The First District Court of Appeals recently established that the same statutory definition of “operate” applies to both OVI and DUS.
R.C. Title 45 governs motor vehicles. The entire title contains only one definition of the word “operate”. That definition is found in R.C. 4511.01 (HHH). According to the introductory language to the definitions in that section, the terms defined apply in Chapters 4511 and 4513. R.C. Chapter 4510 includes several offenses for operating motor vehicles under various types of suspension, but it does not define the term “operate”. For that reason, some courts have found that the term “operate” has a different meaning under Chapter 4510 than it does under Chapter 4511.
The First District Court of Appeals recently provided clarity to the meaning of the word “operate” under Chapter 4510 in State v. Wilson, 1st Dist. Hamilton No. C-190281, 2020-Ohio-1584.
An officer found the Appellant in the driver’s seat of a running, parked vehicle. The officer learned that the Appellant had a suspended license and cited her with a violation of R.C. 4510.14 (A). That provision states “no person whose driver’s . . . license . . . has been suspended under section 4511.19 . . . shall operate any motor vehicle upon the public roads or highways within this state during the period of the suspension.” Emphasis added. At trial, the focus was on the meaning of the word “operate” for purposes of R.C. 4510.14(A).
The Court reviewed the history of the term “operate” under Ohio motor vehicle law. Prior to January 1, 2004, the term “operate” was defined only by common law. See State v. Cleary, 22 Ohio St.3d 198, 490 N.E.2d 574 (1986). Following Cleary, the Court in State v. Gill, 70 Ohio St.3d 150, 637 N.E.2d 897 (1994), defined “operate” more broadly than “driving” because it included persons who were found in the driver seat of a vehicle with the ignition key on their person indicating actual or potential movement of the vehicle. In Gill, the issue was whether a person could operate a motor vehicle without moving it for purposes of the OVI statute. Effective January 1, 2004, the Legislature defined “operate” in R.C. 4511.01 (HHH). Under that provision, “operate” (as applicable to R.C. Chapters 4511 and 4513) is defined as “to cause or have caused movement of a vehicle . . .” Correspondingly, a statute became effective on January 1, 2004, which prohibited being in physical control while under the influence. Under that statute, R.C. 4511.194, “physical control” means “being in the driver’s position of the front seat of a vehicle . . . and having possession of the vehicle’s . . . ignition key or other ignition device.
In Wilson, the state argued that the Court should apply the common law definition to the word “operate” but the Appellant argued that the Court should apply the statutory definition contained in R.C. 4511.01 (HHH). In order to determine the proper definition of “operate”, the Court in part applied the doctrine of in pari materia. Under this doctrine, statutes that relate to the same subject matter or subject, even if passed at different times without making reference to each other, should be read together to ascertain and effectuate, if possible, the legislative intent. The doctrine is based on the assumption that the General Assembly, in enacting a statute, is “aware of other statutory provisions, concerning the subject matter of the enactment even if they are found in separate sections of the Code.” See Meeks v. Papadopulos, 62 Ohio St.2d 187, 191-92, 404 N.E.2d 159 (1980), quoting State ex rel. Pratt v. Weygandt, 164 Ohio St. 463, 466, 132 N.E.2d 191 (1956).
The Court determined that the definition of “operate” in R.C. 4511.01 (HHH) should be ascribed to the term “operate” in R.C. 4510.14. In simple terms, the Court noted that the operating under suspension statutes and operating under the influence statute relate to the same subject matter, i.e. operating a vehicle under certain circumstances. In reaching its decision, the Court examined other cases where courts relied on R.C. 4511.01(HHH)’s definition of “operate” because the statutes in question lacked a definition for that term and expressly referenced R.C. Chapter 4511. See Doe v. Marlington Local School Dist. Bd. Of Edn., 122 Ohio St.3d 12, 2009-Ohio-1360, and State v. Miranda, 11th Dist. Lake No. 2014-L-020, 2014-Ohio-5312. Likewise, R.C. 4510.14 contains the elements of operating a motor vehicle under an OVI (R.C. 4511.19) suspension.
The decision in Wilson illustrates that by enacting a physical control statute (which does not require movement of a vehicle to violate) and defining the term “operate” (which requires a person to cause or have caused movement to violate), renders the common law definition of “operate” obsolete. Accordingly, whether the offense is operating while under a suspension or operating while under the influence, the statutory definition of the term “operate” should be applied.
- By: Robert G. Walton and Gretchen A. Ebner