An OVI requires actual movement of a vehicle, while a physical control charge does not; however, police may infer movement to charge a sleeping driver of a parked car with a DUI.

Cleveland v. Sheppard, 2016-Ohio-7393 (8th Dist.)

https://www.supremecourt.ohio.gov/rod/docs/pdf/8/2016/2016-Ohio-7393.pdf

October 20, 2016

Sheppard was found sleeping in his car while it was running in Tremont. The police reported that his car was parked awkwardly and partially in the grass. Sheppard claimed that it was parked within one of the parking spaces along a street that were "indented" out of the tree lawn. The police agreed that there were such areas, but insisted he one not in one. After eventually being convicted of an OVI in the Cleveland Municipal Court, Sheppard brought this appeal.

The Eighth District held that Sheppard could be convicted of an OVI, even though he was sleeping in a parked vehicle without his keys in the ignition. It reasoned that the General Assembly specifically defined "operate" as used in R.C. Chapter 4511 to mean "to cause or have caused movement of a vehicle." Movement must be found by the finder of fact. However, the Eighth District held that such movement may be in the past or present, and that such movement may be inferred. It distinguished between an OVI and a physical control charge by explaining that "an OVI requires actual movement of the vehicle, whereas a physical control violation does not.”

For Sheppard, the Eighth District concluded that there was sufficient information that he moved the vehicle based upon how it was parked, that it was running, and there was no one else in the area.