Bowling Green v. Boggs, 95-TR-C-02525

• Decision Date: 24 October 1995
• Docket Number: No. 95-TR-C-02525,95-TR-C-02525
• Citation: 74 Ohio Misc.2d 133,660 N.E.2d 538
• Parties: City of BOWLING GREEN, v. BOGGS. *
• Court: Ohio Court of Common Pleas

Page 133

74 Ohio Misc.2d 133

660 N.E.2d 538

City of BOWLING GREEN, v. BOGGS. ^*

No. 95-TR-C-02525.

Bowling Green Municipal Court, Ohio.

Decided Oct. 24, 1995.

Syllabus by the Court

1. The holding in State v. Knisely (Aug. 18, 1995), Huron App. No. H-94-044, unreported, 1995 WL 490937 (that an administrative license suspension "on the spot" by a law enforcement officer violates the Due Process Clause) does not by its terms apply retroactively.

2. State v. Knisely has no application to the present case or to other cases that were heard, decided, and concluded before the Knisely decision was rendered.

3. When a defendant never raises a due process argument, never appeals, and the time for appeal has long passed, the defendant is barred from raising the issue, and the doctrine of res judicata applies to the completed case.

Mark D. Tolles, City Prosecutor, Bowling Green, for plaintiff.

Halleck & Halleck and Peter T. Halleck, Bowling Green, for defendant Duane C. Boggs.

THOMAS J. McDERMOTT, Magistrate.

This matter comes on for defendant Duane C. Boggs's motion to terminate ALS (administrative license suspension) on the basis that the suspension is unconstitutional because of the decision in State v. Knisely (Aug. 18, 1995), Huron App. No. H-94-044, unreported, 1995 WL 490937, certified conflict accepted in (1995), 74 Ohio St.3d 1407, 655 N.E.2d 186.

For the reasons stated below, the motion will be overruled.

Facts

Defendant was arrested on April 14, 1995, and charged with DUI under Bowling Green Ordinance ("BGO") 73.01(A)(1). He was also charged with a lane violation, BGO 72.10, and failure to yield the right of way at an intersection, BGO 72.25.

At the time of his arrest, after being informed of the consequences, defendant refused to submit to a chemical test to determine the alcohol content in either his blood, breath, or urine. Pursuant to R.C. 4511.191(D)(1)(a), the arresting officer notified defendant that his license was suspended because of his refusal. Pursuant to R.C. 4511.191(E)(1)(a), defendant's right to drive was suspended by the Bureau of Motor Vehicles for one year.

While this case was pending before the court, defendant was granted occupational driving privileges after an initial thirty-day period had expired. On August 7, 1995, the DUI charge was dismissed, and defendant entered pleas of no contest to the other two charges. The court extended defendant's occupational driving privileges through April 13, 1996, for the duration of his one-year refusal suspension.

On August 18, 1995, the Sixth District Court of Appeals ruled, in State v. Knisely, Huron App. No. H-94-044, unreported, 1995 WL 490937, that "to the extent that it mandates an instant license suspension," R.C. 4511.191(D)(1) is a nullity, as violative of the Fifth and Fourteenth Amendments to the United States Constitution and Section 16, Article I of the Ohio Constitution. Conclusions of Law

1. Knisely Does Not Apply Retroactively

Defendant would have this court, if it were to grant his motion, terminate, by a retroactive application of Knisely, administrative license suspensions imposed in all cases prior to August 18, 1995, including the ALS in this case.

State courts have broad authority to determine whether their decisions shall operate prospectively or retrospectively. Great N. Ry. Co. v. Sunburst Oil & Refining Co. (1932), 287 U.S. 358, 53 S.Ct. 145, 77 L.Ed. 360; Copperweld Steel Co. v. Lindley (1987), 31 Ohio St.3d 207, 210, 31 OBR 404, 406, 509 N.E.2d 1242, 1245-1246. Justice Cardozo, in Great Northern, noted that the highest court of a state may make a choice for itself whether the new rule declared by it shall operate prospectively only, or also to past transactions.

