Picture a woman standing in her garage beside her car. The engine is not running, but the car is ‘on’ with the radio playing. Police arrive at her residence, enter the garage, and give her field sobriety tests. The officers determine she is under the influence of alcohol, arrest her, and charge her with DUI (called ‘OVI’ in Ohio). Can she be convicted of OVI?
This question is not entirely hypothetical. According to KOAT 7 Action News, this is what happened to Pamela Gonzales in New Mexico. A caller claimed she got into an argument with Gonzales at a gas station, and Gonzales smelled like alcohol. The caller gave Gonzales’s license plate number to police, and the police made contact with Gonzales in her garage. The police charged her with DWI, and the case was ultimately thrown out because the judge determined the officers’ entry into her garage was unlawful.
But, what if a judge concludes the entry was justified by ‘exigent circumstances’ – could a person be convicted of DUI/OVI in this scenario? Like many questions in the law, the answer is ‘it depends’.
Public or Private Property
In some states, a person can be convicted of DUI only if the person operated a vehicle on public property. In Ohio, however, an OVI conviction can arise out of drunk driving on private property. Many traffic offenses in Ohio are prohibited only on public roads or highways. For OVI, however, Ohio Revised Code section 4511.19 prohibits operating a vehicle ‘under the influence’ or ‘over the limit’ any place “within this state”. Therefore, an OVI can be based on operating a vehicle on private property, including one’s own garage.
For the prosecution to prove an OVI accusation, the prosecution must prove the defendant “operated” the vehicle ‘under the influence’ or ‘over the limit’. According to Ohio Revised Code section 4511.01, “Operate means to cause or have caused movement of a vehicle, streetcar, or trackless trolly”. Other states have different definitions of ‘operate’ or ‘drive’.
In a case like that of Pamela Gonzales, it seems unlikely the prosecution in Ohio could prove operation of the vehicle ‘under the influence’ or ‘over the limit’. The officers did not observe Gonzales move the vehicle or cause movement of the vehicle. The prosecution could argue that circumstantial evidence proves Gonzales moved the vehicle. After all, she (and the vehicle) got from the gas station to her garage, so she must have operated the vehicle. However, the operation and the intoxication must happen at the same time. Even if Gonzales was intoxicated, she may have easily become intoxicated after operating the vehicle.
A Garage Is Not ‘Home Base’
In cases with different facts, a person could be convicted of OVI when found intoxicated in their garage. If the caller had followed Gonzales to her garage and observed her (not drinking) until the police arrived, and if Gonzales was intoxicated, the prosecution could likely prove she was ‘under the influence’ or ‘over the limit’ at the time of operation. The fact that she made it home would not be a defense.
This issue illustrates the complexity of DUI/OVI laws. In Ohio, Revised Code section 4511.19 has been amended nearly 20 times since the enactment of the ‘modern’ OVI law in 1982. And that is just one of many laws impacting drunk driving in Ohio. The complicated nature of OVI law is one reason a person charged with this offense may want to seek representation from an effective OVI defense lawyer.
About the Author: Shawn Dominy is a leading DUI lawyer in Ohio and the founder of the Dominy Law Firm in Columbus, Ohio. He can be reached through his law firm’s website: Dominy Law Firm.