A Physical Control Conviction Is Not A Prior Offense

A physical control conviction does not count as a “prior offense” for purposes of enhancement.  This principle is spelled out in case law and in statute.  R.C. 4511.181 sets forth the offenses that count as prior convictions.  It does not list a violation of physical control (R.C. 4511.194) as a predicate offense.  It does not matter if the prior conviction  was charged under R.C. 4511.194 or as a violation of a municipal ordinance. This is set forth at R.C. 4511.182(A) and in State v. Schultz, 2008-Ohio-4325 (Ohio Ct. App. 8th Dist. Cuyahoga County 2008).

Charles M. Rowland II dedicates his practice to defending the accused drunk driver in the Miami Valley and throughout Ohio. He has the credentials and the experience to win your physical control or DUI case and has made himself Dayton’s choice for drunk driving defense. Contact Charles Rowland by phone at (937) 318-1384 or toll-free at 1-888-ROWLAND (888-769-5263). If you need assistance after hours, call the 24/7 DUI Hotline at (937) 776-2671. You can have DaytonDUI at your fingertips by downloading the DaytonDUI Android App or have DaytonDUI sent directly to your mobile device by texting DaytonDUI (one word) to 50500. Follow DaytonDUI on Facebook, @DaytonDUI on Twitter, YouTube, Tumblr, Pheed and Pintrest or get RSS of the Ohio DUI blog. You can email CharlesRowland@DaytonDUI.com or visit his office at 2190 Gateway Dr., Fairborn, Ohio 45324.

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Actual Physical Control in Orlando DUI Accident Cases

The state may establish actual physical control in an Orlando DUI case through circumstantial evidence, including expert witness testimony.

In every Orlando DUI case, the government must prove that

The defendant drove, or was in actual physical control of a vehicle, andWas under the influence of either alcohol beverages or controlled substances to the extent that the driver’s normal faculties are impaired, or had a BAC over .08

See Standard jury instructions in Orlando DUI cases (Word version)

In most Orlando DUI cases, the State can prove that a defendant was the driver of the vehicle because, well, the police officer sees the person driving the car. Easy. No problems at all.

But if the DUI case arises out of an accident, proof of actual physical control isn’t as easy to establish.

When the DUI investigators from the Orange County Sheriff, Florida Highway Patrol, or Orlando Police are investigating a DUI accident, they usually don’t arrive on scene contemporaneously with the accident. Depending on other issues in the area, it may be 20 minutes, 30 minutes, even hours before the DUI investigators arrive.

By the time they arrive, the drivers of the vehicles involved have usually gotten out of their cars to inspect the damage or to exchange information.

Unless civilian witnesses are available to testify that they saw the defendant driving, there may not be any direct evidence placing the defendant behind the wheel (and in actual physical control) of an operable vehicle.

Without direct testimony, the State must rely upon circumstantial proof to establish that the Defendant actually drove the vehicle. However, the state may prove this through expert testimony, as they did in West v. State, 745 So.2d 414 (Fla. 5th DCA 1999)

Orlando-DUI-circumstantial-evidence-of-driving-West-v-State-745_So2d_414-Fla-5th-DCA-1999

photo credit: Jean Henrique Wichinoski via photopin cc

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Broward DUI Lawyer on Actual Physical Control of a Vehicle

Driving under the influence, as the name implies, usually actually involves driving. But Fort Lauderdale DUI lawyer Moore says that literal driving is not a requirement for the state to prove the a DUI charge. The Florida law that governs drunk driving, Fl. Stat. Section 316.193, requires only that the driver be in "actual physical control" of the vehicle. Most states have a similar or identical standard, which has tended to be construed rather broadly.

Surprisingly, Broward DUI lawyer Moore says that actual physical control may include just simply sitting in the driver’s seat in some instances. The car does not necessarily even need to be turned on. If the keys are in the ignition or even within reach, such as within the pocket of the person sitting in the driver’s seat, as well as other circumstances, law enforcement agents and the courts may consider the defendant to have been in actual physical control of the vehicle.

A driver -- or “driver,” as the case may be -- also does not need to necessarily be out on the road in order to be charged with DUI. Sitting in a car in a driveway, on private property, can still potentially subject the individual to a charge of driver under the influence so long as the law enforcement officer had a reason to investigate the situation. For example, if police were called to the home to sort out allegations of a domestic altercation, the situation could arise where one partner goes to the car to cool off. The police might also initiate an investigation if they see suspicious activity that warrants their attention, says Fort Lauderdale DUI lawyer, such as a person passed out in a car who may need medical attention.

View the original article here

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