Summary
discussing conduct constituting a refusal to take a chemical test
Summary of this case from State v. BrabantOpinion
No. 76-1350
Decided November 2, 1977.
Motor vehicles — Driving while intoxicated — Refusal to take chemical test — Suspension of license — Hearing — R.C. 4511.191 — Refusal shown, when.
1. The fact of refusal to take the chemical test provided for in R.C. 4511.191 appears whenever a preponderance of all the evidence shows that the person who was given the request and advice in the statutory manner and form has thereafter conducted himself in such a way as to justify a reasonable person in the position of the requesting officer to believe that such requested person was capable of refusal and manifested unwillingness to take the test.
2. In a hearing conducted pursuant to R.C. 4511.191(F), the trial court shall impose the suspension provided for in R.C. 4511.191(D) only if it finds that the arrested person has failed to show error in the action taken by the registrar of motor vehicles. The burden is on the licensee to prove, by a preponderance of the evidence, that there was error. ( Hoban v. Rice, 25 Ohio St.2d 111, approved and followed.)
3. Where the sole issue before the trial court is whether the licensee refused, upon request, to submit to a breathalyzer test the licensee may present evidence that the breathalyzer device was defective, or that he was physically incapable of delivering a breath sample, in order to meet the burden of proving error in the action taken by the registrar of motor vehicles.
APPEAL from the Court of Appeals for Wood County.
On February 2, 1976, appellee, Carlton C. Turner, was arrested by Ohio State Patrol Sergeant David G. Johnson, and charged with operating a motor vehicle while under the influence of alcohol, in contravention of R.C. 4511.19. Turner later entered a plea of guilty to this charge, for which he was fined $150 and sentenced to serve three days in jail.
Shortly after the arrest appellee was taken to the Oak Harbor police station, where Sergeant Johnson requested that he submit to a chemical sobriety test, as provided in R.C. 4511.191. Turner agreed to cooperate after he was advised that a refusal to submit to a breathalyzer test would result in a suspension of his driver's license for a period of six months. However, despite his verbal acquiescence, appellee failed to provide a sample of breath for the breathalyzer device, having been afforded at least 12 separate opportunities to do so.
R.C. 4511.191 provides, in part:
"(A) Any person who operates a motor vehicle upon the public highways in this state shall be deemed to have given consent to a chemical test or tests of his blood, breath, or urine for the purpose of determining the alcoholic content of his blood if arrested for the offense of driving while under the influence of alcohol. The test or tests shall be administered at the direction of a police officer having reasonable grounds to believe the person to have been driving a motor vehicle upon the public highways in this state while under the influence of alcohol. The law enforcement agency by which such officer is employed shall designate which of the aforesaid tests shall be administered.
"(B) * * *
"(C) Any person under arrest for the offense of driving a motor vehicle while under the influence of alcohol shall be advised at a police station of the consequences of his refusal to submit to a chemical test designated by the law enforcement agency as provided in division (A) of this section. The advice shall be in a written form prescribed by the registrar of motor vehicles and shall be read to such person. The form shall contain a statement that the form was shown to the person under arrest and read to him in the presence of the arresting officer and one other police officer or civilian police employee. Such witnesses shall certify to this fact by signing the form.
"(D) If a person under arrest for the offense of driving a motor vehicle while under the influence of alcohol refuses upon the request of a police officer to submit to a chemical test designated by the law enforcement agency as provided in division (A) of this section, after first having been advised of the consequences of his refusal as provided in division (C) of this section, no chemical test shall be given, but the registrar of motor vehicles, upon the receipt of a sworn report of the police officer that he had reasonable grounds to believe the arrested person had been driving a motor vehicle upon the public highways in this state while under the influence of alcohol and that the person refused to submit to the test upon the request of the police officer and upon the receipt of the form as provided in division (C) of this section certifying that the arrested person was advised of the consequences of his refusal, shall suspend his license or permit to drive, or any nonresident operating privilege for a period of six months, subject to review as provided in this section; or if the person is a resident without a license or permit to operate a motor vehicle in this state, the registrar shall deny to the person the issuance of a license or permit for a period of six months after the date of the alleged violation.
"(E) Upon suspending the license or permit to drive or nonresident operating privilege of any person, as provided in division (D) of this section, the registrar shall immediately notify the person in writing, at his last known address, and inform him that he may petition for a hearing as provided in division (F) of this section. If a person whose license, permit to drive, or nonresident operating privilege has been suspended, petitions for a hearing or appeals any decision which is adverse to him, the suspension shall begin at the termination of any hearing or appeal unless the hearing or appeal resulted in a decision favorable to the person.
