Brooks, In re, 70-461

• Decision Date: 30 June 1971
• Docket Number: No. 70-461,70-461
• Citation: 27 Ohio St.2d 66,271 N.E.2d 810
• Parties: , 56 O.O.2d 37 In re BROOKS.
• Court: Ohio Supreme Court

Page 66

27 Ohio St.2d 66

271 N.E.2d 810, 56 O.O.2d 37

In re BROOKS.

No. 70-461.

Supreme Court of Ohio.

June 30, 1971.

Syllabus by the Court

1. The time limitation in R.C. 4511.19, restricting the admission in evidence of the results of chemical tests of bodily substances for concentration of alcohol to those tests made of bodily substances withdrawn within two hours of the time of operating a vehicle while under the influence of alcohol, is only a restriction on the admission in evidence of the results of such tests, and does not have the effect of extending the time within which an arrested person may choose to submit or refuse to submit to a chemical test under the provisions of R.C. 4511.191(D).

2. The suspension, pursuant to R.C. 4511.191, of the driver's license of a motorist, under arrest for the offense of driving a motor vehicle while under the influence of alcohol, for refusing, upon request of a police officer, to submit to a chemical test for alcohol, is not precluded by the fact that after such refusal, but within two hours of the alleged driving violation, the motorist stated that he would submit to the test.

Ronald Lee Brooks, appellant herein, was arrested in Athens, Ohio, by a city policeman on July 7, 1968, on the charge of operating a motor vehicle while intoxicated. He was taken to the police station where the arresting officer requested him to submit to a chemical test, which request was refused. His driver's license was suspended by the Registrar of Motor Vehicles for six months, as provided for in R.C. 4511.191(D).

Brooks then filed a petition in the Athens County Municipal Court, which, after hearing, 'dismissed the petition.' According to the 'stipulation of fact,' no bill of exceptions having been filed, Brooks 'testified ^* that within half an hour after he originally refused to take the Breathilizer test, which was then approximately one hour after his arrest, he indicated that he had changed his mind about his original refusal to take the Breathilizer test and that he would submit to a Breathilizer test but that Officer Beasley told him it was too late to take the test and that he had already refused.'

An appeal was taken to the Court of Appeals, which apparently considered the 'dismissal' as being equivalent to a finding of no error in the imposition of the suspension order, as provided for in R.C. 4511.191(C), and upon this basis, affirmed.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Lavelle & Yanity, and William A. Lavellee, Athens, for appellant, Ronald Lee Brooks.

Claire M. Ball, Jr., Pros. Atty., for appellee, Registrar of Motor Vehicles.

LEACH, Justice.

Once again, this court is presented with the question of interpreting the impliedconsent statute, R.C. 4511.191. Our previous decisions with respect thereto are State v. Starnes (1970), 21 Ohio St.2d 38, 254 N.E.2d 675; Hoban v. Rice (1971), 25 Ohio St.2d 111, 267 N.E.2d 311; and Buhren v. Rice (1971), 26 Ohio St.2d 140, 269 N.E.2d 598. See, also, Westerville v. Cunningham (1968), 15 Ohio St.2d 121, 239 N.E.2d 40.

In his brief (filed before our decision in Hoban), it is asserted, in effect, by appellant that the only purpose of R.C. 4511.191 is to aid in securing a conviction for a violation of R.C. 4511.19; that since R.C. 4511.19 provides for the admission in evidence of a chemical analysis of a defendant's blood, urine, breath or other bodily substance withdrawn within two hours of the time of such alleged violation, the purpose of the law has been met if a defendant makes such bodily substances available to the police within such time as the test thereof may be used as evidence; and thus that under R.C. 4511.191 the license of a person arrested for driving a motor vehicle while intoxicated cannot be suspended because he had previously refused 'upon the request of a police officer' to submit to a chemical test, if consent to withdraw bodily substances is given within two hours.

In making this assertion, appellant relies principally upon the rationale of Groff v. Rice (1969), 20 Ohio App.2d 309, 253 N.E.2d 318. That rationale, however, was rejected by this court in Hoban v. Rice, supra, 25 Ohio St.2d 111, 267 N.E.2d 311. Hoban had been certified to this court as being in conflict with the judgment in Groff.

The first three paragraphs of the syllabus in Hoban read:

'1. R.C. 4511.191, the implied-consent statute, is constitutional and the proceedings thereunder are civil and administrative in nature and are independent of any criminal proceedings which may be instituted pursuant to other statutes or ordinances. The validity of a driver's license suspension by the Registrar of Motor Vehicles, under R.C. 4511.191, is unaffected by such person's plea of guilty to a charge of operating a motor vehicle under the influence of alcohol. (State v. Starnes, 21 Ohio St.2d 38, 254 N.E.2d 675, approved and followed.)

'2. The suspension of a driver's license under R.C. 4511.191(D) by the Registrar of Motor Vehicles, will be upheld upon appeal if the court finds that (1) the arresting officer had reasonable ground to believe the person had been driving a motor vehicle upon the public highways of this state while under the influence of alcohol, (2) the person was placed under arrest, (3) the person refused to submit to a chemical...