Summary
finding that a defendant who used his feet to propel a motorcycle or coasted whenever the road grade allowed was guilty of operating a motor vehicle without a headlight
Summary of this case from Mikkalson v. City of S. St. PaulOpinion
No. 91 TRC 48774 A B.
Decided February 25, 1992.
Debra D. Fennell, Assistant City Prosecutor, for the state.
Leslie I. Gaines, Jr., for the defendant.
This matter came before this court on February 6, 1992 for both a motion to suppress and trial, both of which were consolidated by agreement of all parties. The testimony, which is basically undisputed as to the material factual issues, is as follows:
1. Cincinnati Police Officer Arthur Schutz, who was in a marked police car and full uniform, observed the defendant, Paul M. Cole, "operate" a Harley Davidson motorcycle westbound on River Road in a lane of traffic designated for moving vehicles at approximately 3:25 a.m.;
2. The reason that Officer Arthur Schutz noticed Paul M. Cole on River Road was that the Harley Davidson in question did not have a headlight on as required pursuant to Cincinnati Municipal Code 503-1;
3. The operation of the Harley Davidson motorcycle by Paul M. Cole was described by Officer Schutz as follows: defendant was seated on the vehicle, using his feet to propel the vehicle and coasting on the vehicle whenever the grade of the roadway allowed same;
4. Defendant was stopped for investigation of driving under the influence of alcohol;
5. Defendant's physical appearance and his performance on various psychomotor tests indicated to Officer Schutz that Paul M. Cole may be impaired by the use of alcohol and further testing at District Three (3) would be appropriate;
6. Defendant was arrested for driving under the influence of alcohol and a headlight violation, taken to District Three (3) for processing, where the defendant refused to submit to a chemical analysis of his breath; and
7. Ferdinand Meinor, a witness called on behalf of the defendant, testified that the electrical system of the Harley Davidson prevented that vehicle from being started on the night in question.
Based on the testimony presented and the authority contained in both Beck v. Ohio (1964), 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142, and State v. Taylor (1981), 3 Ohio App.3d 197, 3 OBR 224, 444 N.E.2d 481, Police Officer Schutz had reasonable and articulated belief of the defendant's "indicia of intoxication," and, as such, defendant's motion to suppress is overruled. For the reasons set forth in this decision, defendant is found guilty of both driving under the influence of alcohol in violation of R.C. 4511.19(A)(1) and operating a motor vehicle in the night season without a headlight in violation of Cincinnati Municipal Code 503-1.
Legal Analysis
The purpose of the Ohio Legislature enacting statutes prohibiting the operation of a motor vehicle while that person is under the influence of alcohol was succinctly set forth in the case of Mentor v. Giordano (1967), 9 Ohio St.2d 140, 38 O.O.2d 366, 224 N.E.2d 343, where the Ohio Supreme Court held that the primary purpose of statutes and ordinances making it an offense to operate a motor vehicle while under the influence of an intoxicating liquor is to protect the users of streets and highways from the hazard of vehicles under the management of persons who have consumed alcoholic beverages to such an extent as to appreciably impair their faculties.
Both the state of Ohio and the defendant acknowledged that the sole issue before this court is whether the defendant, sitting on his Harley Davidson motorcycle and propelling that vehicle by use of his feet and coasting where the grade of the roadway allowed same, operated that vehicle within the purview of R.C. 4511.19 et seq. In deciding this issue, this court will accept as true the testimony of Ferdinand Meinor that the electrical system of the Harley Davidson motorcycle prevented that vehicle from being operated in its usual and customary manner.
The term "operate" has been defined by the Ohio Supreme Court in State v. Cleary (1986), 22 Ohio St.3d 198, 199, 22 OBR 351, 352, 490 N.E.2d 574, 575, as follows:
"* * * Operation of a motor vehicle within contemplation of the statute is a broader term than mere driving and a person in the driver's position in the front seat with the ignition key in his possession indicating either his actual or potential movement of the vehicle while under the influence of alcohol or any drug of abuse can be found in violation of R.C. 4511.19(A)(1)."
Additionally, the term "operate" has been defined to include "`not only the motion of the vehicle but also acts which engage the machinery of the vehicle that alone or in sequence, will set in motion the motive power of the vehicle.'" State v. Wymbs (1984), 10 Ohio Misc.2d 26, 27, 10 OBR 404, 405, 462 N.E.2d 195, 196.
