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If you have been charged with a DUI but were not “operating” a vehicle by driving it you may be able to have the charged reduced to a physical control. Physical control is not a legal fiction and can be found in the Ohio Revised Code.
If you were not driving the car you could still be convicted of an OVI (Operating a Vehicle while Intoxicated). If you are under the influence and have “operated” a vehicle then you have committed an OVI even if you never drove the car.
It is important to note that in Ohio an OVI applies to more than just motorized vehicles. It also includes bicycles, horse-drawn carriages, and really any other type of “vehicles.” If you are intoxicated the best thing you can do is not to try to operate any type of vehicle.
How Does The “No Driving” Defense Work?
If you are in the vehicle but not driving, then this is when you would use this defense. In certain cases, it could help you. There are two ways you can get arrested even if you were not “driving” if you were under the influence.
- Operation of the vehicle includes turning over the ignition key.
- “Physical control” is when you are in the driver’s seat of the vehicle and are in possession of the ignition key. This is not the same as an OVI.
What Is The Difference Between “Physical Control” And An OVI?
Both are alcohol-related first-degree misdemeanors. Getting an OVI conviction is worse than getting a physical control conviction. The court may give you lighter penalties for this; mainly because you were not putting others at risk by driving the vehicle. Being convicted of physical control will not enhance your sentence if you are later convicted of an OVI, whereas your sentence will enhance if you have two OVIs. Physical control carries no mandatory jail time. Judges will often sentence you to Driver’s Intervention Programs just like they do in DUI cases, however.
An example of an OVI would be an intoxicated person leaving the bar that decides to “sleep it off” in their vehicle. Generally, what happens is the person starts the car, to start the air conditioner or heater, so the vehicle is actually running, and then he goes to sleep. By starting the car, you have operated a vehicle while intoxicated.
An example of a physical control violation is an intoxicated person leaving the bar that decides to “sleep it off” in their vehicle. However, one need not have the car running or even have the keys in the ignition in order to be in violation, the person must only be in reach of the ignition key while inside the vehicle to be considered in physical control of the vehicle.
For either conviction, the prosecutor still must prove must prove beyond a reasonable doubt that you were operating or in physical control of a vehicle.
Does The “No Driving” Defense Actually Help?
Yes! Being charged with an OVI is far worse then getting a physical control conviction or no conviction. The key is your story must match up to the evidence and the facts of the case.
If it is obvious that you drove your car or there are eyewitnesses, then you cannot simply lie. The “no driving defense” could not help you in this type of situation.
The judge and the jury will look at the “totality of the circumstances” to determine whether the defendant was operating the vehicle or just in physical control. The following factors will be taken into consideration:
- The location of the vehicle
- Where the driver was (laying in the back seat or the front seat)
- Whether the driver was awake or asleep
- The location of the car keys, and
- Whether the engine was running.
How Can I Prove That I Wasn’t Driving?
Unfortunately, this is not as easy as you would think. But do not worry we will help with that. Whether you drove the vehicle or not is ultimately a question of fact for the jury to decide. Proof, either way, can be made by either circumstantial or direct evidence.
Direct evidence could include:
- Eyewitness testimony
- Photographs of you behind the wheel
- Your statements of admission to driving.
Circumstantial evidence is used when there is no or very little direct evidence that you were driving. It usually consists of a combination of circumstances. The key question becomes whether the jury could reasonably conclude from the totality of the evidence that:
1. Someone drove the vehicle, and
2. That, someone, was you.
It could be obvious that someone drove the vehicle. For example, if the vehicle was parked in the middle of the street then someone had to of driven the vehicle. The harder part to prove is likely that that someone was in fact you.
We are here to help. Give us a call and we will see if the “no driving” defense could be beneficial in your case.
