City of Kettering v. Baker

• Decision Date: 28 May 1975
• Docket Number: No. 74-487,74-487
• Parties: , 71 O.O.2d 322 CITY OF KETTERING, Appellee, v. BAKER, Appellant.
• Court: Ohio Supreme Court

Page 351

42 Ohio St.2d 351

328 N.E.2d 805, 71 O.O.2d 322

CITY OF KETTERING, Appellee, v. BAKER, Appellant.

No. 74-487.

Supreme Court of Ohio.

May 28, 1975.

Syllabus by the Court

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. (Hoban v. Rice, 25 Ohio St.2d 111, and State v. Starnes, 21 Ohio St.2d 38, approved and followed.)

2. Where a municipality determines, as a matter of policy, that it will not provide or require any of the sobriety tests enumerated in R.C. 4511.191(A), such municipal policy does not deprive a person charged with driving while under the influence of alcohol of any fundamental constitutional right.

Roland Vernell Baker, appellant herein, was arrested in the city of Kettering on October 13, 1972, at 3:20 a. m., for driving a vehicle upon a public street while under the influence of an alcoholic beverage. Kettering Patrolman David W. H. Woolf testified that he had followed the appellant some considerable distance after first observing appellant's automobile traveling in such a manner as to straddle two lanes of eastbound traffic. The arresting officer turned on the red light on top of his cruiser and the two blinking red lights in the grill as well as a 'yelper' which changes tone second to second. Appellant did not stop but continued eastbound to the intersection of Marshall and Stroop Roads where he came to a sudden, jerky stop for a red light with the police cruiser, lights and 'yelper' fully activated, stopped behind him. When the light changed, appellant proceeded to turn right whereupon he noted the police cruiser in pursuit and pulled over to the right curb, with the patrolman stopping again a short distance behind him. After some fumbling, the appellant produced his driver's license, whereupon he was invited out of his vehicle-stumbling as he exited. The patrolman testified that there was an odor of an alcoholic beverage on appellant's breath and that his speech was slurred. At this point, Kettering Patrolman James G. Knickle arrived, and the appellant was requested to perform some manual dexterity tests consisting of the finger-to-nose and heel-to-toe exercises, neither of which he satisfactorily passed. The testimony revealed that appellant's eyes were bloodshot and his clothing somewhat disheveled. Thereupon he was transported to the Montgomery County Jail, where he was advised 'that he could, at his own expense, and on his own time, he could have the Breathalyzer test of a blood analysis taken.' Appellant did not request any test. The city of Kettering did not use or perform either of these procedures inasmuch as the Kettering Municipal Court had ruled that the Breathalyzer 'was not a valuable asset in determining the amount of alcoholic content in a person's blood.' At the close of the city's case, which consisted of the testimony of the two policemen, a motion to dismiss or direct a not guilty verdict was made and denied upon the alleged insufficiency of the evidence.

Counsel for appellant then renewed his previous written motion to dismiss 'for the reason that the failure of the police department to have available and provide for him (appellant) a place or provide a test (breathalyzer or blood) for him was a denial of his constitutional rights,' which motion was also denied.

Appellant, without presenting any evidence, rested. The case was given to the jury which returned a verdict finding Roland Vernell Baker guilty of driving while under the influence of alcohol. A motion for a new trial was denied. The Court of Appeals affirmed and this court allowed a motion to certify the record.

John F. Blake, Pros. Atty., for appellee.

White & Holden, Raymond A. White and John C. Holden, Dayton, for appellant.

CELEBREZZE, Justice.

It is the contention of the appellant herein that R.C. 4511.191(A) provides for a mandatory administration of one of the tests described therein to any person arrested for operating a motor vehicle upon the public highways in this state while under the influence of alcohol, and that the failure 'to give the prescribed tests' is a denial of the appellant's constitutional rights.

This section of the Revised Code is generally referred to as the implied-consent statute, and it begins with the language '(a)ny person who operates a motor vehicle upon the public highways' and proceeds to follow with certain provisions which that person impliedly subjects himself to, in the way of chemical tests of his blood, breath or urine for the determination of the alcoholic content thereof 'if arrested for the offense of driving while under the influence of alcohol.' The paragraph in question then...