The test used to make this determination is found in Chevron Oil Co. v. Huson (1971), 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296. Contrary to Justice Cardozo's "highest court of a state" language, appellate courts have also utilized these tests to retroactively apply their decisions. Anello v. Hufziger (1988), 48 Ohio App.3d 28, 547 N.E.2d 1220, poses this test in three questions, which must all be answered negatively to apply a decision retroactively:

1. Is the decision one of first impression that was not clearly foreshadowed?

2. Will retrospective application retard the operation of the statute, considering its prior history, purpose, and effect?

3. Will the retrospective application produce substantial inequitable results ("injustice or hardship")?

The answer to the first question is clearly affirmative. The Sixth District Court of Appeals is the first court in the state, at either the trial or appellate level, to have ruled that the roadside, "on-the-spot" suspension of a suspected DUI driver was constitutionally infirm as violative of that driver's due process rights.

The answer to the second question is clearly in the affirmative. Certain drunk drivers (those with positive tests or who have refused a test) have legislatively been determined to be a threat to public safety if permitted to drive during the pretrial phase of their DUI cases.

Similarly, the third question must also be answered affirmatively. Retroactive application of this ruling, especially in light of the fact that the Ohio Supreme Court has not made a final determination on the matter, would result in chaos. The Bureau of Motor Vehicles would have to determine which suspensions it had imposed under the law were on those drivers suspended by actions in the Sixth Appellate District. Also, reinstatement fees that have been paid have already been disbursed, per R.C. 4511.191(L), to such purposes as the Drivers' Treatment and Intervention Fund, a reparations fund, the Indigent Drivers Alcohol Treatment Fund, etc. In addition, how would those who have already served an ALS be made whole?

The United States Supreme Court has held that the actual existence of a statute which had been declared unconstitutional is an operative fact which cannot justly be ignored, and the question of the effect of its unconstitutionality cannot be disposed of by merely applying a principle of absolute retroactive invalidity. Chicot Cty. Drainage Dist. v. Baxter State Bank (1940), 308 U.S. 371, 60 S.Ct. 317, 84 L.Ed. 329.

Federal courts were divided on the retroactive application of the holding in Mapp v. Ohio (1961), 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, until the matter of prospective application only was conclusively settled in Linkletter v. Walker (1965), 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601.

The matter of retroactive application of a finding of unconstitutionality can no longer be an automatic decision. The California Supreme Court so recognized when it stated:

"We no longer subscribe to that 'splendid myth' of Blackstone that all constitutional interpretations are eternal verities that stretch backwards and forwards to infinity." In re Lopez (1965), 62 Cal.2d 368, 42 Cal.Rptr. 188, 398 P.2d 380, certiorari denied (1966), 384 U.S. 1016, 86 S.Ct. 1929, 16 L.Ed.2d 1038, rehearing denied (1966), 385 U.S. 891, 87 S.Ct. 16, 17 L.Ed.2d 123. See, also, Ostwald v. State (Wyo.1975), 538 P.2d 1298, for a thorough analysis of the retroactivity question.

A similar issue to the one now under consideration was addressed when the United States Supreme Court revisited its Chicot decision in 1977. In Dobbert v. Florida (1977), 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344, the defendant was sentenced to death for murder. The Supreme Court of Florida, in another case, subsequently found the death penalty statute unconstitutional in light of Furman v. Georgia (1972), 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346. Dobbert claimed that since the law in effect at the time of his actions was later found to be unconstitutional, there was no "valid" death penalty in effect in Florida as of the date of his actions. The Supreme Court did not buy this argument, and held:

"Whether or not the old statute would, in the future, withstand constitutional attack, it clearly indicated Florida's view of the severity of murder and of the degree of punishment which the legislature wished to impose upon murderers. The statute was intended to provide maximum deterrence, and its existence on the statute books provided fair warning as to the degree of culpability which the State ascribed to the act of murder." 432 U.S. at 297, 97 S.Ct. at 2300, 53 L.Ed.2d at 358-359.

The state of Ohio certainly considers drunk driving to be an important issue to its citizens, and the most recent revisions in the DUI law reflect the legislature's concern. In the instant case, defendant Boggs received even more warning about the consequences of his refusal than simply that the law was on the books: he was informed of those consequences by the officer at the scene and acknowledged his receipt of that information in writing.

Knisely did not find any fault with the legislative intent to address the very important social problem of dealing with drunk drivers, nor did it address the ALS...