Ronald D. Cline v. Bureau of Motor Vehicles, 90-LW-2105
| Decision Date | 22 June 1990 |
| Docket Number | 89FU000010,90-LW-2105 |
| Parties | Ronald D. CLINE, Appellant, v. BUREAU OF MOTOR VEHICLES, Appellee. |
| Court | Ohio Court of Appeals |
Peter D. Short, for appellant.
William R. Swigart, Prosecuting Attorney, and Roger D. Nagel, for appellee.
OPINION AND JOURNAL ENTRY
This is an appeal of a judgment of the Fulton County Court affirming the one year suspension of plaintiff-appellant's automobile operator's license by the Registrar of the Bureau of Motor Vehicles ("BMV") pursuant to R.C. 4511.191, the implied consent statute.
On March 8, 1989, appellant filed a petition to revoke or modify notice of suspension in the trial court. On May 24, 1989, a hearing was held on that petition. At the hearing, appellant testified that he and a nephew, Doug Ball, had been in Pioneer, Ohio, on business on the evening of November 19 1989 and that they later had dinner in Pioneer and had a "few beers." The pair then drove to Alvordton Ohio, and spent a few hours at the Alvordton Tavern where they consumed some more beers. Appellant testified that they left the tavern just after midnight and headed for West Unity, Ohio, in order to drop an acquaintance at her home. Appellant stated that Ball was driving Cline's 1988 "double seater" pick up truck at that time and that due to weather conditions he failed to negotiate a turn in the road, went off the road, across a ditch, and came to rest partially in a field and partially in the ditch. The front wheels of the truck were mired in the mud and, according to appellant, the back wheels were off the ground hanging over the ditch. Appellant and his nephew manually attempted to push the truck but failed. Appellant testified that when they re-entered the truck, he sat behind the wheel and his nephew moved to the back seat.
Ball also testified at the hearing and related substantially the same sequence of events as his uncle. Trooper Gregory A Rayot of the Ohio State Highway Patrol testified that he was dispatched to the accident scene and arrived at approximately 3:30 a.m. and saw the truck stuck in the ditch. He stated that the vehicle's engine was running, that appellant was asleep behind the steering wheel, and that appellant did not initially respond when the trooper knocked on the window. Rayot further attested that when Cline finally did respond, appellant's speech was "slurred and mumbled" and that the trooper detected the strong odor of alcohol on appellant's breath. Rayot also testified that appellant told him that he, not his nephew, was operating the truck at the time of the accident. At that point, the trooper arrested appellant, transported him to the Montpelier Police Department, and requested that Cline take an breathylyzer test. Appellant refused and a refusal form was completed and witnessed.
On May 24, 1989, the trial court filed a journal entry affirming the suspension of appellant's operator's license. Upon timely request of appellant, that court issued findings of fact and conclusions of law on June 8, 1989. On June 19, 1989, appellant filed a motion for a new trial based upon Civ.R. 59(A)(3) and 59(A)(8). This motion was denied, without hearing, by the court below on June 20, 1989.
Appellant appeals the affirmance of the suspension and asserts as error:
"Assignment of Error I(a)
THE TRIAL COURT ERRED IN FINDING THAT RONALD D. CLINE OPERATED HIS TRUCK BY DRIVING IT INTO THE PRIVATE FIELD.
"Assignment of Error I(b)
THERE IS NO EVIDENCE TO SUBSTANTIATE A FINDING THAT RONALD D. CLINE WAS OPERATING HIS TRUCK IN THE FIELD WHEN THE TROOPER ARRIVED.
"Assignment of Error II(a)
APPELLANT RONALD CLINE DID NOT VIOLATE R.C. SEC. 4511.191 SINCE THE BREATHYLYZER TEST WAS OFFERED TO HIM MORE THAN TWO HOURS AFTER HE HAD ALLEGEDLY OPERATED HIS VEHICLE ON A PUBLIC HIGHWAY.
"Assignment of Error II(b)
APPELLANT RONALD CLINE IS NOT SUBJECT TO THE IMPLIED CONSENT LAW OF R.C. SEC. 4511.191 WHILE IN A PRIVATE FIELD.
