Brownfield v. McCullion, 84AP-105

• Decision Date: 16 August 1984
• Docket Number: No. 84AP-105,84AP-105
• Citation: 20 Ohio App.3d 197,485 N.E.2d 745,20 OBR 242
• Parties: , 20 O.B.R. 242 BROWNFIELD, Appellant, v. McCULLION, Registrar, Appellee.
• Court: Ohio Court of Appeals

Page 197

20 Ohio App.3d 197

485 N.E.2d 745, 20 O.B.R. 242

BROWNFIELD, Appellant, v. McCULLION, Registrar, Appellee.

No. 84AP-105.

Court of Appeals of Ohio, Tenth District, Franklin County.

Aug. 16, 1984.

Syllabus by the Court

1. While mere physical control of a vehicle may be insufficient to constitute operation of the vehicle, a stationary vehicle is being operated within the contemplation of R.C. 4511.19 where a person is seated behind the steering wheel of the vehicle with the ignition key in the ignition and the motor running.

2. A substantial delay beyond the two-hour period specified in R.C. 4511.19 by a police officer in requesting that a person submit to a chemical test pursuant to R.C 4511.191 permits an inference that the test was offered and refused at a time when the results thereof would not constitute competent or probative evidence. (Barber v. Curry [1974], 40 Ohio App.2d 346, 319 N.E.2d 367 , distinguished.)

James M. Jewett, Columbus, for appellant.

Gregory S. Lashutka, City Atty., Ronald J. O'Brien, City Prosecutor, David E. Tingley and Joyce B. Link, Columbus, for appellee.

WHITESIDE, Judge.

This is an appeal from a judgment of the Franklin County Municipal Court imposing the statutory suspension of appellant Robert Wendell Brownfield's driving rights for his refusal to submit to a chemical test pursuant to R.C. 4511.191. In support of his appeal, appellant raises four assignments of error as follows:

"I. The trial court erred in sustaining the report of the court referral officer and finding that the arresting officers had reasonable ground to believe that Appellant had been driving a motor vehicle upon the public highways of this state while under the influence of alcohol and the trial court erred in holding that it is not required to follow the holding of the case of McCarty vs. Herdman, and erred in allowing the use of the alleged admissions of Appellant against him in the trial court.

"II. The trial court erred in sustaining the report of the referee and finding that Appellant refused to submit to a chemical test upon request of the officer, and in holding that there is no time limit within which one must submit to a chemical test pursuant to section 4511.191 O.R.C., erred in finding that Appellant was advised of the consequences of refusal to take a test, and erred in failing to find that Respondent failed to immediately inform Appellant as required by section 4511.191(E) O.R.C.

"III. The trial court erred in refusing to adequately consider the credibility of the witnesses, in adopting, without adequately reviewing, the recommendations of the court referee, basing his decision on unreasonable suppositions, in failing to apply the proper standard to such hearing, and in adopting the recommendations and findings of the referee.

"IV. The trial court erred in failing and refusing to grant to Appellant work related driving privileges during the period of suspension."

The first assignment of error pertains to the initial issue established by R.C. 4511.191(F) in such proceedings as to "whether the law enforcement officer had reasonable ground to believe the petitioner was operating a motor vehicle upon the public highways in this state while under the influence of alcohol." Appellant contends that the officers had no such reasonable grounds because they did not observe him actually drive his motor vehicle.

The trial court adopted the findings of fact of a referee who heard the matter, including a finding that, when the officers first came into contact with appellant, his motor vehicle was parked at the curb, and he was seated behind the wheel of the motor vehicle with the engine running.

The officers approached appellant because they had received a radio message from another cruiser indicating that a citizen had reported to the officer operating the other cruiser that he had observed a vehicle being operated erratically on the same street. The citizen noted the license number of that vehicle and gave it to the police, and the officers ascertained that the vehicle was registered to appellant and obtained his address and drove there within minutes after receiving the message. The officers parked their cruiser across the street from appellant's automobile, walked across the street, requested appellant to shut off the motor of his vehicle and asked him if he had been driving on Arcadia. Appellant responded that he had been driving his vehicle. The officers then asked appellant to get out of his automobile, which he did, at which time the officers "noticed a strong odor of alcohol, slurred speech and gesturing" on appellant's part. Appellant either refused or failed to take a field sobriety test requested by the officers at the scene. He then was arrested and taken to the Franklin County Jail.

