Login | November 28, 2022

Driving under suspension charge requires moving vehicle, court rules

DAN TREVAS
Supreme Court
Public Information Office

Published: September 26, 2022

To be guilty of driving under suspension for operating a vehicle while under the influence of drugs or alcohol (OVI), one must actually move the vehicle, the Supreme Court of Ohio ruled today.
A divided Supreme Court ruled that while the term “operation of a motor vehicle” is not defined in the state law covering driving under a suspended license, the words mean more than being in the driver’s seat while possessing the ignition key. The decision reversed the conviction of a Hamilton County woman with a prior drunken-driving conviction who was sleeping in her car with the heater on after being kicked out of a party.
In the Court’s lead opinion, Justice Jennifer Brunner wrote that the General Assembly defined “operate” in 2002 when enacting R.C. 4511.01(HHH). That law says “operate” is “to cause or have caused movement of a vehicle.” The Court held that definition of “operate” applies to whether a person with a suspended driver’s license for a prior OVI is operating a motor vehicle in violation of the law. Earlier Supreme Court precedent, if applied, would have led the Court to uphold, rather than reverse, the conviction for being in the driver’s seat and having the ignition key.
Justices Michael P. Donnelly and Melody Stewart joined Justice Brunner’s opinion.
In a concurring opinion, Justice Patrick F. Fischer indicated it was most likely an oversight that lawmakers did not define “operate” in the OVI suspension law when they revised several laws related to OVI in 2002. He would infer that the General Assembly intended the definition of “operate” adopted in 2002 to apply to the offense of driving under an OVI suspension.
In a dissenting opinion, Justice R. Patrick DeWine reasoned that both the ordinary meaning and the Supreme Court’s definition of “operating a vehicle” encompass engaging a car’s engine without causing movement. The legislature chose to use the word “operate,” not “drive,” he wrote. But rather than accept that policy decision, the Court majority “impatiently ‘rewrites the statute in a manner that is pleasing to [it],’ ”Justice DeWine stated.
Justice Sharon L. Kennedy joined Justice DeWine’s opinion.
Chief Justice Maureen O’Connor dissented without a written opinion.
Friends Found Sleeping in Car After Late Night Party
In February 2018, Katherine Wilson and three friends were up late partying at a friend’s home. The friend’s parent threw them out of the house. The four then decided to sleep in the car parked near the house.
A concerned neighbor called the police after spotting the running car on the street in the early morning. Wilson, whose license was suspended for an OVI conviction, was in the driver’s seat. Because it was cold, she had turned on the car and the heater. The police officer responding to the call found the four asleep. There was no indication that Wilson had moved the car.
The officer cited Wilson for driving under an OVI suspension, in violation of R.C. 4510.14. Wilson was found guilty and sentenced to three days in jail and a $250 fine. She appealed the conviction, and the trial court stayed her sentence pending the appeal.
The First District Court of Appeals reversed the conviction, finding no evidence that Wilson moved the car. The First District noted the Supreme Court has twice defined “operation of a motor vehicle,” in 1986 and 1994, as being in the driver’s seat with the ignition key. However, the First District stated, the General Assembly “signaled a departure” from that definition with the enactment of a new offense – having physical control of a vehicle while under the influence. The new law makes it a crime for a person to be intoxicated while behind the wheel and in possession of the ignition key. The First District held that “operate” means something other than physical control and requires proof that the vehicle was moved.
The Cincinnati city solicitor through the City Prosecutor’s Office appealed the decision to the Supreme Court, which agreed to hear the case.
Supreme Court Analyzed OVI Offenses and Suspensions
Justice Brunner explained in the Court’s lead opinion that driving under an OVI suspension is one of several suspended license offenses listed in Chapter R.C. 4510. The phrase “operating a motor vehicle” is not defined in that chapter. But another section of the code, R.C. 4511.01(HHH), enacted in 2002, defines “operate” as “to cause or have caused movement of the vehicle” for offenses listed in Chapters R.C. 4511 and R.C. 4513 in the context of operating a motor vehicle while under the influence. The Court applied this OVI definition to driver’s license suspension offenses in Chapter R.C. 4510, setting aside earlier Court-supplied definitions in recognition of more recent legislative changes.
