McNulty v. Curry

• Decision Date: 28 May 1975
• Docket Number: No. 74-630,74-630
• Citation: 328 N.E.2d 798,42 Ohio St.2d 341,71 O.O.2d 317
• Parties: , 71 O.O.2d 317 McNULTY, Appellant, v. CURRY, Registrar of Motor Vehicles, Appellee.
• Court: Ohio Supreme Court

Page 341

42 Ohio St.2d 341

328 N.E.2d 798, 71 O.O.2d 317

McNULTY, Appellant, v. CURRY, Registrar of Motor Vehicles, Appellee.

No. 74-630.

Supreme Court of Ohio.

May 28, 1975.

Syllabus by the Court

1. R.C. 4511.191, the implied-consent statute, is constitutional, and proceedings thereunder are not a criminal prosecution, but are civil and administrative only. (Paragraph one of the syllabus in Hoban v. Rice, 25 Ohio St.2d 111, 267 N.E.2d 311, and paragraph two of the syllabus in State v. Starnes, 21 Ohio St.2d 38, 254 N.E.2d 675, approved and followed.)

2. Under R.C. 4511.191, a person accused of driving while under the influence of alcohol has no constitutional right to refuse to submit to the chemical test designated by a law enforcement agency. (Paragraph two of the syllabus in Westerville v. Cunningham, 15 Ohio St.2d 121, 239 N.E.2d 40, approved and followed.)

3. A person 'refuses' to take such test where the attending law enforcement officers have complied with R.C. 2935.14 and 2935.20, and the accused continues to withhold his consent to submit to the test.

On September 1, 1972, Leo Francis McNulty, appellant herein, was involved in a traffic accident in Highland Heights, a Cleveland suburb, and was arrested for driving while intoxicated between 10:00 p. m. and 11:00 p. m. The affidavit of the arresting officer indicates the time of arrest was 10:55 p. m Defendant testified that his recollection of the evening was 'vague' and 'pretty much a blank.' However, he recalled that on the way to the police station he had asked the arresting officer to call Wayne Short, a friend, and Fredric Kramer, his lawyer.

Upon arriving at the police station, defendant used the telephone for over 20 minutes, in attempts to reach his lawyer. Finally, he reached his friend Short, spoke to him for approximately 10 minutes, and instructed him to call attorney Kramer and apprise him of the arrest.

Between telephone calls, one of the police officers requested defendant to submit to a blood-alcohol test, and when handed a 'refusal form' preparatory to it being read and explained to him by the officer, defendant allegedly laid it on the table in a manner which was described as 'very belligerent and very cocky.'

Then the officer 'read him the refusal form and asked him if he would take the test and he (allegedly) stated that he wouldn't take the test until he got a hold of his attorney,' and that he 'wasn't taking any test until his attorney arrived.' (Emphasis ours.)

At 11:35 p. m., the officers entered in their records that defendant had 'refused' to take a blood-alcohol test, and he was transported to overnight jail facilities in Mayfield Heights.

Defendant's attorney testified that he received notice of the arrest at 11:20 p. m.; that after finding and 'arguing' with defendant, at 12:35 a. m. he got McNulty's 'consent' to take a test; that he asked an officer at 12:45 a. m. to administer a test; and that he was rebuffed by the officer who allegedly 'refused to give any test stating that having obtained a refusal there was no further need for him to give a test in this case.'

Subsequently, defendant was notified by appellee, Registrar of Motor Vehicles, that his driver's license was subject to suspension pursuant to R.C. 4511.191 because he had refused to submit to the test.

Defendant filed a petition in the Lyndhurst Municipal Court, contesting the suspension under R.C. 4511.191(F). That court upheld the suspension, and the Court of Appeals for Cuyahoga County affirmed.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

McNeal, Schick, Archibald & Carlson and Fredric E. Kramer, Cleveland, for appellant.

John T. Corrigan, Pros. Atty., and Thomas A. Cables, Cleveland, for appellee.

WILLIAM B. BROWN, Justice.

Appellant basically contends that he was entitled to, and deprived of, the due process guarantees of the Sixth and Fourteenth Amendments to the United States Constitution 'in that he was unable to consult with counsel prior to making any decision on the test requested by the arresting police department.'

Paragraph two of the syllabus in State v. Starnes (1970), 21 Ohio St.2d 38, 254 N.E.2d 675, reads:

'Section 4511.191(F), Revised Code, does not violate the due process clause of the Fourteenth Amendment to the United States Constitution by permitting suspension of a person's driver's license upon proof less than proof beyond a reasonable doubt that (1) a police officer had reasonable ground to believe the person had been driving a motor vehicle upon the public highways in this state while under the influence of alcohol (2) the person was placed under arrest (3) the person refused to submit to a chemical test upon request of the officer and (4) the person was advised of the consequences of his refusal. 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.' (Emphasis ours.)

