Many people believe that they cannot be charged with OWI because the police officer did not see them operating the vehicle. In Indiana, however, you can still be convicted of OWI even if you are outside of the vehicle when the police arrive.

In a recent Indiana case, deputies located the defendant’s severely damaged rolled vehicle in a ditch. Although the defendant was not in the vehicle when it was discovered, the defendant was found nearby. He insisted that he had not been in an accident, but he was injured, the vehicle was registered to him, and his personal effects were found in and around the vehicle. He told the deputy that he was returning home and only after several minutes had passed did he mention that someone else had been driving the vehicle. However, no evidence was found to support his assertion that there was another person in the car. From the location of the defendant’s vehicle, his physical condition, and the lack of evidence of a second person, the Court of Appeals inferred that the defendant was in actual physical control of his vehicle when it left the highway and rolled into the ditch and that he met the statutory definition of “operate.” Therefore, the State proved beyond a reasonable doubt that the defendant “operated” a vehicle.

The Indiana Code defines “operate” as “to navigate or otherwise be in actual physical control of a vehicle.” Whether a defendant has “operated” a vehicle is a question of fact to be determined by examining the surrounding circumstances. Courts have considered the following factors in assessing whether a person has operated a vehicle: 1) the location of the vehicle when discovered; 2) whether the car was moving when discovered; 3) any additional evidence indicating that the defendant was observed operating the vehicle before he or she was discovered; and 4) the position of the automatic transmission. This is not an exclusive list. Courts will consider any evidence that leads to a reasonable inference that a person was operating to support an OWI conviction.