City of Oregon v. Szakovits

• Decision Date: 15 December 1972
• Docket Number: 72-301,Nos. 72-158,s. 72-158
• Citation: 291 N.E.2d 742,61 O.O.2d 496,32 Ohio St.2d 271
• Parties: , 61 O.O.2d 496 CITY OF OREGON, Appellee, v. SZAKOVITS, Appellant. CITY OF MARYSVILLE, Appellee, v. MICHAELIS, Appellant.
• Court: Ohio Supreme Court

Page 271

32 Ohio St.2d 271

291 N.E.2d 742, 61 O.O.2d 496

CITY OF OREGON, Appellee, v. SZAKOVITS, Appellant.

CITY OF MARYSVILLE, Appellee, v. MICHAELIS, Appellant.

Nos. 72-158, 72-301.

Supreme Court of Ohio.

Dec. 15, 1972.

John D. Garand, Oregon, for appellee in case No. 72-158.

Loren G. Ishler, Toledo, for appellant in case No. 72-158.

Robert O. Hamilton, City Sol., for appellee in case No. 72-301.

John W. Dailey, Jr., Marysville, for appellant in case No. 72-301.

PER CURIAM.

The issue in each case is whether a warrantless arrest for operating a motor vehicle while under the influence of alcohol is illegal, if the operation of the vehicle is not actually viewed by the arresting officer.

R.C. § 2935.03 states that 'A . . . police officer shall arrest and detain a person found violating a law of this state, or an ordinance of a municipal corporation, until a warrant can be obtained.'

In each case, appellant claims that the officer, before arrest, should have either obtained a warrant or viewed the actual operation of the vehicle.

Appellees, in effect, maintain that under the facts in each of these cases, police officers may legally arrest without a warrant. We agree.

The third paragraph of the syllabus in Mentor v. Giordano (1967), 9 Ohio St.2d 140, 224 N.E.2d 343, states:

'Although a charge of operating a motor vehicle while under the influence of intoxicating liquor may apply where a stationary vehicle is involved, the evidence must show beyond a reasonable doubt that the accused was under the influence of intoxicating liquor while operating the vehicle in that condition.'

This court reversed the conviction in Mentor. There is, however, a clear distinction between the facts in these cases and Mentor. In that case, the vehicle was parked on a private lot behind a church, away from the traveled roadway. Three other people were present inside the vehicle when the officer arrived. A passenger testified that he had been the driver, and not the defendant. There was no indication how long the vehicle had been parked. At page 146, 224 N.E.2d at page 348 in Mentor, the following appears:

'Chronology is an important element in 'drunken driving' cases. A relationship must be established between the time there was evidence to show the influence of intoxicants and the time of operating a vehicle. . . .

'Generally, each 'drunken driving' case is to be decided on its own particular and peculiar facts. . . .'

The facts in each of the instant cases show that an accident occurred on a public street and that both appellants were injured. While at the scene, both voluntarily admitted to driving the vehicles. There was no question of appellants being visibly under the influence of alcohol.

After viewing the scene of the accident, and hearing appellants' admissions on a first-hand basis, the officers could reasonably conclude that each had been operating his vehicle shortly before the officers arrived. Coupled with the fact that appellants were obviously under the influence, the officers properly found each to have been violating an ordinance of the respective municipal corporations prohibiting driving while under the influence of alcohol.

In case No. 72-158, appellant maintains that the trial court should have granted his motion to suppress the evidence of his Breathalyzer test because (1) his arrest was illegal, and (2) no warrant was ever issued, citing Mapp v. Ohio (1961), 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, and Wong Sun v. United States (1963), 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441.

Although we have heretofore concluded that appellant's arrest was valid, attention is directed to R.C. § 4511.191 which reads, in part, as follows:

'Any person who operates a motor vehicle upon the public highways in this state shall be deemed to have given consent to a chemical test or tests of his blood, breath, or urine for the purpose of determining the alcoholic content of his blood if arrested for the offense of driving while under the influence of alcohol. The test of tests shall be administered at the direction of a police officer having reasonable grounds to believe the person to have been driving a motor vehicle upon the public highways in this state while under the influence of alalcohol . . ..' (Emphasis supplied.)

In Schmerber v. California (1966), 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908, defendant was arrested for drunken driving following an accident in which he had apparently been one of the drivers. At the hospital, where defendant was taken, police directed a physician to administer a chemical test to determine defendant's blood-alcohol content. Defendant objected to the test. The court held that there was no unreasonable search, stating, at page 771, 86 S.Ct. at page 1836: 'Given these special facts, we conclude that the attempt to secure evidence of blood-alcohol content in this case was an appropriate incident to petitioner's arrest.'

