What if no one saw me actually driving?

To be convicted of drunk driving in Ohio, the State must prove beyond a reasonable doubt that you “operated” a vehicle under the influence, or with a prohibited level, of alcohol or a drug of abuse. Under Ohio law “driving” is not the same as “operating.” In other words, you can operate a car without actually driving it.

“Operate” is defined in Ohio as “to cause or have caused movement of a vehicle….” R.C. 4511.01(HHH). A question sometimes arises as to how much movement is necessary. The Ohio Supreme Court recently ruled in a case where a person was discovered slumped over the steering wheel of a car at a stop sign on a highway exist ramp with the engine running, that because the engine was running there was sufficient evidence to prove “operation.” As a practical matter, however, observation of your driving pattern is an important piece of evidence that the prosecution will want not only to prove “operation,” but also to prove that the operation occurred while you were “under in the influence.”

Although the lack of observing you driving the car does not automatically spell dismissal of the case, it can certainly weaken the state’s ability to prove your guilt. In some situations, such as the officer coming upon a disabled vehicle or someone just sleeping in the car, the officer’s first investigative task is to determine if the vehicle was recently operated and who drove it. Driving, and who was driving, can be shown by circumstantial as well as direct evidence.

Some of the indicia of recent driving include a hood feeling warm to the touch, the location of the vehicle, statements by you or witnesses. It is easy to see why it can be important for you to not volunteer information. So, while lack of the observation of you driving can weaken a case for the prosecution, and in some cases prevent a prosecution, the importance should be analyzed on a case-by-case basis.

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