Before today’s decision, the Supreme Court in its 1986 State v. Cleary opinion and its 1994 State v. Gill opinion,had recognized there was no legislative definition of “operate” for OVI offenses. In those opinions, the Court held that to “operate” meant having physical control of a vehicle while under the influence. Later, the General Assembly enacted a definition of “operate” for crimes involving driving while intoxicated.
In Cleary and Gill, both individuals were intoxicated and were either passed out or asleep in the driver’s seat of a vehicle. Police found Cleary slumped over the steering wheel with his foot on the accelerator, causing the engine to race while the car’s brake was engaged in a parked position. Police found Gill intoxicated and asleep in a car with the keys in the ignition. In both cases, the Court determined that “operate” encompassed less than actually driving and outlawed an intoxicated person from being in a position to move a car. Cleary and Gill involved OVI offenses, while Wilson was convicted under a different statute, driving with a suspended license for a prior OVI, the opinion noted.
With the more recent legislative enactment defining “operation of a motor vehicle” in the OVI context, the Court found “no binding definition of “operate’” for driving while under suspension and looked to other case law and statutory definitions to supply the meaning of “operate” in the context of a suspended license.
Wilson’s offense, titled “driving under an OVI suspension,” prohibits a person from operating “any motor vehicle upon the public roads or highways within this state during the period of the suspension.” The lead opinion noted that in 2009, in Doe v. Marlington Local School Dist. Bd. of Edn., the Court found the legislative definition of “operate” to be more persuasive than the superseded, Court-supplied definitions in Cleary and Gill. The Court further found that the newer legislative definition prohibits operating a vehicle on a road or highway, thus prohibiting moving a vehicle. Wilson did not move her vehicle. The Court concluded that, while the R.C. 4511.01(HHH) definition does not specifically reference driving while a license is under suspension, Marlington and the statute are “persuasive” to require movement of the vehicle for the offense of driving under an OVI suspension.
Movement of Vehicle Required for Offense, Concurrence Asserted
In his concurrence, Justice Fischer stated the definition of “operate” in Cleary and Gill are not applicable to offenses regarding a license suspension because the context is not the same as drunk-driving violations. Drivers with licenses suspended for a prior OVI or other reason do not pose the same safety concerns as intoxicated people behind the wheel, he wrote.
He noted the dissent in Gill stated that the broader interpretation of the term “operate” would prevent sober people whose licenses were suspended from listening to the radio or using their vehicle as a “four-wheeled, heated hotel room.”
Justice Fischer wrote the General Assembly created a “new” offense of “having physical control of a vehicle while under the influence” when it revised the OVI laws in 2002. That offense applies to those behind the wheel of a nonmoving vehicle. If “operate” already included controlling the vehicle without moving it, there would be no need for two offenses, he reasoned.
Suspended Driver Was Illegally Operating Car, Dissent Maintained
Justice DeWine explained in his dissent that under R.C. 4510.14(A), Wilson operated her “car by engaging its engine.” Had the legislature intended to require movement, it would have used the narrower word “drive” instead of “operate,” Justice DeWine stated. The ordinary meaning of “operate” dictates that there are many “ways in which a person might operate a car without driving it,” he noted.
Justice DeWine disagreed with the lead opinion’s “adopt[ion of] a statutory definition of operate that by its own terms” did not apply to the law with which Wilson was charged. “The legislature could have applied the new definition of operate to the” offense at issue, “but it chose not to do so,” he wrote. And because the new, statutory definition was inapplicable, the Court’s precedents on the meaning of operating a vehicle controlled the question. Those precedents hold that sitting idly in a running car (Wilson’s exact conduct) constitutes operating the car, the dissent stated.
The dissent chided the Court majority for “rewrit[ing] a statute simply because [it] believe[s] the legislature made a mistake” and for “refus[ing] to give stare decisis effect to our precedent.” Justice DeWine concluded by stating that the Court should stick to its job of applying the law as it is written and “leave policymaking and legislating to the General Assembly.”
The case is cited 2020-0721. State v. Wilson, Slip Opinion No. 2022-Ohio-3202.


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