DUI law sets precedent for "operating" until 239 passes?

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DUI law sets precedent for "operating" until 239 passes?

Postby Sevesteen » Thu May 27, 2010 10:41 am

I'm curious about the definition of "operating a motor vehicle" as it applies to handling a firearm in a car. There doesn't appear to be a clear definition of "operating", so I would think precedent set by DUI law would apply. People have been convicted for being in a parked car while drunk with keys. Wouldn't that seem to indicate that unless 239 passes, we effectively can't move a gun between legal places in our car while parked on the street?
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Re: DUI law sets precedent for "operating" until 239 passes?

Postby carmen fovozzo » Thu May 27, 2010 10:45 am

....IMO if you have a CHL you could move it any where you want....
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Re: DUI law sets precedent for "operating" until 239 passes?

Postby SMMAssociates » Thu May 27, 2010 11:45 am

Just me, guys, but my read on "Felony Touching" is that it only applies when an LEO is approaching or present at your vehicle....

It's otherwise unenforceable....

Whether common sense would apply in OH, though, I can't say.

(IANAL)

OTOH, waving the gun around, pointing it at another vehicle, etc., likely would get some attention.

IMHO, the law was set up to prevent you from uncovering during the "Plain Sight" era if you'd neglected to do so. It's really only an "Officer Safety" thing now, as well as a way to jack you up if somebody's really in a bad mood. (Our safety is irrelevant....)

So, during a traffic stop or other LE interaction, don't touch the thing unless so ordered.... Otherwise, ignore it....

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Re: DUI law sets precedent for "operating" until 239 passes?

Postby FormerNavy » Thu May 27, 2010 6:02 pm

SMMAssociates wrote:Just me, guys, but my read on "Felony Touching" is that it only applies when an LEO is approaching or present at your vehicle....

It's otherwise unenforceable....

Whether common sense would apply in OH, though, I can't say.

(IANAL)

OTOH, waving the gun around, pointing it at another vehicle, etc., likely would get some attention.

IMHO, the law was set up to prevent you from uncovering during the "Plain Sight" era if you'd neglected to do so. It's really only an "Officer Safety" thing now, as well as a way to jack you up if somebody's really in a bad mood. (Our safety is irrelevant....)

So, during a traffic stop or other LE interaction, don't touch the thing unless so ordered.... Otherwise, ignore it....

Regards,


I don't believe that is correct. There is a section of the ORC that deals with touching while being stopped by law enforcement, but there is also the provision for "Improperly Handling":

R.C. 2923.16(E)(2): If the person is transporting or has a loaded handgun in a motor vehicle in a manner authorized under division (E)(1) of this section, knowingly remove or attempt to remove the loaded handgun from the holster, case, bag, box, container, or glove compartment, knowingly grasp or hold the loaded handgun, or knowingly have contact with the loaded handgun by touching it with the person’s hands or fingers while the motor vehicle is being operated on a street, highway, or public property unless the person removes, attempts to remove, grasps, holds, or has the contact with the loaded handgun pursuant to and in accordance with directions given by a law enforcement officer;


And a violation of (E)(2) is a 5th degree felony. Personally, I think this is a stupid law the way it is currently written. If I carry IWB, and need to adjust the cant or something because it's uncomfortable, I'm committing a felony. This should be removed altogether or in the least, changed to removal of the handgun instead of merely touching it.
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Re: DUI law sets precedent for "operating" until 239 passes?

Postby GWC » Thu May 27, 2010 7:52 pm

Yes, it is a stupid provision.

But as a practical matter it is unenforcable. Unless there is a police officer in your car, or unless someone else in your car performs a citizen's arrest, it cannot be enforced.
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Re: DUI law sets precedent for "operating" until 239 passes?

Postby painiac » Thu May 27, 2010 8:15 pm

FormerNavy wrote:And a violation of (E)(2) is a 5th degree felony. Personally, I think this is a stupid law the way it is currently written. If I carry IWB, and need to adjust the cant or something because it's uncomfortable, I'm committing a felony. This should be removed altogether or in the least, changed to removal of the handgun instead of merely touching it.


Poorly written, but as noted it's so difficult to enforce that it's almost as if the law isn't even there.
If you adjust your gun, it's not automatically unsafe but there are certainly unsafe ways to do so. If you don't pull it out such that a witness thinks you're brandishing, and if you don't have a negligent discharge, there's no problem.
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Re: DUI law sets precedent for "operating" until 239 passes?

Postby SMMAssociates » Thu May 27, 2010 9:41 pm

FormerNavy:

IMHO, R.C. 2923.16(E)(2) is just too obscure for the average LEO to use anyway.... But, mostly, it's unenforceable.

Meantime, if you're transporting a loaded handgun in line with about any of the other provisions for CHL holders, it becomes illegal to transfer the weapon to your holster, or to transfer it from your holster to a storage area of some sort (like what you do on-campus at a College or University), unless a definition of "operate" is in force that's different from what current case law appears to accept.

IANAL, but I'll stand by my interpretation of it being a leftover from the "don't let 'em uncover during a traffic stop if the gun wasn't in plain sight" era.... And, of course, generally mishandling the firearm.

