Bryan v. Hudson, 95-1513
| Decision Date | 05 February 1997 |
| Docket Number | No. 95-1513,95-1513 |
| Citation | 77 Ohio St.3d 376,674 N.E.2d 678 |
| Parties | The CITY OF BRYAN, Appellee, v. HUDSON, Appellant. |
| Court | Ohio Supreme Court |
SYLLABUS BY THE COURT
For purposes of establishing a valid consent or refusal to take a breath-alcohol-concentration test in the context of an administrative license suspension pursuant to R.C. 4511.191, the notice requirement of R.C. 4511.191(C) is satisfied by reading to the arrestee the language of R.C. 4511.191(C)(2)(b) as set forth on the top portion of BMV Form 2255.
On August 23, 1994, appellant, Robert S. Hudson, was arrested by Officer Jeremy Jones of the Bryan Police Department for speeding, operating a motorcycle without a helmet, and operating a motor vehicle while under the influence of alcohol. Officer Jones transported appellant to the Bryan police station, where he read the top portion of the Bureau of Motor Vehicles ("BMV") Form 2255 to appellant, advised him of his Miranda rights, asked him to submit to a breath-alcohol-concentration ("BAC") test, and advised him of his right to obtain an alternate chemical test at his own expense. After the appellant refused to submit to the BAC test, Officer Jones suspended appellant's driver's license pursuant to the administrative license suspension ("ALS") provisions of R.C. 4511.191.
On August 25, 1994, appellant filed an ALS appeal and a request for occupational driving privileges in the Bryan Municipal Court, in which he asserted that his license suspension should be terminated because the arresting officer failed to inform him of the consequences of refusing to be tested or of submitting to the requested test. At the September 2, 1994 ALS hearing, Officer Jones testified that when he and the appellant arrived at the police station, he read appellant the "top portion" of BMV Form 2255 verbatim in front of a witness and that appellant said he understood what was read to him. The trial court rejected appellant's assertion that he had not been properly advised of the consequences of a refusal to take the BAC test. Accordingly, the trial court denied appellant's appeal of his ALS for refusing to submit to the BAC test.
The court of appeals affirmed the appellant's conviction, holding that "(1) the advice prescribed by R.C. 4511.191(C)(2)(b) and as set forth on BMV form 2255, if read verbatim to an arrested person by the arresting officer, is sufficient to satisfy the statutory requirement that he be advised of the consequences of taking or not taking the chemical test and that the arresting officer need not specify the duration of the suspension for an individual arrestee in order to comply with the notice provisions of R.C. 4511.191(C); [and] (2) the trial court did not err in finding that appellant had been adequately advised of his statutory rights before he refused to take the BAC test * * *."
The court of appeals also certified that its decision was in conflict with the decisions of the Court of Appeals for Franklin County in Columbus v. Ocker (1994), 97 Ohio App.3d 596, 647 N.E.2d 205, and the Court of Appeals for Portage County in State v. Given (Dec. 23, 1994), Portage App. No. 94-P-0012, unreported 1994 WL 738492, on the following question: "whether, for purposes of establishing a valid consent or refusal to take a blood [sic ] alcohol concentration test in the context of reviewing an administrative license suspension pursuant to R.C. 4511.191, the statutory notice provision contained in R.C. 4511.191(C) is satisfied by a showing that the officer read to the arrested person the language of R.C. 4511.191(C)(2)(b) as set forth on the top portion of BMV Form 2255."
This cause is now before the court upon determination that a conflict exists.
Arthur, O'Neil, Mertz & Bates Co., L.P.A., and E. Charles Bates, Defiance, for appellant.
Ronald J. O'Brien, Columbus City Attorney, David M. Buchman, City Prosecutor, and Brenda J. Keltner, Assistant City Prosecutor, urging affirmance for amicus curiae, City of Columbus.
The issue certified to this court is whether, for purposes of establishing a valid consent or refusal to take a breath-alcohol-concentration test in the context of reviewing an administrative license suspension pursuant to R.C. 4511.191, the statutory notice provision contained in R.C. 4511.191(C) is satisfied by a showing that the officer read to the arrestee the language of R.C. 4511.191(C)(2)(b) as set forth on the top portion of BMV Form 2255. We hold that it is. Therefore, we affirm the court of appeals and hold that for purposes of establishing a valid consent or refusal to take a breath-alcohol-concentration test in the context of an administrative license suspension pursuant to R.C. 4511.191, the notice requirement of R.C. 4511.191(C) is satisfied by reading to the arrestee the language of R.C. 4511.191(C)(2)(b) as set forth on the top portion of BMV Form 2255.
Under R.C. 4511.191(C)(1), any person arrested "for operating a vehicle while under the influence of alcohol" shall be advised, pursuant to R.C. 4511.191(E) and (F), of the consequences of his refusal to submit upon request to a chemical test and of the consequences of his submission to the test "if he is found to have a prohibited concentration of alcohol in the blood, breath, or urine."
R.C. 4511.191(C) states further:
The appellant urged both the lower courts and this court to conclude that the arresting officer must specify the exact period of a potential suspension that applies individually to each arrestee and not merely read to the arrestee the language of R.C. 4511.191(C)(2)(b) as set forth on the top portion of BMV Form 2255 before a valid consent or refusal to take the chemical test is established. Both courts rejected this contention. However, in Columbus v. Ocker (1994), 97 Ohio App.3d 596, 647 N.E.2d 205, the Franklin County Court of Appeals interpreted the phrase "by the officer" to modify the preceding phrase "as specified by law," thereby requiring the arresting officer to make an individualized determination of the prospective penalties pursuant...
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