The question presented is whether appellant 'refused' to take the test. This court holds that appellant did so refuse by his refusal to take the test 'until he got a hold of his attorney' or 'until his attorney arrived.'

I

In Schmerber v. California (1966), 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908, police officers performed a blood-alcohol test on defendant Schmerber despite his refusal, on the advice of counsel, to consent to the test. Upon that basis, a denial of the right to counsel claim was asserted, but it was rejected by the court because Schmerber, having no right to refuse to take the test, was not denied legal advice as to his rights. The court said, at page 766, 86 S.Ct. at page 1833: '* * * No issue of counsel's ability to assist petitioner in respect of any rights he did possess is presented. * * *'

Lest we lose sight of our constitutional guarantees, the Sixth Amendment, in pertinent part, provides:

'In all criminal prosecutions, the accused shall enjoy the right * * * to have the Assistance of Counsel for his defense.'

Section 10, Article I of the Ohio Constitution provides:

'In any trial, in any court, the party accused shall be allowed to appear and defend in person and with counsel * * *.'

The Fourteenth Amendment provides that no state shall '* * * deprive any person of life, liberty, or property, without due process of law * * *.'

The Supreme Court, in recognition of modern criminal prosecution, has construed the Sixth Amendment provision to 'apply to 'critical' stages of the proceedings. * * * ' United States v. Wade (1967), 388 U.S. 218, 224, 87 S.Ct. 1926, 1930, 18 L.Ed.2d 1149.

In United States v. Wade, supra, at page 227, 87 S.Ct. at 1932, the court determined that lineups are 'critical stages' of the proceedings as opposed to mere 'preparatory steps, such as systematized or scientific analyzing of the accused's * * * blood sample.' (Emphasis ours.) Inasmuch as the submission to a blood test necessarily precedes the blood's analysis, such stage is merely preparatory to a 'preparatory step' and, thus, beyond the ambit of the Sixth Amendment protection.

Under the Ohio implied-consent statute, R.C. 4511.191, a person accused of driving while intoxicated has no constitutional right to refuse to take a blood-alcohol test (Westerville v. Cunningham (1968), 15 Ohio St.2d 121, 239 N.E.2d 40, paragraph two of the syllabus.) That statute is constitutional, and proceedings thereunder are not a criminal prosecution, ¹ but are civil and administrative only. Hoban v. Rice (1971), 25 Ohio St.2d 111, 267 N.E.2d 311, paragraph one of the syllabus; State v. Starnes, supra (21 Ohio St.2d 38, 254 N.E.2d 675, paragraph two of the syllabus).

In light of the foregoing, it is the judgment of this court that the constitutional right to counsel has no application to this case, because the decision to withhold or give consent to take a test is not a 'critical state' of a 'criminal prosecution.'

II

This court further holds that the pre-suspension court hearing, provided by R.C. 4511.191, is sufficient to pass muster under the due process clause. Bell v. Burson (1971), 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90.

It is well settled that a motorist's refusal to submit to an intoxication test, under an implied-consent statute, is an adequate basis for revocation of his driver's license. 60 C.J.S. Motor Vehicles § 164.16, p. 852; 7 American Jurisprudence 2d, 678, Automobiles and Highway Traffic, Section 115.

However, appellant asserts, in effect, that he gave a qualified refusal which was reasonable and legally justified because he merely wanted to postpone the decision until he could confer with his lawyer. That assertion has been before the courts of other states, and the consistent holding thereon is that implied-consent statutes do not sanction a qualified or conditional refusal based upon counsel being present or consulted prior to a decision to take the test. ²

III

Although not raised by the parties, we next consider the applicablility of Ohio's statutory right to counsel contained in R.C. 2935.14 and 2935.20. ³ R.C. 2935.14 does not apply because appellant was not arrested for a felony and there is no evidence that he was unable to make bail. However, the mandatory provisions thereof were fully complied with by the attending police officers becuase this record clearly shows that appellant was '* * * speedily permitted facilities to communicate with an attorney at law of his own choice, or to communicate with at least one * * * person for the purpose of obtaining counsel * * *.' Cf. Toledo v. Dietz (1965), 3 Ohio St.2d 30, 209 N.E.2d 127, paragraph two of the syllabus.

R.C. 2935.20 clearly applies to this case, but, here again, there is no want of compliance on the part of the arresting officers. Evidence of record indicates that appellant was given...