WHAT DOES “PHYSICAL CONTROL” MEAN?
What does “Physical Control” mean? Ohio’s Physical Control Statute, O.R.C. 4511.194, became effective on 1/1/05. Physical Control is similar to an Ohio OVI/Ohio DUI charge in that it deals with being in a vehicle while under the influence of alcohol or drugs of abuse with one exception, Physical Control does not require that the vehicle have ever been driven or even started.
The best example of a Physical Control violation is the person who staggers out of the tavern and decides to “sleep it off” in their vehicle. Often times what happens is the person starts the car, either to run the air conditioner or the heater, so the vehicle is actually running, then goes to sleep. However, one need not have the car running or even have the keys in the ignition in order to be in violation of O.R.C. 4511.194 – Physical Control. Under the statute, having the keys within reach will satisfy the definition of having “physical control.” The physical control statute was essentially designed to “reward” or rather, not punish as severely, the person who drinks too much (or uses drugs of abuse) and then gets into their car, but decides not to actually drive.
CAN MY OHIO OVI / OHIO DUI CHARGE BE REDUCED TO A RECKLESS OPERATION CHARGE?
There is an overwhelming opinion amongst the general public (or maybe just the drinking public) that a first offense Ohio OVI / DUI should be reduced to a reckless operation charge. Can this really happen? Well, it depends in large part on a number of things, including, but not limited to:
- The prosecutor’s attitude toward OVI / DUI charges;
- The Court (or Judge’s) attitude toward OVI / DUI charges;
- The actual facts of your case, including such facts as:
a. Was there a breath test performed and if so, how high (or low) was the result;
b. Was there an accident or bad driving; and
c. Where you polite and cooperative to the arresting officer.
These are but a few of the many considerations that will be considered when the prosecutor and your OVI attorney / DUI attorney sit down to discuss the possible out come at a pre-trial conference. This is not to say that if you had a low breath test and you were polite and cooperative that it guarantees a reduction of your charge, in fact, many courts (or prosecutors) take a “no reduction” or “zero tolerance” approach with OVI / DUI charges. This is why it is so important to find an attorney who is familiar with the court and prosecutor that you will be facing in your OVI / DUI case. For a list of attorneys who handle these cases in the court that you will be going to, check out the Attorney Directory.
WHERE IS THE COURT? HOW DO I CONTACT THE COURT?
OVILAW.com’s OHIO TRIAL COURTS directory is a great resource for the accused and attorney’s alike to find important information about the courts that Ohio OVI / Ohio DUI charges are filed in.
The TRIAL COURTS directory has a list of most of Ohio’s County and Municipal Courts listed by county. Simply click on the county drop down/pop up list and choose the county in which the court is located. Before your eyes will appear a list of the county and municipal courts for that county where you can find court addresses, phone numbers, a link to court websites and opportunity to get directions with the assistance of Google Maps.
WHAT HAPPENS IF I DISAGREE WITH THE JUDGE’S DECISION?
If a judge rules against you in your case, you have a right of appeal. Ohio OVI / Ohio DUI charges are generally filed in a county or municipal court (unless it is a felony OVI / Felony DUI). Judges get the opportunity to make decisions regarding your case at numerous points throughout an OVI/DUI case. Some of these decisions may affect your ability to drive while other decisions deal with whether the officer had reasonable grounds to stop you or probable cause to stop you, probable cause to arrest your for OVI/DUI, and the admissibility of evidence including but not limited to field sobriety tests and breath tests (or blood tests or urine tests).
If a judge makes one of these decisions that adversely affects your case (or your ability to try your case), you may want to consider appealing the judges decision to the Court of Appeals that handles your county. However, like trying an OVI/DUI case, you should seek the advice of a competent Ohio OVI /Ohio DUI attorney.
WHY WAS I CHARGED WITH OVI / DUI WHEN I PASSED THE FIELD SOBRIETY TESTS?
Many people think they actually passed the field sobriety tests before they were arrested! The problem is, most people who are taking the field sobriety tests are inexperienced in taking the tests and accordingly, have no idea what the officer is looking for.
If the officer checks your eyes, simply being able to follow the pen (or their finger) doesn’t mean you passed the test. What the officer is looking for is an involuntary twitch of the eyeball called nystagmus – specifically, Horizontal Gaze Nystagmus (HGN).
Nystagmus is a condition that is check for everyday in thousands of individuals and the HGN is usually administered by someone with much more schooling than a police officer – their called doctors! Specifically, neurologists use this test on a daily basis to check patients for various neurological conditions such as multiple sclerosis and Parkinson’s disease. There are numerous substances that we ingest that can also cause nystagmus including nicotine, caffeine and of course, alcohol. Specifically, the National Highway Traffic Safety Administration (NHTSA) has told us that if a police officer gives this test using the specified procedures, it is a tool that can assist the officer in determining the likelihood of the test subject having a blood-alcohol level greater than 0.10 – specifically, there is a 77% chance that the person will test 0.10 or higher on a breath test machine (or blood or urine test).