BTW, there's enough "knowingly" hiding in there to allow for accidental contact.

I hate to say "ignore it", but unless you're being stopped (or already stopped), it'd be extremely difficult to get a conviction. An LEO could cite you for doing so while he's walking up to your car, but that's about it.... A good attorney could easily show that the Officer could or could not have seen you, so it probably would boil down to who's word the Court would accept outside of that. Yet another poison pill, I suppose, but really unlikely....

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Re: DUI law sets precedent for "operating" until 239 passes?

Postby OhioPaints » Thu May 27, 2010 9:58 pm

How does one put it in the glove box without touching it? :roll:

Dumb law, IMO.

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Re: DUI law sets precedent for "operating" until 239 passes?

Postby Sevesteen » Thu May 27, 2010 10:14 pm

Back to the original question--for the purposes of R.C. 2923.16(E)(2), strict letter of the law--What counts as operating, and is there any reason (other than common sense) that the DUI precedent of "keys in pocket while inside a parked car" definition wouldn't hold?
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Re: DUI law sets precedent for "operating" until 239 passes?

Postby SMMAssociates » Thu May 27, 2010 11:20 pm

Sevesteen:

Well....

It might set a new precedent if a competent Judge or Jury comes up with the right answer.... That would kill the "keys in pocket"....

However, it may be in the best interest of LE to keep "keys in pocket" - a trivial (and stupid) gun-handling case breaking a (questionably) useful DUI-prevention method just might not play well in Pravda.

I think "keys in pocket" never went too far in appeals - no idea, really - because the defendant couldn't/didn't pursue it. It should have broken before we got into this mess. They seem to have re-defined "operating" as "having the means to operate" or some such. I doubt if that would have flown too far.

But, then, it's Ohio and.... :(

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Re: DUI law sets precedent for "operating" until 239 passes?

Postby FormerNavy » Fri May 28, 2010 8:22 am

I was not commenting on enforcement of the law, but rather that under the letter it is a felony anytime - not just during a LEO stop. I agree enforcement would be very difficult for the reasons stated above by others. I also agree that if you use the same definition of "operate" as used for DUI, then that causes a conflict with other sections of the CCW law with regards to securing your gun in your car, so a new definition would probably be conjured up by the courts should anyone ever actually be charged with this. Nonetheless, it's stupid and should be changed but probably won't be for some time due to the higher priorities (i.e. restaurant carry, etc...). However, maybe we get lucky sometime and have it added on to an existing bill sometime like the last car carry modifications (i.e. definition of "loaded").
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Re: DUI law sets precedent for "operating" until 239 passes?

Postby SMMAssociates » Fri May 28, 2010 12:10 pm

FormerNavy:

Other than abolishing it entirely, I think we oughta leave it alone....

Letting the legislature get involved can cause some hilarious things.... As I mentioned, I think that the current version of the law lost it's "intent" when "Plain Sight" went away, and was somehow not updated too.

More recently, the definition of "loaded", which still is pretty bad, was modified to make it a little nicer, but it took further action to let us transport "en bloc" or "stripper" packaged ammunition legally! Nobody realized that some of this stuff comes in "speed loaders"....

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Re: DUI law sets precedent for "operating" until 239 passes?

Postby gllewellyn » Mon May 31, 2010 1:50 pm

I have always been told that as long as the keys are not in the ignition, you are not operating the vehicle. Keys in your pocket do not count. They have to be in the ignition.
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Re: DUI law sets precedent for "operating" until 239 passes?

Postby paazig » Mon May 31, 2010 6:38 pm

IANAL Reference: http://codes.ohio.gov/orc/4511.01

"(HHH) “Operate” means to cause or have caused movement of a vehicle, streetcar, or trackless trolley."

Interpretation aside, I suspect the attempt to prevent DUI may have resulted in convictions even when the definition of "operate" wasn't being met in the strictest sense but rather that upon a preponderance of the circumstances and factors at the time. I'd think it would hard for prosecution to successfully use such as a precedent for "operating" as it relates to compliance with laws applicable to concealed carry of a handgun. That being stated SB239 could be a big fix to preclude otherwise innocent people from becoming criminals on the books.
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Re: DUI law sets precedent for "operating" until 239 passes?

Postby SMMAssociates » Mon May 31, 2010 7:27 pm

gllewellyn wrote:I have always been told that as long as the keys are not in the ignition, you are not operating the vehicle. Keys in your pocket do not count. They have to be in the ignition.

Can't cite the details but there was an OVI (DUI) case just recently that was against the defendant. The defendant had come out of a bar and decided that he/she was too drunk to safely drive so went to sleep in the back seat. Having the keys was sufficient to get the conviction.

I presume that the Court's attitude assumed that the defendant could have gone from "nap mode" to "driver mode" in seconds. Seems logical.... But I can't see a conviction for "driver mode" when the defendant was asleep in the back seat.

(Might have been the front seat?)

Whether this would carry to the Felony Touching statute I don't know.... But common sense is kinda dead in the CHL law anyway. We may have two conflicting definitions - that could get the Supreme Court involved if something went that far but don't count on it.

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