One recent Ohio OVI case –State v. Robertson, 2014-Ohio-5389 – is interesting because the front seat passenger – and not the driver – was charged with OVI. The prosecution’s argument was that because the intoxicated passenger flicked the driver’s cigarette out of her hand and onto her lap – causing her to crash – the passenger “operated” the vehicle while intoxicated.
The court disagreed. Although a passenger reaching over and grabbing the steering wheel might be considered “operation,” knocking a cigarette out the of the driver’s hand is too remote and doesn’t demonstrate any intent to cause the car to move. Thus, the OVI conviction was reversed and the OVI charge dismissed.
The Prosecution’s Version of Events
As a witness was exiting a parking lot, he saw a car that had driven off the road and was stuck in a ditch. The car had its flashers on and was gunning the engine trying to get out of the ditch. The only person in the car was the defendant. The witness said the defendant smelled like alcohol and was laying in between the front and back seat.
The witness took the keys out of the ignition and gave them to the defendant. He then helped the defendant out of the car as he seemed to be injured. The defendant told the witness he intended to run.
As police arrived, the defendant walked away from the scene. The witness described his clothes and pointed in the direction he had walked. Officers apprehended him about two blocks away. The defendant was belligerent, non-cooperative, and had slurred speech.
They were unable to administer field sobriety tests because the defendant was screaming and acting out violently and cursing at the officers.
The Defense’s Version of Events
The defense presented a much different version of events. The defendant’s girlfriend testified that she was driving at the time of the accident. Because the defendant was drunk, she gave him a ride home. They got in an argument on the way home. The defendant flicked flicked a cigarette out of the driver (his girlfriend’s) hand and it came to rest between her legs.
She then veered off the road and crashed her car in the ditch. She turned on her emergency lights and began to walk to her sister’s house where she hoped to contact AAA.
Can a Passenger be Convicted of OVI?
The judge believed the girlfriend’s testimony – that she – and not the defendant – had been driving.
However, the prosecution nonetheless argued that the defendant should still be be convicted of OVI given his actions as a passenger. In one prior Ohio case, for example, a front seat passenger was been found guilty of OVI where they reached over and grabbed hold of the steering wheel causing a crash.
“Operation” under the Ohio OVI statute means “to cause or have caused movement of a vehicle * * *.” Id. at ¶ 11.
One appellate district found that based on this definition, the Ohio General Assembly did not intend to limit operation to just the driver. Rather, anyone who “causes the movement of a motor vehicle while intoxicated” can be found guilty of OVI.
Nonetheless, the court here found that grabbing the steering wheel and flicking a cigarette at the driver are two very different things. Knocking a cigarette out of the driver’s hand is too remote to constitute “operation” under the statute.
Grabbing the steering wheel while a car is in motion is aimed directly at causing the car to move. Knocking a cigarette out the driver’s hand is not. The defendant’s intent here was, at worst, to knock the cigarette out of his girlfriend’s hand — not to crash the car.
Thus, the conviction for OVI was reversed.