The Walk & Turn test that was administered is another exercise used to assist the officer in knowing the likelihood of a subject testing 0.10. Specifically, the officer should be trained to administer very specific instructions and then look for the following things:
- Suspect Cannot Keep His Balance While Listening To The Instructions
i. Score this only if suspect does not maintain the heel-to-toe position throughout the instructions (feet must actually break apart)
ii. Do not score this clue if suspect sways/uses his arms to balance himself, but maintains the heel-to-toe position - Suspect Starts Before Instructions Are Finished
- Suspect Stop While Walking
i. Record this clue if suspect pauses for several seconds
ii. Do not record this clue if the suspect is merely walking slowly - Suspect Does Not Touch Heel-to-Toe – gap between heel and toe must be more than ½ inch
- Suspect Steps Off The Line – at least one foot of the suspect must be entirely off the line
- Suspect Uses Arms To Balance – arm(s) must be raised more than 6 inches from sides for this clue
- Suspect Makes Improper Turn
i. Suspect removes front foot from the line while turning
ii. Suspect does not follow directions as demonstrated (i.e., spins or pivots around) - Suspect Uses Incorrect Number of Steps – either more or fewer steps in either direction
Again, NHTSA has indicated that if an officer observes two (2) or more of the preceding eight (8) indicators, there is a 68% chance the subject will test 0.10 or higher.
The One-legged stand (OLS) is the 3rd test endorsed by NHTSA as a tool to be used to help officers determine the likelihood a subject will test 0.10. The NHTSA guidelines instruct the officer to watch for the following:
- Suspect Sways While Balancing – side-to-side or back-and-forth motion while in one-leg stand position
- Suspect Uses Arms To Balance – arms must be raised more than 6 inches from sides to count this clue
- Suspect Hopping (to maintain balance) –resorts to hopping in order to maintain balance
- Suspect Puts Foot Down – not able to maintain one-leg position, but puts foot down one or more times during 30 second count
As you may suspect, NHTSA tells us that if the proper instructions are administered, if an officer sees 2 of the preceding 4 indicators, there is a 65% likelihood the subject will test 0.10 or higher.
Your OVI / DUI attorney should be familiar with the NHTSA standardized procedures and criteria and know how to effectively challenge these tests in court. Even if the judge says these tests are admissible at trial, a competent OVI attorney / DUI attorney should know how to deal with these tests in front of a jury (so long as the client was literally “falling down drunk”).
WHAT IS AN OVI?
OVI is the abbreviation for Operating a vehicle impaired. Ohio’s General Assembly amended our drunk driving / DUI statute to broaden the offense from driving under the influence to operating a vehicle impaired. The big difference is that operation does not require that the vehicle actually be moving. As a matter of fact, the vehicle doesn’t even have to be running so long as you are in the driver’s seat and the keys are within reach. Example: the vehicle is pulled off to the side of the roadway with the driver in the driver’s seat asleep (passed out) and the keys in the driver’s hand.
If the police officer can’t prove that you actually drove the vehicle while impaired, you can be charged with Physical Control (Ohio Revised Code Section 4511.194), however, so long as it can be reasonably inferred (either through direct or circumstantial evidence) that you drove while impaired, you can be charged with OVI.
IS IT IMPORTANT TO HAVE AN ATTORNEY WHOSE OFFICE IS IN THE SAME TOWN AS THE COURT?
Local counsel can be beneficial, but is not essential! The biggest benefit to local counsel is that they will know all of the little habits or pet peeves of the judge and prosecutor. Examples: does the judge give jail days if you had an accident while drinking and driving or does the prosecutor have a “no deals” policy on breath test refusals, or does the judge deny occupational driving on refusals until the defendant pleads guilty. These examples are generally known to local counsel or at least the attorneys who practice regularly in the court. However, the most important qualification for your OVI / DUI attorney is that they not only know the court, but that they have all the knowledge and tools to properly assess and defend your OVI!
SINCE I TOOK THE BREATH TEST, IS IT POSSIBLE TO FIGHT MY OVI / DUI?
Absolutely! However, not every attorney that is listed in the phone book under the DUI / OVI listing is competent to fight these cases. As a matter of fact, many of the attorneys that list DUI / OVI cases in their Yellow Pages advertisement have never done a DUI / OVI / Drunk Driving trial. Do you want someone representing you who has never had a trial? Do you want someone representing you who only knows how to say “GUILTY” or “No Contest?”
Breath test cases are not easy to fight and they generally require the attorney to have a knowledge of the instrument that you blew into, familiarity with the Ohio Department of Health regulations that regulate the maintenance and use of the breath testing instrument, human anatomy and physiology and general trial skills. Additionally, fighting an OVI / DUI with a blood, breath or urine result over 0.08 can be very time consuming and expensive.
When choosing your OVI / DUI attorney, make sure you ask them if they have ever done a DUI / OVI trial with a blood, breath or urine test admitted into evidence.
WHAT IS HGN?
HGN stands for Horizontal Gaze Nystagmus. “ Nystagmus is defined as "an involuntary rapid movement of the eyeball, which may be horizontal, vertical, rotatory, or mixed." Alcohol slows down the eyes' ability to rapidly track objects and causes to eyes to oscillate, or "jerk", before they normally would in a sober person. Alcohol stimulates the nerve endings, making nystagmus more pronounced in intoxicated persons. As a person's blood alcohol concentration increases, the eyes will "jerk" sooner as they move to the side. The HGN test claims to gauge intoxication by measuring the involuntary oscillation of the eyes.” (H.G.N. by Laine Means, http://forensic-evidence.com/site/Biol_Evid/HGN.html)
The National Highway Traffic Safety Administration (“NHTSA”) tells law enforcement that if the officer administers the HGN according to the standardized procedures established by NHTSA, then the officer can correctly identify persons who are likely to test over 0.10 of a gram per 210 liters of exhaled breath on the breathalyzer. According to the original laboratory research, this test is accurate 77% of the time. Does that mean that it is inaccurate 23% of the time?