Q: Can I be convicted of OVI if I am not actually driving my car?
A: If you are under the influence and the prosecution can prove that you “operated” your car and were not simply in “physical control” of your car, you can be convicted of OVI (Operating a Vehicle while Intoxicated) even if you are not actually observed driving the car.
“Operation” includes causing or having caused a vehicle (such as a car, truck, RV, bicycle or motorcycle) to move. “Physical control” is defined as being in the driver’s position of the front seat of a vehicle while having possession of the ignition key. If the prosecution can prove that you were causing movement or had caused movement or of the vehicle while you were under the influence of alcohol or over the “legal limit,” you can be convicted of OVI. If movement of the vehicle cannot be proven, you cannot be convicted of OVI. However, if it can be proven that you were in the driver’s seat of a vehicle, in possession of the ignition key and either under the influence of alcohol or you tested over the legal limit, you can be convicted of being in “physical control” of a vehicle while under the influence of alcohol or drugs.
While a “physical control” conviction is similar to an OVI conviction in that both are alcohol-related first degree misdemeanors, a physical control conviction does not carry minimum penalties. In fact, the court generally gives light penalties for physical control convictions due to the fact that you did not operate your vehicle and place others at risk. Also, whereas prior OVI convictions trigger enhanced minimum penalties for future OVI convictions, prior physical control convictions would not trigger those enhanced penalties for future OVI convictions. For example, if you are convicted of OVI and you have had a prior OVI conviction within the last six years, your minimum jail time will jump from three days to 10 days. If you are convicted of OVI and have a prior physical control conviction, the minimum jail time is still only three days. Most importantly, being convicted of “physical control” does not carry the stigma of an OVI conviction.
Q: Is it still legal to drink and drive?
A: It is illegal to consume alcohol while driving. However, current Ohio law says that, if you consume alcohol before driving and you are neither impaired nor at or above the “legal limit,” it is legal to drive in Ohio, even though it may not be advisable.
Some law enforcement agencies have developed “zero tolerance” policies against any amount of alcohol consumption before driving. However, Ohio law does not currently support such policies, and individuals have been successful in lawsuits against law enforcement agencies with “zero tolerance” policies due to unlawful arrests for OVI.
Q: Can I predict my blood alcohol content (BAC) so that I can be sure of not getting picked up for OVI?
A: It is possible to estimate your BAC. However, because so many factors affect your BAC, an exact calculation is impossible. For example, you would have to consider your body weight, the amount of alcohol you consumed, and the length of time you were consuming alcohol.
While BAC calculators (graphs, charts, and the “drink wheel,” which can be found at www.intox.com) can provide a relatively accurate estimate of your BAC, you should not rely on a BAC calculator for legal purposes because there are many factors that the calculators do not take into consideration. These factors include the rate of absorption of alcohol into the bloodstream, the distribution of alcohol throughout the body, the rate of elimination of alcohol from the body, body type (water, fat, and muscle content), the rate of consumption, the alcohol content of the drinks, food consumption, tolerance to alcohol and gender.
Also, you should not rely upon BAC calculators for legal purposes because they do not predict your level of impairment. In addition to the effects of alcohol, your impairment level can be affected by medication and fatigue. It is important to remember that you can still be convicted of OVI due to impairment regardless of your BAC.
This "Law You Can Use" legal information column was provided by the Ohio State Bar Association. It was prepared by attorney Jon J. Saia, a partner in the Columbus law firm, Saia & Piatt, Inc., and updated by attorney Jessica G. Fallon of the same firm.