State v. Starnes, 69-189

Citation254 N.E.2d 675,21 Ohio St.2d 38,50 O.O.2d 84
Decision Date14 January 1970
Docket NumberNo. 69-189,69-189
Parties, 50 O.O.2d 84 The STATE of Ohio, Appellee, v. STARNES, Appellant.
CourtUnited States State Supreme Court of Ohio

Syllabus by the Court

1. Section 4511.191, Revised Code, does not violate the search and seizure provision of the Fourth Amendment, nor the self-incrimination clause of the Fifth Amendment to the United States Constitution by providing that any operator of a motor vehicle upon the public highways in this state shall be deemed to have given consent to a chemical test to determine the alcoholic content of his blood if arrested for the offense of driving while under the influence of alcohol. (Schmerber v. California, 384 U.S. 757; Westerville v. Cunningham, 15 Ohio St.2d 121, applied.)

2. Section 4511.191(F), Revised Code, does not violate the due process clause of the Fourteenth Amendment to the United States Contitution by permitting suspension of a person's driver's license upon proof less than proof beyond a reasonable doubt that (1) 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 (2) the person was placed under arrest (3) the person refused to submit to a chemical test upon request of the officer and (4) the person was advised of the consequences of his refusal. Proceedings under Section 4511.191(F), Revised Code, are civil and administrative in nature and are intended for the protection of the traveling public, and are independent of any criminal proceedings which may be instituted pursuant to other statutes or ordinances.

3. In a hearing under Section 4511.191(F), Revised Code, to determine if the Registrar of Motor Vehicles properly suspended a person's driver's license for refusing to take a chemical test, the fact that such person has been adjudged guilty of the offense of physical control of a motor vehicle while under the influence of intoxicating liquor does not preclude a finding of reasonable ground to believe that such person was driving while under the influence of alcohol.

Appellant herein, Herbert G. Starnes, was charged by the city of Toledo with the offense of driving while under the influence of alcohol. The arresting officer asked appellant to give a chemical test specimen, but appellant refused. Subsequently, appellant pleaded guilty in Toledo Municipal Court to being in physical control of a motor vehicle while under the influence of alcohol.

Under the provisions of Section 4511.191(D), Revised Code, the Registrar of Motor Vehicles suspended appellant's driver's license because of his refusal to submit to a chemical test to determine if he was under the influence of alcohol at the time of his arrest. Appellant filed a petition in the Municipal Court, pursuant to Section 4511.191(F), Revised Code, contesting the validity of the suspension of his license.

A hearing was held in the Municipal Court, and the court affirmed the order of suspension. At the hearing, appellant contended that Section 4511.191, Revised Code, is unconstitutional. He contended also that, in a hearing under Section 4511.191(F), Revised Code, the fact that he was adjudged guilty of the offense of physical control of a motor vehicle while under the influence of intoxicating liquor precludes a finding of reasonable ground to believe he was driving while under the influence of alcohol.

The Court of Appeals affirmed the judgment of the Municipal Court.

The cause is before this court pursuant to the allowance of a motion to certify the record.

Loren G. Ishler, Toledo, for appellant.

Harry Friberg, Pros. Atty., and Harold M. Steinberg, Toledo, for appellee.

MATTHIAS, Judge.

This case brings before us questions with respect to the Ohio implied consent statute, Section 4511.191, Revised Code. That statute provides, in part, that:

'(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.

'* * *

'(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 (B) (sic) 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 of 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. * * *

'* * *

'(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, 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, and 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) * * *

'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.'

Appellant contends that Section 4511.191, Revised Code, is violative of the United States Constitution in that it:

(1) Permits unreasonable searches and seizures in contravention of the Fourth Amendment.

(2) Compels a person to be a witness against himself in a criminal prosecution in contravention of the Fifth Amendment.

(3) Denies due process of law in contravention of the Fourteenth amendment

We shall treat appellant's contentions in order.

(1) Search and Seizure.

This court has previously had occasion to consider some constitutional objections to Section 4511.191, Revised Code, in the case of Westerville v. Cunningham (1968), 15 Ohio St.2d 121, 239 N.E.2d 40. Although no Fourth Amendment issue was raised directly in that case, it is clear from the opinion therein that this court considered the question as to whether that statute permits an unreasonable search and seizure. We indicated therein that we considered the holding of the United States Supreme Court in Schmerber v. California (1966), 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908, as authorizing the administration, over objection by the accused, of the kinds of tests specified in Section 4511.191(A), Revised Code. That conclusion remains with us today, and appellant in the instant case has presented no argument which would cause us to alter that determination.

(2) Self-Incrimination.

Whether or not Section 4511.191, Revised Code, is violative of the self-incrimination clause of the Fifth Amendment was directly at issue in the Cunningham case, and we determined that it did not. Our specific holding in that case was that one accused of intoxication has no constitutional right to refuse to take a reasonably reliable chemical test, and the admission into evidence that one accused of intoxication refused to take such a test, and comment upon that fact by counsel are not violative of any constitutional privilege against self-incrimination.

Consequently, we find no merit in appellant's contention that Section 4511.191, Revised Code, violates the self-incrimination clause of the Fifth Amendment.

(3) Due...

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