City of Columbus v. Heidi L. Ocker, 94-LW-5298

• Decision Date: 29 September 1994
• Docket Number: 94APC03-332,94-LW-5298
• Parties: City of Columbus, Plaintiff-Appellee v. Heidi L. Ocker, Defendant-Appellant
• Court: Ohio Court of Appeals

City of Columbus, Plaintiff-Appellee v. Heidi L. Ocker, Defendant-Appellant

No. 94APC03-332.

94-LW-5298 (10th)

Court of Appeals of Ohio, Tenth District Franklin.

September 29, 1994

APPEAL from the Franklin County Municipal Court.

Ronald J. O'Brien, City Attorney, David M. Buchman, City Prosecutor, and Brenda J. Keltner, for appellee.

Daniel D. Connor Co., L.P.A., Daniel D. Connor and Dennis P. Evans for appellant.

OPINION

WHITESIDE P.J.

This is an appeal by defendant, Heidi L. Ocker, from an order of the Franklin County Municipal Court finding an administrative suspension of defendant's driver's license to be properly imposed because no error had been committed by either the arresting officer or the Ohio Bureau of Motor Vehicles with respect to its imposition of such administrative suspension. Although the brief of defendant is defective in that it does not set forth specifically an assignment of error as required by the appellate rules, the issue involved is set forth at page 5 of defendant's brief as follows:

"The sole issue in this case is whether the Ohio Bureau of Motor Vehicles can suspend the driver's license of a person who fails a chemical test when the arresting officer does not inform the Defendant of the length of the suspension that will be imposed pursuant to the requirements of Ohio Revised Code, Section 4511.191(C)(1)(a) and (b)."

Accordingly the contended error is in the interpretation of R.C 4511.191(C) (2) (a) to the effect that the trial court erred in finding that section does not require an arresting officer to designate the length of the potential suspension under R.C. 4511.191(E) or (F).

R.C. 4511.191(C)(2)(a) provides, as follows:

"The advice given pursuant to division (C)(1) of this section shall be in a written form containing the information described in division (C)(2)(b) of this section and shall be read to the person. The form shall contain a statement that the form was shown to the person under arrest and read to him in the presence of the arresting officer and either another police officer, a civilian police employee, or an employee of a hospital, first-aid station, or clinic, if any, to which the person has been taken for first-aid or medical treatment. The witnesses shall certify to this fact by signing the form."

Such provision expressly requires that the information given include that described in R.C. 4511.191(C)(1)(a) and (b), which provides information that must be given to a person under arrest for operating a vehicle while under the influence of alcohol or with a prohibited concentration of alcohol in the blood, breath, or urine, as follows:

"(a) The consequences, as specified in division (E) of this section, of his refusal to submit upon request to a chemical test designated by the law enforcement agency as provided in division (A) of this section.

"(b) The consequences, as specified in division (f) of this section, of his submission to the designated chemical test if he is found to have a prohibited concentration of alcohol in the blood, breath, or urine."

R.C. 4511.191(F) provides that, if the chemical test is taken, and the alcohol content of blood is ten-hundredths of one percent or more, the concentration of alcohol in the breath is ten-hundredths of one gram per 210 liters of breath, or the alcohol concentration in urine is fourteen-hundredths of one gram or more per one-hundred millileters of urine, an administrative suspension shall be imposed for ninety days if there has been no prior conviction within five years, with the suspension being increased to one year if there be one conviction within five years, two years if there have been two convictions within five years, and three years if there be more than two convictions within the previous five years. However, R.C. 4511.191(C) (2) (b) sets forth the prescribed language for the advice form and states in part:

"If you refuse to submit to the requested test or if you submit to the requested test and are found to have a prohibited concentration of alcohol in your blood, breath, or urine, your drivers or commercial driver's license or permit or nonresident operating privilege immediately will be suspended for the period of time specified by law by the officer, on behalf of the registrar of motor vehicles. ***"

Thus, there is an apparent inconsistency between paragraphs (C)(1) and (C)(2) of R.C. 4511.191. Paragraph (C)(2)(b) provides that the form shall state that the license will be suspended "for the period of time specified by law by the officer," while paragraph (C)(1)(a) and (b) requires that advice given include: "the consequences, as specified in division (F) of this section," of both a refusal to take the test and "his submission to the designated chemical test if he is found to have a prohibited concentration of alcohol in the blood, breath, or urine."

This apparent inconsistency is reconciled by the precise language of the form specified in R.C. 4511.191(C)(2)(b), which requires the officer to specify the period of time of the suspension by the words, "suspended for the period of time specified by law by the officer, on behalf of the registrar of motor vehicles." (Emphasis added.) In other words, on behalf of the registrar of motor vehicles, the officer must specify the period of time of the suspension that will be imposed if a test is taken and reveals a prohibited concentration of alcohol, as well as the period of time of suspension if the test be refused.

The city argues that the section should not be applied upon its plain meaning but, instead, that the phrase, "by the officer" should be construed as a misplaced modifier and that this court should...