"Assignment of Error III
THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION FOR A NEW TRIAL BASED UPON NEWLY DISCOVERED EVIDENCE.
Appellant's assignments of error I(a) and I(b) and II(b) are interrelated and shall, therefore, be considered together.
R.C. 4511.191, the implied consent statute, as it was effective in November 1988, provided that one who operates a motor vehicle upon a public highway in Ohio shall be deemed to have consented to a chemical breath test if there existed probable cause to believe that he was operating his vehicle while under the influence of alcohol and that he was arrested for that offense. A refusal to submit to the test requires that the registrar of motor vehicles, upon receiving certification that certain statutory conditions were followed, must suspend the arrested person's operator's license for one year. See R.C. 4511.191(C) and (D). After receiving notification of the suspension, the licensee has a right to file a petition in a municipal or county court requesting a review of the suspension. R.C. 4511.191(E) and (F).
At the hearing on this matter, the petitioner has the burden of proving, by a preponderance of the evidence, that the registrar erred in suspending his license. Hoban v. Rice (1971), 25 Ohio St.2d 111. Furthermore, the scope of the hearing is limited to the following issues:
(1) whether the arresting officer had reasonable ground to believe that the person had been operating a motor vehicle upon the public highways of Ohio while under the influence of alcohol;
(2) whether the petitioner was placed under arrest;
(3) whether the petitioner refused to submit to the chemical test upon request;
(4) if the petitioner refused, whether he was advised of the consequences of his refusal; and
(5) whether the petitioner's employment is of such a nature that his ability to continue in the employment would be seriously affected if the suspension is imposed. See R.C. 4511.191(F) and R.C. 4511.191(G)(5). See, also, Hoban, supra, at paragraph two of the syllabus.
Appellant raises questions concerning issue (1) in his Assignments of Error I(a) and I(b) and II(b).
Appellant first contends that a finding that he was operating a motor vehicle upon a public highway, i.e., that Cline was operating the truck prior to and at the time of the accident, is against the manifest weight of the evidence offered at hearing.
A judgment supported by some competent, credible evidence going to all the essential elements of a case will not be reversed on appeal as being against the manifest weight of the evidence. C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, syllabus. Further, a presumption of correctness is accorded to the findings of the trial court because "the trial judge is best able to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibility of the proffered testimony." Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80.
In the case before us, the trial court had the opportunity to observe the witnesses and to hear their testimony. That court chose to accord greater weight and credibility to the testimony of Trooper Rayot. That issue is a proper matter for the trier-of-fact. See Alarm Device Mfg. Co. v. Arnold Industries (1965), 65 Ohio App.2d 256, 263. Therefore, this court refuses to substitute its judgment for that of the trial court. Id.
Appellant also argues that any determination that Cline was operating the truck on a public highway at the time Rayot arrived at the accident scene is against the manifest weight of the evidence.
Although both parties raised this issue, the trial court's judgment entry reflects that the court's decision was based upon a finding that appellant was operating his pick up truck upon a public highway prior to and at the time of his accident and not at the time of discovery. Therefore, this issue is not relevant and the court will not substitute its judgment for that of the trial court. Accordingly, appellant's Assignments of Error I(a), I(b) and II(b) are found not well-taken.
In appellant's assignment of error II(a), he asserts that an automobile operator's license cannot be suspended under the implied consent statute when a refusal to take an offered breathalyzer test occurs more than two hours after the licensee has operated a vehicle on a public highway while allegedly intoxicated.
Appellant relies on Brownfield v. McCullion (1984), 20 Ohio App.3d 197, to support the proposition that when a test, if taken more than two hours after the alleged offense, would be per se inadmissible in a prosecution for operating under the influence, the refusal to submit to such a test does not warrant an implied consent suspension.
The true holding of Brownfield, supra, as found at paragraph two of the syllabus, is
The court in Brownfield, supra, would thus allow test results into evidence taken after the two hour provision, but where there is evidence of a substantial delay beyond that time, would permit an inference of inadmissibility and require that the registrar assume the burden of going forward with evidence to rebut the inference of inadmissibility. The time delay in Brownfield, s...
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