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Joslyn Law Firm: Columbus DUI / OVI Lawyer - Substantive Breakdown of ORC § 4511.194 (Having Physical Control of Vehicle While Under the Influence)

   Substantive Breakdown of ORC § 4511.194 (Having Physical Control of Vehicle While Under the Influence)

1.       Analysis of OVI/DUI Definition of “Physical Control” of a Vehicle

Having “physical control” of a vehicle does not only connote driving. Within the meaning of ORC § 4511.194, physical control means having dominion and control over the vehicle by sitting in the driver’s seat, with the key in the ignition, and having possession of the keys. The vehicle need not be started. The necessary elements of the offense are: (1) the suspect is under the influence of alcohol, an illegal substance, or a combination of the two, and (2) the individual’s blood alcohol content (BAC) is above the legal level (i.e., .08 or greater, per ORC § 4511.19 (A)(1)(b) through (e) and/or the suspect has a concentration of a controlled substance or metabolites of a substance in the person’s whole blood, blood serum or plasma, or urine that equals or exceeds that which is listed in ORC § 4511.19 (A)(1)(j). An experienced Ohio DUI Lawyer will often negotiate cases from an OVI to a Physical control as it has the advantage of lower penalties and no points on ones BMV record as its considered a non moving violation.

2.       Standard of Proof for the Viability of Sobriety Tests

Pursuant to ORC 4511.194 (C), the standard for proving the viability of a field sobriety test in any criminal prosecution or juvenile court proceeding is by clear and convincing evidence that the officer administered the test in compliance with the prevailing standards in effect at the time the test was administered, including, but not limited to, any testing standards administered by the National Highway Traffic Safety Administration.

3.       Testimony Concerning the Field Sobriety Test Results

The officer who administered the field sobriety test may testify as to the results if the test was properly performed, as explained above.

4.       Admissibility of Field Sobriety Test Results

The field sobriety test results are admissible in any criminal prosecution or juvenile proceeding, as long as the procedures for the test’s administration were appropriate.

5.       Weight of the Evidence

The weight of the evidence will be determined by the trier of fact.

6.       Probable Cause

The court may determine the issue of probable cause to arrest a suspect, separate and apart from a determination of whether or not the test was administered in accordance with prevailing standards, whether the officer testified as to the results of the field sobriety test, or whether such results were admitted into evidence. The court can also hear testimony and consider the admissibility of evidence regarding any other matter in a criminal prosecution or juvenile court proceeding.

7.       Penalties

A violation of ORC § 4511.194 is a misdemeanor of the first degree (i.e., punishable by up to 180 days in jail, a $1,000 fine, or both) a class seven license suspension, commercial driver's license, temporary instruction permit, probationary license, or nonresident operating privilege from the range specified in division (A)(7) of section 4510.02 of the Revised Code.

8.       Exemptions from ORC § 4511.194

The prohibitions set forth in ORC § 4511.194 do not apply to the following:

(1)  Prescription drug users authorized by health professionals who prescribed the drugs, and

(2)  The person injected, ingested, or inhaled the controlled substance in accordance upon the direction of the health professional.

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Brian Joslyn