Although the evidence is conflicting, the factual findings by the referee, adopted by the trial court, are supported by the testimony of the police officers, which conflicted in several respects from that of appellant himself.

Appellant first contends that his response to questioning by the police officers that he had been driving cannot be the predicate for reasonable cause to believe he had been operating his motor vehicle because he was not advised of his Miranda rights. In State v. Buchholz (1984), 11 Ohio St.3d 24, 462 N.E.2d 1222, the Supreme Court held that Miranda warnings must be given prior to any custodial interrogation where an individual is suspected of committing a misdemeanor. However, a proceeding pursuant to R.C. 4511.191 is a civil, rather than a criminal, proceeding. State v. Starnes (1970), 21 Ohio St.2d 38, 254 N.E.2d 675 . In addition, the failure to give Miranda warnings ordinarily operates to exclude evidence obtained by the custodial interrogation at the trial of the criminal charges, not to vitiate or void an arrest.

Underlying appellant's contention in this respect is a question not briefed by the parties but which is inherent in the issue raised. Appellant assumes that one cannot be found operating a motor vehicle unless he is observed driving the vehicle, that is, that the vehicle must be in motion. However, the word "operate" is a broader term than the word "drive" when used with respect to a motor vehicle, and, while there is a conflict of authority, many jurisdictions have found that a person may operate a vehicle even though the vehicle is not moving. See Annotation (1979), 93 A.L.R.3d 7. While there has been no authoritative definition of what constitutes operation of a motor vehicle within the contemplation of R.C. 4511.19, the Supreme Court in Mentor v. Giordano (1967), 9 Ohio St.2d 140, 224 N.E.2d 343 , held in paragraph three of the syllabus that " * * * a charge of operating a motor vehicle while under the influence of intoxicating liquor may apply where a stationary vehicle is involved * * * " without further explanation, although Judge Zimmerman in the opinion at 145, 224 N.E.2d 343 observed:

"There are many reported cases dealing with the subject of operating a motor vehicle while under the influence of intoxicating liquor, and they are in conflict. Some hold that the term, 'operate,' as used in a statute or ordinance connotes motion, and, unless the vehicle is in motion, there is no offense. Other cases hold, in particular circumstances, that 'operate' may apply to a stationary vehicle, where it is plain that the operator is in a thoroughly intoxicated state and obviously has moved or intends to move the vehicle."

The Municipal Court of Canton, in State v. Williams (1969), 20 Ohio Misc.51, 251 N.E.2d 714 , and the Hamilton County Municipal Court in State v. Martin (1982), 5 Ohio Misc.2d 22, 450 N.E.2d 306, both came to the conclusion that a person seated behind the wheel of a motor vehicle with the motor running may be in actual physical control of the vehicle but is not operating the vehicle within the contemplation of R.C. 4511.19. The rationale of these decisions is that the legislature necessarily intended a difference between actual physical control of a motor vehicle and operation of a motor vehicle since R.C. 4511.19 was amended effective October 21, 1953, to delete a prohibition against actual physical control of a vehicle, leaving only the prohibition against operation of a motor vehicle while under the influence of intoxicating liquor. While mere physical control of a vehicle may be insufficient to constitute operation of the vehicle within the contemplation of R.C. 4511.19, to constitute physical control it is unnecessary that the person sitting behind the steering wheel has inserted the key in the ignition and started the motor of the vehicle. Rather, as expressly held in the syllabus of Cincinnati v. Kelley (1976), 47 Ohio St.2d 94, 351 N.E.2d 85 :

"To be in actual physical control of an automobile * * * a person must be in the driver's seat of the vehicle, behind the steering wheel, in possession of the ignition key, and be in such condition that he is physically capable of starting the engine and causing the vehicle to move."

Here, appellant was two steps beyond the requirements for actual physical control because not only was he seated behind the steering wheel and in possession of the ignition key, but the ignition key had been inserted in the ignition, and the motor of the vehicle had been started and was running. Furthermore, appellant was in such a position that he could have caused the vehicle to move merely by placing it in gear. Such additional activity is sufficient to constitute operation of the vehicle. In other words, consistent with Mentor, supra, a stationary vehicle is being operated where a person is seated behind the steering wheel of the vehicle with the ignition key in the ignition and the motor running. While it would...