Fifth District affirms an OVI conviction without any witness to the defendant operating the vehicle.

State v. Anthony, 2016 Ohio 2905 (5th Dist.).

http://www.supremecourt.ohio.gov/rod/docs/pdf/5/2016/2016-Ohio-2905.pdf

May 9, 2016

A woman drove past Anthony's disabled SUV and observed him sitting in the driver's seat and a woman in the passenger seat. About 10 minutes later she again observed the same. When the police arrived, they observed signs that Anthony was intoxicated, although they never observed the vehicle move. Anthony testified at trial that he was a passenger in the vehicle that was driven by a woman. His sister also testified that she saw Anthony leave her residence that evening with the vehicle being driven by the woman. He was ultimately convicted of an OVI, however.

The Fifth District reviewed that R.C. 4511.01 defines a driver or operator as "every person who drives or is in actual physical control of a vehicle, trackless trolley, or streetcar." To operate is defined as, "to cause or have caused movement of a vehicle." The Fifth District quoted the Eighth District for its distinction between physical control and an OVI:

Today, the difference between an OVI and a physical control violation, besides the penalties, is that an OVI requires actual movement of the vehicle, whereas a physical control violation does not. After January 1, 2004, if there is no evidence that the person moved or caused the vehicle to move, that person cannot be convicted of OVI, but may be convicted of being in physical control of a vehicle while under the influence. Still, a person who is found passed out in his vehicle on the side of the highway may be convicted of an OVI because a jury could infer that the vehicle was moved to that location. However, if a person decides to "sleep it off" in the parking lot of the bar where the person drank, the person could be convicted only of a physical control violation, unless there is evidence of movement.

The Fifth District reasoned that there was sufficient circumstantial evidence for "a reasonable person could have found beyond a reasonable doubt that Anthony 'operated' the SUV." Therefore it affirmed the trial court's conviction.