City of Cincinnati v. Kelley, 75-919

• Citation: 47 Ohio St.2d 94,351 N.E.2d 85
• Decision Date: 14 July 1976
• Docket Number: No. 75-919,75-919
• Parties: , 1 O.O.3d 56 CITY OF CINCINNATI, Appellant, v. KELLEY, Appellee.
• Court: United States State Supreme Court of Ohio

Page 94

47 Ohio St.2d 94

351 N.E.2d 85, 1 O.O.3d 56

CITY OF CINCINNATI, Appellant, v. KELLEY, Appellee.

No. 75-919.

Supreme Court of Ohio.

July 14, 1976.

Syllabus by the Court

To be in actual physical control of an automobile, under the provisions of Section 506-1 of the Cincinnati Municipal Code, a person must be in the driver's seat of the vehicle, behind the steering wheel, in possession of the ignition key, and be in such condition that he is physically capable of starting the engine and causing the vehicle to move.

On the afternoon of June 15, 1974, patrolman Eugene Depue received a radio message that there was an intoxicated person in an automobile on Walnut Street in the city of Cincinnati, appellant herein. After locating the vehicle and asking the occupant, appellee Edward Kelley, to step out, Officer Depue observed that Mr. Kelley was in an intoxicated condition. Kelley was then arrested and charged with being in actual physical control of a vehicle while under the influence of alcohol, in violation of Section 506-1 of the Cincinnati Municipal Code.

Appellee entered a plea of not guilty and waived his right to a jury trial. At the trial, Officer Depue testified that when he arrived on the scene, the automobile was legally parked; that appellee was seated in the driver's seat with his hands on the steering wheel and the keys in the ignition; and that the engine was not running.

According to appellee, he had driven downtown early in the morning, while completely sober, and lawfully parked on Walnut Street. After drinking at a bar, he realized he was in no condition to drive and, sometime between 12:00 P.M. and 1:00 P.M., went back to his car and lay down on the front seat. He stated he did not leave the car until about 3:00 P.M., at which time he called his wife and requested her to come and get him. Kelley testified further that when he returned to the car he again lay down upon the front seat and that he was arrested shortly thereafter. Additionally, it was uncontroverted that the driver's seat belt, which had to have been in use in order for the engine to be started, was not fastened.

At trial, appellee was found guilty as changed. The Court of Appeals reversed the conviction, finding that the 'actual physical control' aspect of the ordinance must relate to operation of a vehicle and, in the case before it, the factor of operation was absent.

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

Paul J. Gorman, Pros. Atty., and J. Anthony Sawyer, Cincinnati, for appellant.

John Andrew West and Timothy R. Cutcher, Cincinnati, for appellee.

HERBERT, Justice.

The rulings of the courts below resolved, for our purposes here, all questions concerning credibility of witnesses and weight of evidence.

This appeal concerns the validity and construction of part of Section 506-1 of the Cincinnati Municipal Code, which states:

'No person who is under the influence of alcohol or a drug of abuse as defined in Section 3719.011 Ohio Revised Code shall operate or be in actual physical control of any vehicle within this city.' (Emphasis added.)

Appellant and appellee submit that the ordinance provides for two separate offenses, in that it prohibitions one from operating or being in 'actual physical control' of a vehicle while under the influence of alcohol or drugs of abuse. Decisions of courts of this state and other jurisdictions construing similar statutes support that interpretation. See e. g., State v. Wilgus (1945), 31 Ohio Ops. 443; State v. Ezoto (1961), 116 Ohio App. 1, 186 N.E.2d 206; State v. Purcell (Del.Super.1975), 336 A.2d 223; Newman v. Stinson (Ky.1972), 489 S.W.2d 826; State v. Webb (1954), 78 Ariz. 8, 274 P.2d 338; and Parker v. State (Okl.Cr.App.1967), 424 P.2d 997.

Appellee contends that insofar as the ordinance, a local police regulation, proscribes being in actual physical control of a vehicle while under the influence of alcohol or certain drugs, it conflicts with R.C. 4511.19 and is unconstitutional. ¹

R.C. 4511.19 states:

'No person who is under the influence of alcohol or any drug of abuse, or the combined influence of alcohol and any drug of abuse, shall operate any vehicle, streetcar, or trackless trolley within this state.'

This question was also raised in Sidney v. Thompson (1962), 118 Ohio App. 512, 196 N.E.2d 112, in which the defendant attacked the constitutionality of a city ordinance containing language almost identical to the ordinance now before us. In rejecting the assertion that a conflict existed, the court stated in paragraph one of its syllabus:

'A municipal ordinance making it an offense to 'operate or be in actual physical control' of a vehicle while under the influence of intoxicating liquor, narcotic drugs or opiates, is not in conflict with Section 4511.19, Revised Code, which excludes physical control as a possible statutory offense.'

See, also, Toledo v. Best (1961), 172 Ohio St. 371, 176 N.E.2d 520, where this court recognized the retention in the city ordinance of physical control as a possible statutory offense and its deletion from R.C. 4511.19, ² yet upheld the constitutionality of the ordinance.

In view of the above, and the criterion upon which such questions of conflict are determined, ³ no conflict exists between the instant ordinance and R.C. 4511.19.

Appellant contends that under the circumstances of this case, appellee was in 'actual physical control' of his vehicle, within the meaning of the ordinance.

This court has often stated that a municipality may enact ordinances to promote the health, safety and general welfare of the public if the means adopted bear a real and substantial relationship to their purpose. Froelich v. Cleveland (1919), 99 Ohio St. 376, 124 N.E. 212; Dragelevich v. Youngstown (1964), 176 Ohio St. 23, 197 N.E.2d 334. The clear purpose of the control aspect of the instant ordinance is to...