City of Toledo v. Dietz, 38753

Citation3 Ohio St.2d 30,209 N.E.2d 127,32 O.O.2d 16
Decision Date30 June 1965
Docket NumberNo. 38753,38753
Parties, 32 O.O.2d 16 CITY OF TOLEDO, Appellee, v. DIETZ, Appellant.
CourtUnited States State Supreme Court of Ohio

Syllabus by the Court

1. Where a person charged with the offense of operating a motor vehicle while under the influence of intoxicating liquor, contrary to the provisions of a municipal ordinance, voluntarily submits to a 'Harger drunkometer test,' during a 15-minute investigation at police headquarters, in the absence of any coercion and after being informed that the test is voluntary and that he is not required to answer any questions, there exists no deprivation of rights under the Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States or Section 10, Article I of the Constitution of Ohio.

2. Where law enforcement officers communicate with the brother of a person charged with the offense of operating a motor vehicle while under the influence of intoxicating liquor, there exists sufficient compliance with the provisions of Section 2935.14, Revised Code, which provides that accused must be furnished facilities to communicate with an attorney or other person for the purpose of obtaining an attorney.

On or about November 8, 1961, John J. Dietz, appellant, was arrested by the police of the city of Toledo, appellee. He was charged with the offense of operating a motor vehicle within the city limits of Toledo while under the influence of intoxicating liquor, contrary to the ordinance.

The cause was set for trial in the Toledo Municipal Court at 9:00 a. m., January 23, 1962. At 9:15 a. m. on the same day, the appellant presented in open court a motion to suppress the evidence arising from a Harger drunkometer test given to the appellant by the police officers at the time that he was booked at police headquarters.

In addition to his motion to suppress, appellant claimed further that his rights under the Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States, Section 10, Article I of the Constitution of the state of Ohio, and Section 2935.14 of the Revised Code were violated.

The court took the matter of the disposition of the motion under advisement and later overruled the motion.

After the conclusion of the taking of testimony and argument of counsel, the cause was submitted to the jury under instructions by the trial court. The jury returned a verdict of guilty, and upon this finding. judgment was entered and sentence imposed.

Upon appeal to the Court of Common Pleas, the judgment of the trial court was affirmed.

The Court of Appeals for Lucas County affirmed the judgment of the Common Pleas Court.

The cause is now before this court for final disposition on an appeal as of right and upon allowance of appellant's motion to certify the record.

Louis R. Young, Director of Law, and John A. DeVictor, Jr., Toledo, for appellee.

Green & Green and Merritt W. Green, II, Toledo, for appellant.

HERBERT, Judge.

Appellant claims that he was compelled to be a witness against himself; that he was denied 'due process' and assistance of counsel, contrary to the Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States; and that he was denied the protection of Section 2935.14 of the Revised Code, which provides in part:

'If the person arrested is unable to offer sufficient bail * * * he shall * * * be speedily permitted facilities to communicate with an attorney at law of his own choice, or to communicate with at least one relative or other person for the purpose of obtaining counsel * * *.'

The evidence discloses that on the night prior to his arrest the appellant gave an election 'party' at his place of business, which lasted all night and until about 7:30 the next morning. His foresight caused him to make arrangements to take care of any of his guests who might overindulge in intoxicating liquors which were in plentiful supply. At about 10:30 a. m. on the same day, while appellant was driving his automobile, it ran through a number of warning cones placed on the street, struck a wood chipper and slid into a dump truck. The arresting officers noted evidence of intoxication of appellant. Upon arrival at police headquarters appellant was asked whether he would submit to a drunkometer test. The drunkometer is a machine to which is attached a balloon-like container into which the subject emits his breath. The breath is then exposed to certain chemicals, and the reactions within the machine automatically give a reading indicating the alcoholic content in the blood stream.