The defendant argues that because of the malfunction of the electrical system of the Harley Davidson motorcycle, such malfunction which prevented the motorcycle from being operated and/or used in its intended and customary manner, such malfunction must dictate that the defendant be acquitted of these charges. There are numerous reported cases in Ohio dealing with disabled vehicles and the successful prosecution of the drivers of those disabled vehicles. In Toledo v. Voyles (1984), 14 Ohio App.3d 419, 14 OBR 538, 471 N.E.2d 823, the Lucas County Court of Appeals held that the operability of the vehicle is not an element of the offense of being in "actual physical control" of a vehicle while under the influence of alcohol. This court is fully aware that the appellate court in Voyles was interpreting a city of Toledo municipal ordinance dealing with "actual physical control" and not dealing with the Ohio Revised Code sections pertaining to the operation of a motor vehicle pursuant to R.C. 4511.19 et seq.
The case most on point which would govern this court's disposition of the arguments and evidence presented on February 6, 1992 is State v. Davidson (Nov. 18, 1987), Hamilton App. Nos. C-860858 and C-860859, unreported, where the court upheld a conviction of a person operating a disabled vehicle based on the stipulated facts "that the automobile was headed in the wrong direction on a public highway, that it was mechanically disabled, that it was being pushed by another vehicle with the appellant steering the disabled vehicle * * *." The appellate court in Davidson at 2-3 held as follows:
"R.C. 4511.01(A) defines a vehicle as `every device, including a motorized bicycle, in, upon, or by which any person or property may be transported or drawn upon a highway * * * except devices other than bicycles moved by human power.' The stipulated facts establish not only that the appellant was operating a vehicle on a highway with a prohibited concentration of alcohol in his body, but also that he was operating the vehicle in the wrong direction on the highway."
Since the First District Court of Appeals has affirmed the conviction of an individual operating a motor vehicle while that vehicle was disabled, should defendant's operation of a disabled motorcycle be treated differently or should the results mandated by State v. Davidson be applicable in this factual situation?
Again, the First District Court of Appeals has provided some guidance in resolving the issue before this court. In State v. Shepard (1981), 1 Ohio App.3d 104, 1 OBR 407, 439 N.E.2d 920, the appellate court applied the driving under the influence laws of the state of Ohio to the human operation of a bicycle. In Shepard, the court at 106, 1 OBR at 409, 439 N.E.2d at 921, held that "* * * [f]irst and foremost, there is no problem with the public interest in prohibiting persons from operating bicycles on the streets and highways while under the influence of alcohol. R.C. 4511.19, proscribing driving while intoxicated, includes the word `vehicle,' and R.C. 4511.01(A) defines that word in such a fashion that a bicycle moved by human power — as in the instant scenario — is included. Moreover, R.C. 4511.01(G) further supports the inclusion of bicycles within the comprehension of the word `vehicle.'"
Cases from other jurisdictions throughout Ohio which have upheld convictions for operating a vehicle which was disabled are Toledo v. Voyles, supra, State v. Reynolds (July 1, 1985), Ross App. No. 1128, unreported, 1985 WL 9376, and North Olmsted v. Patton (Apr. 18, 1985), Cuyahoga App. No. 48946, unreported, 1985 WL 7970. In the latter two cases, the appeals court upheld convictions for driving under the influence of alcohol for those individuals who claimed that their vehicles were inoperable due to being stuck in either mud or snow. In both of the instances, the defendants were in the driver's seats and were accelerating their engines in an attempt to extricate themselves from their particular dilemmas.
Since it is undisputed that the defendant was in a moving lane of traffic while propelling his Harley Davidson motorcycle, his inebriate condition presented a substantial a risk of physical harm to himself and to others, whether the motorcycle in question was disabled or operable. It should make no material difference to this court, or to any other court in deciding a similar factual situation, whether the vehicle which was on the roadway and moving was mechanically operational. The language contained in the case of State v. Degler (Feb. 21, 1990), Wayne App. No. CA 2491, unreported, 1990 WL 15200, is enlightening why the disability of this particular motorcycle is immaterial. The court in Degler held that it was clearly not the intent of the legislature to encourage intoxicated persons with impaired faculties and very questionable judgment, and with the capability of putting the vehicle in motion, to climb behind the wheel and to be in a position to put the vehicle in motion. The concerns as set forth in both Degler and State v. Cleary, supra, are the exact factual problem which is presented to this court.
The only other relevant reported case on point in Ohio is Jones v. Santel (1955), 164 Ohio St. 93, 57 O.O. 106, 128 N.E.2d 36, where the Ohio Supreme Court held that a dismounted bicyclist was a pedestrian rather than a operator. The facts presented to this court show beyond a reasonable doubt that Paul M. Cole was mounted upon the motorcycle, and, as such, within the purview of R.C. 4511.19 et seq.
For the reasons set forth in this decision, the defendant is found guilty of both driving under the influence of alcohol pursuant to R.C. 4511.19(A)(1) and operating a vehicle without a headlight in violation of Section 503-1 of the Cincinnati Municipal Code.
Judgment for the state.