"(F) Any person whose license or permit to drive or nonresident operating privilege has been suspended under this section, may, within twenty days of the mailing of the notice provided above, file a petition in the municipal court or the county court, or in case such person is a minor in the juvenile court, in whose jurisdiction such person resides or in whose jurisdiction the arrest occurred if such person is not a resident of this state, agreeing to pay the cost of the proceedings and alleging error in the action taken by the registrar of motor vehicles under division (D) of this section or in one or more of the matters within the scope of the hearing as provided in this section, or both. Such petitioner shall notify the registrar of the filing of the petition and send him a copy. The scope of such hearing shall be limited to the issues of whether a police officer had reasonable ground to believe the person had been driving a motor vehicle upon the public highways in this state while under the influence of alcohol, whether the person was placed under arrest, whether he refused to submit to the test upon request of the officer, and whether he was advised of the consequences of his refusal.
"(G) The registrar shall furnish the court a copy of the registrar's affidavit as provided in division (C) of this section.
"In hearing the matter and determining whether such person has shown error in the action taken by the registrar of motor vehicles under division (D) of this section, the court shall decide such issue upon the registrar's certified affidavit and such additional relevant, competent, and material evidence as either the registrar or the person whose license is sought to be suspended submits.
"* * *
"If the court finds from the evidence submitted that such person has failed to show error in the action taken by the registrar of motor vehicles under division (D) of this section or in one or more of the matters within the scope of the hearing as provided in division (F) of this section, or both, then the court shall assess the cost of such proceeding against such person and shall impose the suspension provided in division (D) of this section * * *."
Sergeant Johnson subsequently notified appellant that Turner had refused, upon request, to submit to the chemical sobriety test. Appellant, by certified letter, informed Turner that his driver's license would be suspended for a period of six months, and that he might petition for a hearing on this matter, as provided in R.C. 4511.191(F).
It is well settled that the use of public highways by motor vehicles does not amount to an absolute and unqualified right, but, rather, is a privilege which may be limited, controlled and regulated by the responsible public authority in the exercise of the police power whenever, and to the extent, necessary to provide for and promote the safety, peace, health and general welfare of the people. However, in Bell v. Burson (1971), 402 U.S. 535, 539, the United States Supreme Court held that "[o]nce [driver's] licenses are issued * * * their continued possession may become essential in the pursuit of a livelihood. Suspension of issued licenses thus involves state action that adjudicates important interests of the licensees. In such cases the licenses are not to be taken away without that procedural due process required by the Fourteenth Amendment. [Citations omitted.] This is but an application of the general proposition that relevant constitutional restraints limit state power to terminate an entitlement whether the entitlement is denominated a `right' or a `privilege.'" (Citations omitted.) The court, in Bell, at pages 541, 542, went on to state that the hearing required by the Due Process Clause must be "meaningful" and "appropriate to the nature of the case."
In our opinion the General Assembly has ensured that a licensee will be afforded procedural due process by requiring that, prior to the effective date of a license suspension, the licensee be notified in writing that he or she may petition for a hearing. Pursuant to R.C. 4511.191(F), such hearing is limited to consideration of four elements essential to the decision whether the driver's license shall be suspended, namely:
(1) whether the police officer had reasonable grounds to believe the person had been driving a motor vehicle upon the public highways in this state while under the influence of alcohol;
(2) whether the person was placed under arrest;
(3) whether he refused to submit to the test upon the request of the police officer; and
(4) whether he was advised of the consequences of his refusal.
A hearing was held in the Perrysburg Municipal Court, and the court affirmed the registrar's order of suspension. Appellee then appealed to the Court of Appeals. The appellate court reversed, concluding that Turner had not manifested an unwillingness to submit to the test, and that although there was a failure to provide a breath sample, it was "not clear whether this result was caused by the design of the machine or * * * [Turner's] own physical incapabilities." The Court of Appeals ordered appellant to restore appellee's driver's license.
The cause is now before this court upon an allowance of appellant's motion to certify the record.
Mr. John S. Cheetwood, prosecuting attorney, Mr. Chester H. Marcin and Mr. John M. Dunipace, for appellant.
Messrs. Kline, Corogin Cottrell and Mr. Thomas L. Corogin, for appellee.
