OVI or DUI (Which is right?)
The current version of Ohio’s impaired driving law is O.R.C. 4511.19, is entitled “Operating vehicle under the influence of alcohol or drugs – OVI.” This is the same offense which is also known as DUI (driving under the influence), OMVI (operating a vehicle impaired), DWI (driving while intoxicated) or drunk driving. The Ohio General Assembly changed the acronym to connote the broadening of the law from simply alcohol impairment to any drug (or condition?) which may impair. The term “operate” also has a broader definition than that of “driving.” For example, if a driver is found behind the wheel of a car with the keys within his grasp, the driver is operating the car for the purposes of the Ohio statute.
Vehicle is defined at R.C. 4511.01(A) as
every device, including a motorized bicycle, in, upon, or by which any person or property may be transported or drawn upon a highway, except that “vehicle” does not include any motorized wheelchair, any electric personal assistive mobility device, and device that is moved by power collected from overhead electric trolley wires, or that is used exclusively upon stationary rails or tracks, or any device, other than a bicycle, that is moved by human power.
“Operate” is defined at R.C. 4511.01(HHH) as “to cause or have caused movement.” But, being found slumped over the wheel of a vehicle whilst the vehicle is running has been found to be operation of the vehicle, State v. Adams, 2007-Ohio-4932 (Ohio Ct. App. 3d Dist. Crawford 2007). In State v. Mackie, 128 Ohio App.3d 167, 714 N.E.2d 405 (1st Dist. Hamilton County 1998), a defendant’s car was stuck in a snowbank and was incapable of movement. His conviction was reversed due to insufficient evidence to show intoxication when the vehicle was operable. The Mackie decision offers a good discussion of the intricacies that are raised by attempting to define “operation.” What shocks many people is that the car does not have to be running to meet this broader definition as long as the driver is in the driver’s seat and in possession of the vehicles keys or starting fob. Some states have laws which encourage people who are impaired to pull over – but not Ohio.
If the car is inoperable or if the investigating agency cannot prove the vehicle was “operated,” they may charge the offense of being in physical control of a vehicle while impaired, O.R.C. 4511.194. The crime of “Physical Control” involves being in physical control of a vehicle while under the influence of alcohol or a drug of abuse. This definition means that you do not have to be driving or operating the car. 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. Physical control is often evaluated in contrast to a reckless operation charge when a reduction to OVI is offered by a prosecutor during plea negotiations.
Reckless operation in Ohio can constitute any number of offenses within the Ohio Revised Code dealing with operation of a vehicle with willful or wanton disregard to persons or property. Commonly, reckless operation is charged under O.R.C. 4511.20 (all codes sections are set forth below). There is a separate O.R.C. section dealing with reckless operation while off-road (O.R.C. 4511.201) and while on a watercraft (O.R.C. 1547.07). O.R.C. 4511.202 is Ohio’s Reasonable Control Statute.
The Ohio Supreme Court, in State v. Earlenbaugh (1985), 18 Ohio St.3d 19, 21-22, stated, “we believe that the statute simply provides two definite and clear bases upon which a finding of guilt may be premised. A person may be found guilty of violating R.C. 4511.20 if he acts willfully. Such conduct implies an act done intentionally, designedly, knowingly, or purposely, without justifiable excuse. Black’s Law Dictionary (5th Ed.1979) 1434. Or conversely, R.C. 4511.20 is violated when a person acts wantonly in disregard of the safety of others. A wanton act is an act done in reckless disregard of the rights of others which evinces a reckless indifference of the consequences to the life, limb, health, reputation, or property of others. (Citations omitted.)” The statutory definition of reckless operation can be found at Ohio Revised Code Section 4511.20 which states:
4511.20 Operation in willful or wanton disregard of the safety of persons or property.
(A) No person shall operate a vehicle, trackless trolley, or streetcar on any street or highway in willful or wanton disregard of the safety of persons or property.
(B) Except as otherwise provided in this division, whoever violates this section is guilty of a minor misdemeanor. If, within one year of the offense, the offender previously has been convicted of or pleaded guilty to one predicate motor vehicle or traffic offense, whoever violates this section is guilty of a misdemeanor of the fourth degree. If, within one year of the offense, the offender previously has been convicted of two or more predicate motor vehicle or traffic offenses, whoever violates this section is guilty of a misdemeanor of the third degree.
DUI attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in Fairborn, Dayton, Springfield, Kettering, Vandalia, Xenia, Miamisburg, Springboro,Huber Heights, Oakwood, Beavercreek, Centerville 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 onFacebook 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.