No OVI 1

In Cleveland v. Dumas, Defendant was charged with driving under the influence of alcohol or drugs, driving under suspension, failure to comply, and failure to wear a seat belt.  He was charged under the Cleveland CIty Ordinance, which is substantially the same as the Ohio OVI laws.  He pled not guilty.

Counsel filed a motion to suppress, arguing that he was stopped for a violation for failure to comply with a lawful order, and “a private person has no authority to arrest for a misdemeanor offense.”

At the motion hearing, the officer testified that at around 2:30 p.m., he responded to a call to assist an off-duty uniformed officer who was directing traffic at a construction site.   When he arrived, the off-duty officer had stopped defendant’s vehicle and was assisting the defendant to stand up.

The officer helped defendant walk to the police car, obtained ID from him, and conducted a LEADS check. Upon receiving the LEADS report, the Officer, who was not LEADS certified, determined that the defendant’s driver’s license had been suspended in 2007 for failure to obtain insurance, and that his license had never been reinstated.

The defendant refused the breathalyzer test.

The OVI statute provides that “no person shall operate any vehicle” if the person is under the influence of alcohol, a drug of abuse, or alcohol and a drug of abuse.

An operator is defined as “every person who drives or is in actual physical control of a vehicle * * *.”   R.C. 4511.194(A)(2) defines “physical control” as “being in the driver’s position of the front seat of a vehicle and having possession of the vehicle’s ignition keyor other ignition device.”

The Ohio Supreme Court held in State v. Cleary, 22 Ohio St.3d 198, 199, 490 N.E.2d 574 (1986), that the operation of a motor vehicle within the contemplation of R.C. 4511.19(A) is a broader term than driving.  Under that case, being in the driver’s position in the front seat of the vehicle with the key in the ignition while under the influence of alcohol or any drug of abuse can be found in violation of the OVI statute.  So, when the car is in park, “operation” happens where the key is found in the ignition and the offender is in the driver’s seat. See,

On the other hand, the term “operate,” means “to cause or have caused movement of a vehicle * * *.” R.C. 4511.01(HHH). Thus, in order to be found guilty of an OVI, movement of the car must be found by the judge or jury.

In this case, there was no testimony from the off-duty police officer.  Rather, the only witness was the officer that showed up after the defendant had already been stopped and was outside of his car.  Thus, there was no evidence in the record of the engine running, no evidence that the key was in the ignition; and therefore, there was no evidence that the defendant operated thevehicle.

Therefore, the Court of Appeals found that the requisite elements were not established, and the OVI conviction must be overturned.

For the same reason, the defendant’s driving under suspension charge must be overturned.  Again, there was no evidence that the defendant was actually driving the car because the only witness was the officer that showed up after the fact.

If you have been charged with an OVI or with driving under suspension and you believe that the officer may not have actually observed you driving, give our Columbus DUI attorneys a call.  We can review the facts of your case and determine whether you might have a good defense under Dumas that you were not actually “operating” the vehicle.

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