There have been cases where a person is found behind the wheel of stationary vehicle and has been convicted of OVI because there conduct is sufficient to justify operation of the vehicle.
The issue in these cases is whether the officers conduct was constitutionally authorized. The stop must fall into one of the following categories: consensual encounters, investigatory stops, and arrests.
An encounter is consensual where an officer approaches a person in a public place, speaks with them and requests information and the person is free to answer or walk away. In order to determine of a person was free to walk away, it must be determined that a reasonable person would not feel free to decline the request for information or to end the encounter. Once the person’s liberty is restrained, the encounter is no longer consensual and it becomes either an investigatory stop or an arrest.
Multiple officers, language of the officer, display of a weapon are all factors that may be examined to determined if the contact was consensual.
If a vehicle is already stopped, it does not automatically implicate the Fourth Amendment. Thus, it is a consensual encounter. There are exceptions. For example, in one Ohio case an officer saw two individuals sitting in a car in a crowded parking lot. The officer pulled his cruiser behind their car, blocking them in and approached the vehicle. This was held to NOT be a consensual encounter.
Thus, there is no bright line test to determine if an encounter with law enforcement is consensual. A competent Columbus, Ohio OVI lawyer needs to collect all evidence and assess all avenues of the case in order to determine the best defense.