Ohio has an offense known as “Physical Control Of Vehicle While Under The Influence”, commonly called physical control. In order to be convicted of this charge, the prosecutor must prove that a person was in physical control – which is defined as being in the driver’s position of the front seat and having possession of the ignition key and be under the influence of alcohol or over the legal limit. These sections can be found at ORC 4511.194
Physical control is a 1st degree misdemeanor, punishable by up to 180 days in jail and a $1,000.00 fine. A physical control conviction does not enhance a later Ohio DUI charge.
Kentucky, on the other hand, does not have a separate physical control statute. It and DUI are dealt with under the same section – 189A.010. That section states that no person shall operate or be in physical control of a motor vehicle when under the influence or over the limit. DUI and physical control are charged and prosecuted in Kentucky as a single offense.
This has an important consequence. If one were to be convicted of a physical control in Ohio and subsequently charged with DUI in Kentucky – it could be treated as a second offense. If one was convicted of a violation of 189A.010 in Kentucky (assume it was physical control and not operating the vehicle) and then charged with DUI in Ohio, there could, if not handled properly, be an enhancement of the Ohio DUI because of the prior Kentucky conviction.
The defense lawyer should obtain all the relevent information on the prior charge to present to the prosecutor on the new charge. If the prosecutor will not agree that it doesn’t enhace the charge – a motion would have to be filed to seek resolution by the judge.
If you have an Ohio or Kentucky DUI, call for a free consultation at 513-333-0014.