R.C. 4511.191, the implied-consent statute, is "a legislative response to the mischief of drunken drivers." State v. Hurbean (1970), 23 Ohio App.2d 119, 131. The general purpose of the statute is "the protection of the public * * * and to give effect to that general purpose there is prescribed separate from, independent of, and cumulative to criminal prosecution a clear remedy of suspending the licenses of those drivers who refuse to take a sobriety test. We construe the statute to suppress the mischief and advance the remedy." State v. Hurbean, supra, at pages 131-132.
Chemical sobriety tests such as the one here involved also benefit the motor vehicle operator in certain instances since they eliminate mistakes which may follow from merely visual or objective observation and serve to insulate from liability those who have not drunk to excess but are involved in an automobile collision while having the odor of alcohol on their breath. In addition, the results of such a test may cause the dismissal of a drunken driving charge where an individual's conduct creates the appearance of intoxication when he is actually suffering from physical conditions over which he has no control.
The sole issue before this court is whether appellee refused, upon the request of Sergeant Johnson, to submit to the breathalyzer test. It should be observed that since proceedings under R.C. 4511.191(F) are civil and administrative in nature, rather than criminal, a burden of proof less than proof beyond a reasonable doubt is sufficient for a valid suspension of a driver's license. State v. Starnes (1970), 21 Ohio St.2d 38.
In order to determine what constitutes a refusal, it has been remarked that "[t]he fact of refusal to take the chemical test provided in R.C. 4511.191 appears whenever a preponderance of all the evidence shows that, under the circumstances described in the statute, the person who was given the request and advice in the statutory manner and form has thereafter conducted himself in such a way as to justify a reasonable person in the position of the requesting officer reasonably to believe that such requested person was capable of refusal and manifested unwillingness to take the test." State v. Hurbean, supra, at pages 126-127. Similarly, this court has stated that "[t]he licensee's words, acts, overall conduct and other manifestations of a willingness or unwillingness to take the sobriety test will be considered by the trier of the facts in determining whether there was a refusal." Hoban v. Rice (1971), 25 Ohio St.2d 111, 117.
At the municipal court hearing Sergeant Johnson testified that he was a duly licensed breathalyzer operator, and that a sobriety test administered earlier on the evening of February 2, 1976, approximately an hour and one half prior to appellee's contact with the device, revealed that it was functioning properly. The record also establishes that Sergeant Johnson gave appellee precise instructions on how to supply a breath sample, allowing Turner to blow through the mouthpiece while it was detached from the device. When appellee failed to deliver a sample Sergeant Johnson remarked that, in his opinion, Turner was blocking the aperture of the mouthpiece with his tongue.
This court viewed a video tape recording of the testing procedure, but this exhibit proved to be largely inconclusive as to the issue of refusal. Because the television camera focused on the backs of Sergeant Johnson and Mr. Turner it was not possible to observe appellee's mouth in contact with the mouthpiece of the breathalyzer.
Appellee was given several more opportunities to provide a sample, with Johnson rechecking the device to ascertain whether it was free of obstructions. After more than a dozen purported attempts to blow into the device, Johnson apparently concluded that appellee was unwilling to supply a sample. Johnson then purged the breathalyzer device and confirmed that it was free of obstructions and was functioning properly.
We hold, as a matter of law, that reasonable minds could only conclude that a refusal was shown by a preponderance of the evidence. Our decision is in harmony with the decisions of other state courts.
In Application of Kunneman (Okla.App. 1972), 501 P.2d 910, the licensee was instructed to blow into the mouthpiece of a breathalyzer machine. The officer involved testified that the licensee sucked on the mouthpiece instead of blowing into it. The officer stated that he repeated his instruction four or five times, and each time the licensee sucked on the mouthpiece. The court upheld the order revoking driving privileges, reasoning that although the licensee orally stated that he would submit to the sobriety test, his conduct amounted to a non-verbal refusal.
In Newman v. Stinson (Ky.App. 1972), 489 S.W.2d 826, the licensee exhaled into a breathalyzer device but the operator of the machine was unable to obtain a reading from the sample. The licensee then refused to deliver another sample on the ground that he had sufficiently complied with the law. The court held that in the absence of a showing of impossibility of compliance, or the likelihood of harm resulting therefrom, the requirement of submission to the test contemplates that a sufficient sample be given to permit a test to be made and a test result obtained.
In Woolman v. State, Dept. of Motor Vehicles (1976), 15 Wn. App. 115, 547 P.2d 293, the licensee blew once into the mouthpiece of a breathalyzer, but the sample was insufficient to obtain a reading. She was then asked to blow harder, and responded that she could do no better. The court upheld the order revoking her driver's license, reasoning that if she were unable to blow an amount of air sufficient to activate the machine, the burden was upon her to present evidence excusing her inability to comply.
