Barber v. Curry
| Decision Date | 09 April 1974 |
| Citation | 40 Ohio App.2d 346,319 N.E.2d 367,69 O.O.2d 312 |
| Parties | , 69 O.O.2d 312 BARBER, Appellant, v. CURRY, Registrar, Bureau of Motor Vehicles, Appellee. * |
| Court | Ohio Court of Appeals |
Syllabus by the Court
R.C. 4511.19 does not preclude the admission of evidence, otherwise properly qualified, of chemical tests administered subsequent to the two-hour time period set forth therein, but merely precludes evidence of a test not given within such time period from giving rise to the presumptions set forth in such statute.
Gingher & Christensen and Bradley Hummel, Columbus, of counsel, for appellant.
George C. Smith, Pros. Atty., Miles C. Durfey, William B. Shimp, Columbus, and John T. Morrison, legal intern, for appellee.
This is an appeal by plaintiff from a judgment of the Franklin County Municipal Court, which found adversely to plaintiff and imposed the statutory suspension of driving rights pursuant to R.C. 4511.191, for a failure of plaintiff to submit to a chemical test.
Plaintiff raises two assignments of error as follows:
There is no question that plaintiff failed to take a chemical test, although requested. However, it is apparently conceded by all parties, and the trial court expressly found, that no chemical test was offered by the police officer involved until more than two hours (but less than three hours) after the time of the alleged violation of operating a motor vehicle while under the influence of alcohol. It also appears that plaintiff refused to submit to a chemical test because more than two hours had elapsed.
The implied consent law is set forth in R.C. 4511.191(A) as follows:
'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. * * *' (Emphasis added.)
Thus, it is quite clear that the implied consent provision applies only when a person has been arrested for the offense of driving while under the influence of alcohol. Obviously, the purpose of the test must bear a reasonable relationship to the arrest for the offense of driving while under the influence of alcohol in order to constitute a test within the contemplation of this section. A person may withdraw his consent pursuant to R.C. 4511.191(D), which provides in pertinent part:
'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 (C) of this section, no chemical test shall be given * * *.'
However, in the event of such refusal, the refusing person's driving rights are suspended for a period of six months.
R.C. 4511.191 and 4511.19 are in pari materia. The interrelationship between the two sections is readily apparent from reading either or both. Furthermore, and most controlling, except for the first paragraph of R.C. 4511.19, the two sections are a part of a single act of the legislature-namely, Amended Substitute House Bill No. 380, enacted by the 107th General Assembly. That act was enacted for a single stated purpose: 'to improve the state highway safety program.' 132 Ohio Laws 2611. It is true that both this court, in Hoban v. Rice (1970), 22 Ohio App.2d 130, 259 N.E.2d 136, and the Supreme Court in Hoban v. Rice (1971), 25 Ohio St.2d 111, 267 N.E.2d 311, held that the proceedings under R.C. 4511.191, being civil, are separate and independent of the proceedings, being criminal, under R.C. 4511.19. However, in that case, neither this court, nor the Supreme Court considered, or had before it, the issue of whether the two sections should be read in pari materia. Since they are part of the same legislative act enacted for the same stated purpose, proper construction requires that they be read together in order to ascertain legislative intent.
The basic issue involved in Hoban was whether a person was exempted from the suspension imposed by R.C. 4511.191 for a refusal to submit to a chemical test because he subsequently pleads guilty to the offense of operating a motor vehicle while under the influence of alcohol. The court merely held that such admission of guilt did not avoid the consequences of a refusal to submit to a test, following State v. Starnes (1970), 21 Ohio St.2d 38, 254 N.E.2d 675, in which it had been indicated that R.C. 4511.191 is 'intended for the protection of the traveling public.' However, R.C. 4511.19 is similarly intended for the protection of the travelling public. Mentor v. Giordano (1967), 9 Ohio St.2d 140, 224 N.E.2d 343. This purpose might be elaborated upon in that it would appear, by the enactment of R.C. 4511.191, the General Assembly intended to protect the travelling public by (1) discouraging persons from driving an automobile while under the influence of alcohol, (2) removing driving rights from persons so disposed to drunk driving that they refused to submit to a chemical test when arrested for that offense, and (3) providing a means of obtaining reliable evidence of whether a person is under the influence of alcohol. In fact, it would appear that the reasonableness and validity of implied consent would necessarily be related to the third abovestated purpose.
Although no time limitation for a chemical test is specified in R.C. 4511.191, it is fundamental that such test must be offered and refused within a reasonable time after the offense of driving while under the influence of alcohol. It would also seem fundamental that the reasonable time period is that period of time within which the chemical test will provide reliable evidence of whether the person so arrested was under the influence of alcohol at the time of his arrest for driving while under the influence of alcohol. No one would contend that a refusal to take a chemical test several days, or longer, after the time of the alleged offense, would constitute a refusal to take a test within the contemplation of R.C. 4511.191. Thus, the issue before us is as follows: when does the reasonable time within which a chemical test must be offered and refused expire before the consequences of R.C. 4511.191 can be imposed?
If, as contended by plaintiff, R.C. 4511.19 provides that a chemical test administered more than two hours after the alleged commission of the offense of driving while under the influence of alcohol would constitute neither competent, nor admissible evidence upon the issue of whether the person charged was under the influence of alcohol at the time alleged, the legislature would have answered this question for us. In other words, if, at the time the chemical test is first offered and refused, the results thereof would be neither competent, nor admissible evidence upon the issue of whether the person tested was under the influence of alcohol at the time of the alleged commission of the offense of driving while under the influence of alcohol, such refusal would not constitute a refusal bearing the consequences of suspension of driving rights imposed by R.C. 4511.191.
At first reading, State v. Sickles (1970), 25 Ohio App.2d 1, 265 N.E.2d 787; State v. Miracle (1973), 33 Ohio...
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...who insist on driving after drinking. See Mentor v. Giordano (1967), 9 Ohio St.2d 140, 145, 224 N.E.2d 343 ; Barber v. Curry (1974), 40 Ohio App.2d 346, 348, 319 N.E.2d 367 ; State v. Ulrich (1984), 17 Ohio App.3d 182, 478 N.E.2d 812; State v. Kivell (1983), 11 Ohio App.3d 12, 463 N.E.2d Th......
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