cleveland v. Dumas, 2013-Ohio-4600, the 8th District Court of Appeals ruled that convictions of OVI and driving while under a license suspension were in error were officer testified that he never saw the defendant in the vehicle and therefore there was insufficient evidence to show that defendant actually operated a vehicle, a required element.
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.
Sleeping it off; Is that a violation of the Physical Control statute? If you are in the front seat with the keys in the ignition or within your reach… YES! State v. Gill, 994-Ohio-403. 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 impaired person 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?
However, after the Gill decision, the legislature defined the term “operate” in SB 123, effective January 1, 2004. State v. Wallace, 2006-Ohio-2477, at ¶ 8; R.C. 4511.01(HHH). The term “operate” has been amended, since it was first defined, and the applicable definition of the term includes, “[o]perate means to cause or have caused movement of a vehicle, streetcar, or trackless trolley.” R.C. 4511.01(HHH). The State can still use the fact that the car was running and the accused was behind the wheel as “circumstantial evidence” of operation. They can attempt to sustain a conviction for drunk driving (OVI) if they prove “operation.” As is set forth in Wallace, Id. “[c]ircumstantial evidence and direct evidence have the same probative value. State v. Jenks, 61 Ohio St.3d 259, at paragraph one of the syllabus; State v. Bridges, 3d Dist. No. 1-06-30, 2007-Ohio-1764, at ¶ 28, citing Jenks, supra.; State v. Mitchner, 3d Dist. No. 15-05-07, 2005-Ohio-6412, at ¶ 18. “When the state relies on circumstantial evidence to prove an essential element of the offense charged, there is no need for such evidence to be irreconcilable with any reasonable theory of innocence in order to support a conviction.” Jenks, 61 Ohio St.3d, at paragraph one of the syllabus.
Physical Control/DUI Attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in the Xenia and throughout Ohio. He has the credentials and the experience to win your case and has made himself Xenia’s choice for drunk driving defense. Contact Charles Rowland by phone at (937) 318-1384 or toll-free at 1-888-ROWLAND (888-769-5263). If you need assistance after hours, call the 24/7 DUI Hotline at (937) 776-2671. You can have DaytonDUI at your fingertips by downloading the DaytonDUI Android App or have DaytonDUI sent directly to your mobile device by texting DaytonDUI (one word) to 50500. Follow DaytonDUI on Facebook, @DaytonDUI on Twitter, YouTube, Tumblr, Pheed and Pintrest or get RSS of the Ohio DUI blog. You can emailCharlesRowland@DaytonDUI.com or visit his office at 2190 Gateway Dr., Fairborn, Ohio 45324. “All I do is DUI defense.”
Physical Control/Ohio DUI Attorney information and other city-specific info at the following links:
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