Physical Control and Prior Convictions

Can a Prior Conviction for Physical Control Enhance an OVI charge?

In State v. Justus (8th Dist.), 2009-Ohio-137, the Eight District Court of Appeals held that the defendant’s conviction of fourth degree felony OVI, enhanced by a prior physical control violation cannot stand because previous case law defined physical control as not an equivalent offense to OVI under the 2004 law.  Physical control is less than operation and may not be used to enhance a current OVI charge.

PRACTICE POINT: The fact that the prior may not be used to enhance OVI does not mean that it will go unnoticed by a prosecutor in plea negotiations, nor does it mean that a judge has to ignore the prior in fashioning a sentence.  Prior alcohol convictions, of any type are often important to Ohio judges.  The prepared attorney will take steps to mitigate the prior conviction.

This video explains what a physical control option can mean for your case.