Narten v. Curry
| Decision Date | 14 September 1972 |
| Docket Number | No. SU,SU |
| Citation | 33 Ohio Misc. 94,291 N.E.2d 799 |
| Parties | , 62 O.O.2d 121 NARTEN v. CURRY, Registrar, Bureau fo Motor Vehicles. 72-115. |
| Court | Ohio Court of Common Pleas |
John T. Jaeger, Cleveland, for plaintiff.
James Alexander, Jr., Cleveland, for defendant.
The petitioner was arrested for and charged with the offense of operating a motor vehicle while under the influence of alcohol. He was taken to the headquarters of the Geauga County Sheriff's Department and there requested to submit to a 'breathalyzer' test for intoxication.
Petitioner requested permission to consult his attorney before taking any test or making any statement with regard to it. For almost one hour the arresting officers and others at the station house tried to persuade petitioner to take the test and then call his lawyer.
Finally, petitioner was permitted to call his attorney, who advised him to submit to the test. He then requested that the test be administered. The officers refused to permit the test to be given and he is before this court petitioning the court to restrain the registrar of motor vehicles from suspending his right to operate a motor vehicle for six months for failure to submit to the alcohol tests as prescribed by R.C. § 4511.191.
The aforementioned section provides, among other things, that a chemical test may be taken within two hours of the time of arrest of a person charged with driving under the influence of alcohol.
This court is mindful of the decision of In re Brooks, 27 Ohio St.2d 66, 271 N.E.2d 810, wherein the court held that the two hour limitation controlled only the admissibility of the test result and did not entitle the person charged the right to determine at what point in the two hour period he or she would submit to the test.
The fact situation in the instant case differs considerably from that in the Brooks case; the considerable difference being the fact that petitioner sought advice of counsel before either submitting or refusing the test within the two hour period of admissibility standard.
This court must be mindful, too, of the recent decision of the Supreme Court of the United States, Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530, wherein the court held that an indigent defendant had the right of counsel furnished to him in any case in which the penalty included imprisonment. It is unnecessary to belabor the point that, certainly, one who can afford counsel is not to be denied that right.
Driving a motor vehicle while under the influence of alcohol is a most serious offense and under the Revised Code of Oho conviction of the offense carries with it a mandatory jail sentence of not less than three days, ...
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Heles v. State of SD
...317, 328 N.E.2d 198 (1975) (state statute allows a person to communicate with an attorney following arrest or detention); Narten v. Curry, 33 Ohio Misc. 94, 62 Ohio Ops.2d 121, 291 N.E.2d 799 (1972) (a person arrested for DWI is entitled to the right of counsel equally with those charged wi......
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Siegwald v. Curry
...consult with counsel prior to submitting to a test. See Troy v. Curry (1973), 36 Ohio Misc. 144, 303 N.E.2d 925, and Narten v. Curry (1972), 33 Ohio Misc. 94, 291 N.E.2d 799. On the other hand, at least one trial court, in addition to those instances where we have affirmed trial courts as i......
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McNulty v. Curry
...8 L.Ed.2d 405; David v. Strelecki, supra, fn. 1. Contra, Troy v. Curry (1973), 36 Ohio Misc. 144, 303 N.E.2d 925; Narten v. Curry (1972), 33 Ohio Misc. 94, 291 N.E.2d 799.3 R.C. 2935.14 reads:'If the person arrested is unable to offer sufficient bail or, if the offense charged be a felony, ......
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State v. James E. Lowers
...of a refusal to submit to a breath test be excluded on a per se basis, is unfounded in laws of this state and not even Narten v. Curry (1972), 33 Ohio Misc. 94, 96, cited by the dissent, held this to be the rule. Moreover, the examples of evidence excluded pursuant to Evid.R. 403(A) given b......