Andrews v. Turner

• Decision Date: 02 November 1977
• Docket Number: No. 76-1350,76-1350
• Citation: 368 N.E.2d 1253,6 O.O.3d 149,52 Ohio St.2d 31
• Parties: , 6 O.O.3d 149 ANDREWS, Registrar, Bureau of Motor Vehicles, Appellant, v. TURNER, Appellee.
• Court: Ohio Supreme Court

Page 31

52 Ohio St.2d 31

368 N.E.2d 1253, 6 O.O.3d 149

ANDREWS, Registrar, Bureau of Motor Vehicles, Appellant, v. TURNER, Appellee.

No. 76-1350.

Supreme Court of Ohio.

Nov. 2, 1977.

Syllabus by the Court

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, 267 N.E.2d 311, 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.

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. ¹ 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.

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). ² 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.

John S. Cheetwood, Pros. Atty., and Chester H. Marcin and John M. Dunipace, Bowling Green, for appellant.

Kline, Corogin & Cottrell and Thomas L. Corogin, Port Clinton, for appellee.

CELEBREZZE, Justice.

R.C. 4511.191, the implied-consent statute, is "a legislative response to the mischief of drunk drivers." State v. Hurbean (1970), 23 Ohio App.2d 119, 131, 261 N.E.2d 290, 300. The general purpose of the statute ³ 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, 261 N.E.2d at 310.

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, 254 N.E.2d 675.

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, 261 N.E.2d at 297. 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, 267 N.E.2d 311, 315.

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 ⁴ 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.

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 (Okl.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 Wash.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, 267 N.E.2d at 314-15). 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. ⁵ Thus, appellee has failed to show error in the action taken by appellant, and the judgment of the Court of Appeals must be reversed.

Judgment reversed.

C. WILLIAM O'NEILL, C. J., and HERBERT and SWEENEY, JJ., concur.

PAUL W. BROWN, J., concurs in the judgment.

WILLIAM B. BROWN and LOCHER, JJ., dissent.

WILLIAM B. BROWN, Justice, dissenting.

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, 267 N.E.2d 311 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, 267 N.E.2d at page 312, defines refusal in the following manner:

"For the purpose of R.C. 4511.191, a refusal to submit to...