The appellant was assured that he was not required to submit to the test; that it was entirely his choice; that he was not required to answer any question; and that if he did the answers might be used against him. The appellant had about $3,000 on his person--far more than was necessary for bail.

He asked permission to telephone his lawyer but was told that as soon as the 'booking' was completed he could do so. After some hesitation he decided to take the drunkometer test, after asserting that he had had nothing to drink, at least not for four hours. The jury was justified by the evidence in concluding that appellant voluntarily submitted to the drunkometer test, which did indicate that appellant was intoxicated. One of the police officers called appellant's brother and notified him.

The Toledo Police Department operates under a procedure whereby an intoxicated person is detained four hours or until it is safe to release him.

Appellant was released on bail under this rule.

The Fifth Amendment in part provides that no person 'shall be compelled in any criminal case to be a witness against himself.' There is substantial evidence that appellant was under no compulsion. His decision to take the drunkometer test was voluntary. His conversation with the officers was free of any compulsion and after his right to refuse to answer was fully explained. Not more than fifteen minutes elapsed while he was in the presence of the arresting officers in the police station.

We are of the opinion that the following principle stated in Jackson v. Denno, Warden (decided June 22, 1964), 378 U.S. 368, 84 S.Ct. 1774, 1780, 12 L.Ed.2d 908, 915, was adhered to.

'It is now axiomatic that a defendant in a criminal case is deprived of due process of law if his conviction is founded, in whole or in part, upon an involuntary confession, without regard for the truth or falsity of the confession, Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760, and even though there is ample evidence aside from the confession to support the conviction. Malinski v. [People of State of] New York, 324 U.S. 401, 65 S.Ct. 781, 89 L.Ed. 1029; Stroble v. [State of] California, 343 U.S. 181, 72 S.Ct. 599, 96 L.Ed. 872; Payne v. [State of] Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975. * * *'

Appellant complains that he asked to be allowed to confer with his lawyer over the telephone but was denied this privilege. That statement is correct. However, the officer did call appellant's brother. Certainly it may be assumed that the brother would take appropriate steps in behalf of appellant.

The provisions of Section 2935.14 of the Revised Code were fully respected.

An examination of the record tends to prove that the appellant voluntarily submitted to the drunkometer test; that no coercion was used upon him; that no confession was obtained from him; that a police officer telephoned appellant's brother; and that the brief interrogation did not prejudice appellant.

There appearing to be no error prejudicial to the appellant in the record, the judgment of the Court of Appeals is affirmed.

Judgment affirmed.

TAFT, C. J., and ZIMMERMAN, MATTHIAS, SCHNEIDER and PAUL W. BROWN, JJ., concur.

O'NEILL, Judge (dissenting).

This is a classic case of denial of counsel by police authority which could happen to any ordinary ...

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7 cases
  • State v. Woodards
    • United States
    • United States State Supreme Court of Ohio
    • 30 Marzo 1966
    ...... City of Toledo v. Dietz, 3 Ohio St.2d 30, 209 N.E.2d 127, certiorari denied, ......
  • Jackson v. State
    • United States
    • Court of Common Pleas of Ohio
    • 13 Mayo 1970
    ......        [266 N.E.2d 93] In the case of City of Toledo v. Dietz, 3 Ohio St.2d 30, 209 N.E.2d 127, the court, in an ......
  • McNulty v. Curry
    • United States
    • United States State Supreme Court of Ohio
    • 28 Mayo 1975
    ......Toledo v. Dietz (1965), 3 Ohio St.2d 30, 209 N.E.2d 127, paragraph two of the ......
  • City of Columbus v. Lawrence Taylor, 87-LW-1586
    • United States
    • United States Court of Appeals (Ohio)
    • 7 Mayo 1987
    ...... with counsel to determine whether to take an alcohol test. See Toledo v. Dietz (1965), 3 Ohio St. 2d. 30, and Siegwald v. Curry (1974), 40 Ohio. App. ......
  • Request a trial to view additional results

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