In criminal law, each crime has “elements” that must be satisfied. Every element must be satisfied. Therefore, if one element is lacking, then the prosecution cannot prove the case. Simple as that! A DUI, actually called an OVI in Ohio, requires the following if it involves alcohol:
2. .08% alcohol in system as determined by blood, urine or breath.
Pretty simple, really. Operation is one element that can be attacked by defense attorneys and produce fruitful results. A couple of years ago when I first started working for a defense attorney, I spent an entire day reading case law on what exactly constitutes “operation.” The issues was: can you operate a vehicle that is malfunctioning? As you can imagine, there aren’t many cases where a drunk dude tries to start a vehicle without an engine. [That would be a pretty fun argument though!] Most cases involve a drunk person who was driving, and then his car broke down. Those cases are pretty rare…but a state can win on a theory that operation doesn’t have to be present ambulation, especially if there is evidence that the person had driven.
Police officers and prosecutors had a lot of trouble “diagnosing” the cases where a drunk motorist was found asleep at the wheel, often with the heat or AC running. The General Assembly passed a gap-filling law called “Physical Control.” Basically, this requires
1. Driver is in front seat, with control of keys.
Ok, so now that I’ve given some background on DUI elements, lets apply them to different scenarios.
1. A drunk dude is found sleeping in his running car on the side of a highway. Chances are, he’ll be hit with a DUI because there is good evidence he drove there.
2. A drunk guy is found at a bar parking lot with his car running. The state might charge a DUI, but I seriously doubt it would win at trial, especially not in Cuyahoga County. The 8th Appellate District is very strict: unless there is evidence of movement, then it is physical control, not DUI.
3. A drunk dude is found passed out in the front seat of his car at a bar parking lot, keys in his hand. Under a strict statutory interpretation, he could be charged with physical control – all that is required is control of keys.
4. Id on the facts, but this time, keys are back seat, driver in front. Although he might be charged with physical control, his car will be impounded and he’ll have to hire an attorney, I highly doubt any court would take such a broad interpretation of “control” to include this fact pattern.
5. Drunk dude is in back seat, car is off. Keys are nearby. No physical control, because he isn’t in front seat. Again, I’m not completely confident that cops would know the subtle nuances of the law, so I would advise people who sleep in their backseat to print off a copy of ORC 4511.94 and keep it in the glove box. Even though there is no way you’d get convicted of a physical control violation, it would still be a pain to have your car impounded.
6. This one is a toughy: person has vehicle on in bar lot, no evidence of moving, and is sleeping in back seat. I think he could be charged with physical control, because there is evidence that he was in the front seat at one point, even leaning in.
So, in summary: sleeping it off is GOOD. You won’t break the law if you are in the back or passenger seat and your vehicle is off.