Hoban v. Rice

• Decision Date: 03 February 1970
• Citation: 22 Ohio App.2d 130,259 N.E.2d 136,51 O.O.2d 255
• Parties: , 51 O.O.2d 255 HOBAN, Appellant, v. RICE, Registrar, Bureau of Motor Vehicles, Appellee.
• Court: Ohio Court of Appeals

Page 130

22 Ohio App.2d 130

259 N.E.2d 136, 51 O.O.2d 255

HOBAN, Appellant, v. RICE, Registrar, Bureau of Motor Vehicles, Appellee.

Court of Appeals of Ohio, Tenth District, Franklin County.

Feb. 3, 1970.

Syllabus by the Court

Proceedings under Section 4511.191(F), Revised Code, are civil and administrative in nature and are intended for the protection of the traveling public and are independent of any criminal proceedings which may be instituted pursuant to other statutes or ordinances (State v. Starnes, 21 Ohio St.2d 38, 254 N.E.2d 675). The question whether a person has or has not pleaded guilty in criminal proceedings to a charge of operating a motor vehicle while under the influence of alcohol is irrelevant to the question of the suspension of a driver's license under Section 4511.191, Revised Code; and the fact that such person has pleaded guilty in criminal proceedings to a charge of operating a motor vehicle while under the influence of alcohol in no way precludes the Registrar of the Bureau of Motor Vehicles from suspending a driver's license where directed by the provisions of such section.

John T. Ryan, Columbus, for appellant.

C. Howard Johnson, Pros. Atty., and William W. Holmes, Columbus, for appellee.

STRAUSBAUGH, Judge.

This is an appeal from an order of the Municipal Court of Franklin County denying appellant's petition seeking reversal of the order of the Bureau of Motor Vehicles suspending appellant's driver's license for a six-month period. The order is affirmed.

Appellant was arrested on May 25, 1969, by the Upper Arlington Police Department for operating a motor vehicle while under the influence of alcohol, taken to the Upper Arlington Police Station, and offered a chemical sobriety test by the arresting officer. The officer then swore to an affidavit, and later testified before the court, that he had reasonable grounds to believe that appellant was operating a motor vehicle in Franklin County while under the influence of alcohol, and that appellant refused to submit to the designated test when requested to do so, after having been advised of the consequences of refusal.

Appellant's first assignment of error claims that the evidence presented does not support the proposition that appellant was aware of being advised of the consequences of the refusal of taking a chemical test, or that he so refused. In addition to the officer's affidavit, the court had before it the testimony of the officer, 'He refused this test, along with all the other normal tests on the alcoholic influence report. In fact, he refused everything under our normal procedure in handling drunk drivers.' Defendant testified that he remembered nothing of being asked to take a test. The burden of proof was on the appellant to establish that the act which would constitute a refusal was not a refusal. Certainly there was sufficient evidence before the trial court to permit a finding by that court that there had been a refusal. It is a question of fact to be decided by the Municipal Court.

Appellant next asserts that since he had pleaded guilty to the charge of operating a motor vehicle while under the influence of alcohol his license cannot be suspended under Section 4511.191, Revised Code, relying upon the doctrine of In re Dudley (1969), 19 Ohio Misc. 165, 250 N.E.2d 527, and In re Williamson (1969), 18 Ohio Misc. 67, 246 N.E.2d 618, which latter case holds in paragraph four of the syllabus:

'Since the direct purpose of the implied consent law is to make available evidence of the truth in order that the primary criminal action may be prosecuted, the plea of 'guilty' in that case obviates such purpose.'

Supportive of Williamson and Dudley, supra, is the case of Groff v. Rice (decided November 18, 1969), 20 Ohio App.2d 309, 253 N.E.2d 318, wherein the court held that the purpose of Section 4511.191, Revised Code, is 'to aid in determining whether the accused is drunk or sober. A plea of guilty renders the test unnecessary and the requirement inapplicable.'

In California, the Court of Appeals, Second District, Division One, held that the implied consent statute imposed a mandatory duty on the Department of Motor Vehicles and that suspension was a required consequence, and whether or not a driver pleaded guilty to driving while intoxicated was irrelevant to suspension under the implied consent statute. Serenko v. Bright (1968), 263 Cal.App.2d 682, 70 Cal.Rptr. 1. The Court of Appeals, Fourth District, Division One, held that where a driver pleaded guilty to a charge of driving while under the influence of intoxicating liquor 'the guilty plea in no way secures licensee from the mandatory effects' of the statute providing for suspension of his license for six months for refusal to take a chemical test. August v. Department of Motor Vehicles (1968), 264 Cal.App.2d 52, 70 Cal.Rptr. 172.

The Supreme Court of Nebraska held that the driver's 'plea of guilty to a criminal charge * * * does not preclude the subsequent revocation of his driver's license in the administrative proceedings before the director of Motor Vehicles under the provisions of the Implied Consent Act.' Ziemba v. Johns (1968), 183 Neb. 644, 163 N.W.2d 780.

The reasoning and holdings of the courts in Groff, Williamson and Dudley, supra, cannot be upheld in light of the holding of the Ohio Supreme Court in State v. Starnes (decided January 14, 1970), 21 Ohio St.2d 38, 254 N.E.2d 675, wherein the court held that:

"* * * proceedings under Section 4511.191(F), Revised Code, are civil and administrative in nature and are intended for the protection of the traveling public and are independent of any criminal proceedings which may be instituted pursuant to other statutes or ordinances "* * * the fact that the person (whose license has been suspended) has been adjudged guilty of the offense of physical control of a motor vehicle while under the influence of intoxicating liquor does not preclude a finding of reasonable ground to believe that such person was driving while under the influence of alcohol.'

We cannot agree with appellant's argument that it was the intention of...