Columbus OVI/DUI Attorney Blog
Imagine you are camping in your RV and enjoying some adult beverages. A police officer approaches your RV, and you are sitting in the driver’s seat with the keys in the ignition. The officer smells the odor of alcohol and asks you to get out for sobriety testing. The next thing you know, you are facing a charge of DUI (called ‘OVI’ in Ohio). Could this happen?
The Curious Case of Michael Wurtzberger
That is exactly what happened to Michael Wurtzberger on the coast of Cape Cod. He and a friend rented a U-Haul and used it as an RV for their fishing trip. When police approached him, he was sitting in the driver’s seat of the makeshift RV, and the keys were in the ignition. The police charged Wurtzberger with DUI, and he was convicted.
Wurtzberger’s case is now before the Massachusetts Supreme Court. The debated issue is whether he was ‘operating’ the vehicle at the time he was under the influence. To be guilty of DUI, one must be ‘operating’ the vehicle. The question is whether a person is ‘operating’ a vehicle when sitting in the driver’s seat with the keys in the ignition.
What if Wurtzberger’s Case Were in Ohio?
Ohio law (ORC 4511.19) makes it illegal to ‘operate’ a vehicle while under the influence of alcohol and/or drugs or with a prohibited concentration of alcohol and/or drugs in a person’s blood, breath, or urine. Unlike Massachusetts, Ohio legislative law has a specific definition of ‘operate’. Ohio Revised Code section 4511.01(HHH) provides, “Operate’ means to cause or have caused movement of a vehicle, streetcar, or trackless trolly”.
Wurtzberger did not cause movement of the vehicle while he was under the influence. Therefore, he did not ‘operate’ the vehicle while under the influence of alcohol and/or drugs. Accordingly, he could not be convicted of OVI in Ohio.
OVI is Not the Only Possible Charge
Ohio has a unique law which addresses this situation: Having Physical Control of a Vehicle While Under the Influence. That law (ORC 4511.194) makes it illegal to be in physical control of a vehicle while under the influence of alcohol and/or drugs or with a prohibited concentration of alcohol and/or drugs in a person’s blood, breath, or urine. ‘Physical control’ means being in the driver’s position of the front seat of a vehicle and having possession of the vehicle’s ignition key or other ignition device.
Wurtzberger was seated in the driver’s position of the makeshift RV and did have possession of the vehicle’s ignition key. Therefore, he was in physical control of the vehicle, and he was apparently under the influence of alcohol. Accordingly, he could be convicted of Physical Control Under the Influence.
The penalties for Physical Control Under the Influence are less serious than the penalties for OVI, but they are not trivial. A person convicted of this offense faces a driver’s license suspension for up to one year, a jail term of up to six months, a fine of up to $1,000, and probation for up to five years. The offense is a non-moving violation and does not result in points being assessed against the defendant’s driver’s license.
The penalties for a first-offense OVI conviction include a driver’s license suspension for up to three years, a jail term of up to six months, a fine of up to $1,075, and probation for up to five years. The offense is a moving violation and results in six points being assessed against the defendant’s driver’s license.
Prosecutorial Discretion
In Ohio, a person in the position of Michael Wurtzberger could not be convicted of OVI but could be convicted of Physical Control Under the Influence. The rationale behind the Physical Control law seems to be that we want to punish people who engage in the conduct, due to the potential danger they cause, but we do not want to punish them to the same extent as people who operate a vehicle under the influence.
Should a person be convicted of Physical Control when the person is camping? Absent evidence the person intended to operate the vehicle while under the influence, the answer is no. Thankfully, police officers are given discretion in charging offenses, and prosecutors are given discretion to dispose of a case in the interest of justice.