R.C. 4511.191(G) establishes that the licensee must show error in the action taken by the registrar, and this court has stated that "[t]he burden is on * * * [the licensee] to prove by a preponderance of the evidence that there was error." Hoban v. Rice, supra ( 25 Ohio St. 2d at 116). Appellee did not attempt to show that the breathalyzer device was defective, nor did he allege that he was physically incapable of delivering a breath sample. Thus, appellee has failed to show error in the action taken by appellant, and the judgment of the Court of Appeals must be reversed.
Although the question is not directly presented by the instant appeal, this court acknowledges that a "refusal" may be distinguished from a physical inability to perform a designated test. See, e.g., State v. Rajala (Ala.App. 1975), 310 So.2d 223, where the court upheld a lower court finding that a driver did not refuse to take a breath test. The licensee had testified that she tried to inflate a balloon but was incapable of completing the test because she suffered from, inter alia, asthma and emphysema. In Application of Scott (1958), 5 A.D.2d 859, 171 N.Y. Supp. 2d 210, the court annulled an order revoking the petitioner's operator's license. The licensee testified that he attempted to blow up a balloon, in order to deliver a breath sample, but that his false teeth kept getting in the way, and that they "came down" and cut off his breath.
Judgment reversed.
O'NEILL, C.J., HERBERT and SWEENEY, JJ., concur.
P. BROWN, J., concurs in the judgment.
W. BROWN and LOCHER, JJ., dissent.
When the majority opinion rules as a matter of law that the appellee in the instant cause refused to submit to a chemical test for intoxication, it extends the evidentiary indicia of refusal established by this court in Hoban v. Rice (1971), 25 Ohio St.2d 111, and places an evidentiary burden upon the licensee in an R.C. 4511.191 hearing which is neither fair nor warranted by the purpose of the statute.
Paragraph three of the syllabus in Hoban v. Rice, supra, at page 111, defines refusal in the following manner:
"For the purpose of R.C. 4511.191, a refusal to submit to a chemical test of the blood, breath or urine will occur where a person, by his acts, words, or general conduct, manifests an unwillingness to submit to the test. * * *" (Emphasis added.)
The only evidence of refusal introduced at appellee's R.C. 4511.191 hearing was the patrolman's testimony that he thought appellee "was holding his tongue" on the breathalyzer tube while he was "trying to blow into it." In contrast, the rest of the evidence indicated that appellee verbally assented to take the breathalyzer test; that he attempted to blow into the breathalyzer tube over a dozen times; that he asked the patrolman to demonstrate the use of the breathalyzer for him; that he appeared to be generally cooperative and truthful with the policeman; and that he willingly participated in all the nonchemical tests for intoxication which the officer proposed.
See footnote No. 4.
Under Hoban, evidence of refusal is determined by the licensee's "acts, words or general conduct." In the instant cause, appellee's "acts, words or general conduct" did not manifest "an unwillingness" to take the test. Since the appellee did not refuse under the indicia set forth in Hoban, the majority looks to other evidence — the inability of either party to demonstrate whether the breathalyzer was functioning properly when appellee took the test — to arrive at its finding. By finding this other evidence sufficient to indicate refusal, the majority extends the indicia of refusal set forth in paragraph three of the Hoban syllabus by requiring the licensee in an R.C. 4511.191 hearing to prove that the breathalyzer was not functioning when he took the test. Obviously the licensee is at a marked disadvantage under such an extension of the Hoban opinion.
Moreover, the new burdens placed on the licensee by the majority opinion fail to effectuate the intention of the statute. The purpose of R.C. 4511.191 is not merely to discourage drunken driving by suspending the licenses of those arrested for driving while under the influence of alcohol. Under R.C. 4511.99 such persons are already subject to a three-days' imprisonment; and a person may have his license suspended under R.C. 4511.191 for refusal to submit to the test, even though he is cleared on the drunken driving charge. The purpose of R.C. 4511.191 is to discourage any person from refusing to take the chemical intoxication tests when he is arrested for drunken driving. Punishing these persons for their inability to explain why the machine did not function may make it easier to suspend licenses, but it does not deter refusals.
Because the majority opinion alters Ohio law in a manner which is unfair to licensees and which does not further the purpose of R.C. 4511.191, I dissent.
LOCHER, J., concurs in the foregoing dissenting opinion.