Question: Is physical control a lesser-included offense of an over-the-limit OVI?
Quick Answer: No.
Facts: Richard Taylor was charged with OVI and found not guilty. However, the court found him guilty of the lesser-included offense of physical control. Taylor appealed the conviction, and the appeals court overturned.
Why this case is important: When a person is acquitted an on offense, he can still be convicted of an uncharged lesser-included offense. What this means is that even if a suspect is “undercharged” (that is, not charge with every conceivable offense), a court can still convict on lower-level charges “included” in the greater offense. A good example of this is theft and robbery. You cannot commit a robbery without committing a theft; so theft is a lesser-included offense of robbery.
However, whether one offense is a lesser-included offense of another often is a complex legal question. In this short, seven-page opinion, the court explained why physical control is not a lesser-included offense of OVI by covering issues ranging from the drunken operation of a bicycle to whether electric cars have an ignition.
If Taylor had been charged with physical control, he would have been convicted. But, because he was not charged and because physical control is not a lesser-included offense of OVI, he got off completely.
Keep in mind: Some prosecutors don’t like a “charge everything” approach. Some prosecutors don’t like undercharging. Talk to your prosecutor about these types of charging decisions, but remember that any offense you don’t charge is an offense the suspect might avoid later. And if you ever want to read a case that turns on drunken bicycling and a Tesla’s ignition, this is the one for you.
View the
Ohio Ninth District Court of Appeals website to view the entire opinion.