See, also, Piqua v. Hinger (1968), 15 Ohio St.2d 110, 238 N.E.2d 766, which held blood-alcohol tests to be real or physical evidence, not protected by the constitutional privilege against self-incrimination. Therefore, the Breathalyzer test was not subject to the exclusionary rule on such basis.

We affirm the conviction in each case.

Judgments affirmed.

C. WILLIAM O'NEILL, C. J., and SCHNEIDER, HERBERT, STERN, LEACH and BROWN, JJ., concur.

CORRIGAN, J., dissents.

LEACH, Justice (concurring).

In State v. Lewis (1893), 50 Ohio St. 179, 33 N.E. 405, it was held that:

'Where * * * the officer was absent when * * * (the) offense was committed, and did not appear there until after the affray had ended, public order restored, and the guilty parties had departed from the vicinity, and all the information the officer had of the affray and of the parties to it, was the statements of bystanders who witnessed it, he has no authority in law to pursue and arrest the persons charged with the offense without first obtaining a warrant therefor.'

The holding in Lewis was predicated upon the conclusion that the power to arrest without warrant for breach of peace or other minor offense is given in order to maintain the public peace; that it therefore ceases when the offense is an accomplished fact which can no longer be prevented.

In the instant cases, the presence of an intoxicated individual in, or in the vicinity of, an automobile which obviously had been driven by him clearly indicates that he was intoxicated while driving. Under such circumstances, I am of the opinion that the offense is not 'an accomplished fact,' which could no longer be prevented since such individuals could have easily resumed driving, in such intoxicated condition, unless proevented from doing so by the officer. Thus, I am of the opinion that, even as to the offense of driving while intoxicated, the defendants herein were 'found violating a law of this state, or an ordinance of a municipal corporation' within the purview of R.C. § 2935.03. Here, knowledge by the officer of the violation is acquired through his own senses. See 5 American Jurisprudence 2d, 721 et seq., section 31, Arrest (What amounts to committing offense in officer's presence).

In any event, I think it clear that the officers were empowered to arrest for intoxication and that the validity of the arrest is not dependent upon the understanding of the arresting officer as to his authority to arrest for driving while intoxicated, or even as to his intent with respect thereto. In this aspect of the case I am in full agreement with the following statement of Crawford, J., in State v. Hatfield (1965), 1 Ohio App.2d 346, at pages 347 and 348, 204 N.E.2d 574, at pages 575, 576:

'* * * It is argued that defendant was arrested for driving while intoxicated by an officer who did not actually see him committing that offense. It is no answer to this contention to say that the circumstances pointed overwhelmingly to guilt.

'However, the answer does lie in the fact that the defendant was 'found violating a law of this state' as required in Section 2935.03, Revised Code, for he was 'found in a state of intoxication,' a misdemeanor under Section 3773.22, Revised Code. Therefore, it was lawful for the patrolman to arrest him. It mattered not what charge was thereafter filed or whether any charge was filed, if the original arrest was lawful. City of Columbus v. Glenn (1950), 60 Ohio Law Abst. 449, 102 N.E.2d 279; State v. Williams (1954), 98 Ohio App. 513, 130 N.E.2d 395.

'In each of these cases cited there is a syllabus indicating that a police officer may arrest without a warrant a person found in a state of intoxication who admits driving a motor vehicle which has been involved in a collision. However, the admission by the accused that he was operating a motor vehicle is not necessary to authorize the arrest. As stated by Judge Miller in the opinion in Columbus v. Glenn, supra, 'The fact that he was found in a state of intoxication was sufficient to warrant the officer to make the arrest. Whether or not any charges were ever filed would not go to the arrest ab initio. It is our conclusion that the arrest in this instance was not illegal.'

'If one is found by a police officer committing a misdemeanor, he may be lawfully arrested, charged with that or any other misdemeanor, or charged with no offense whatsoever, without the arrest being thereby rendered illegal. Many an offender has been lawfully apprehended for a minor triaffic violation and found upon examination to be guilty of another offense or offenses, either felonies or misdemeanors, and either related or unrelated to the misdemeanor witnessed by the officer adn justifying the original arrest. If other misdemeanors are thus discovered, the offender enjoys no immunity from prosecution for them because they were not committed in the presence of the arresting officer. If the initial arrest was lawful he has suffered no deprivation of his rights.'

C. WILLIAM O'NEILL, C....