State v. Gill

• Decision Date: 31 August 1994
• Docket Number: Nos. 93-1098 and 94-38,s. 93-1098 and 94-38
• Citation: 70 Ohio St.3d 150,637 N.E.2d 897
• Parties: The STATE of Ohio, Appellant, v. GILL, Appellee. CITY OF SYLVANIA, Appellee, v. ROBINSON, Appellant.
• Court: Ohio Supreme Court

Page 150

70 Ohio St.3d 150

637 N.E.2d 897

The STATE of Ohio, Appellant, v. GILL, Appellee.

CITY OF SYLVANIA, Appellee, v. ROBINSON, Appellant.

Nos. 93-1098 and 94-38.

Supreme Court of Ohio.

Submitted May 10, 1994.

Decided Aug. 31, 1994.

SYLLABUS BY THE COURT

A person who is in the driver's seat of a motor vehicle with the ignition key in the ignition and who, in his or her body has a prohibited concentration of alcohol, is "operating" the vehicle within the meaning of R.C. 4511.19 whether or not the engine of the vehicle is running. (State v. Cleary [1986], 22 Ohio St.3d 198, 22 OBR 351, 490 N.E.2d 574; State v. McGlone [1991], 59 Ohio St.3d 122, 570 N.E.2d 1115, applied and followed.)

Case No. 93-1098

The relevant facts of this case are not in dispute. In March 1992, appellee, Bradley A. Gill, was found sleeping in the driver's seat of his motor vehicle by two police officers. At the time, the vehicle was parked in an Ohio State University parking lot with the radio on and the ignition key in the ignition. The key was turned to the "ACC" position, which was the opposite direction to that required to start the engine. After submitting to a variety of field sobriety tests, Gill was placed under arrest. He was taken to the Ohio State University police station and given a breath test, which resulted in a reading of .159.

Gill was charged, inter alia, with having a prohibited concentration of alcohol in his body in violation of R.C. 4511.19(A)(3). Gill entered a plea of not guilty in the Franklin County Municipal Court and, following a bench trial, was found guilty of the offense. He was sentenced and fined.

Upon appeal, the Court of Appeals for Franklin County reversed the judgment of the trial court. The court of appeals held that Gill was not "operating" a motor vehicle within the meaning of R.C. 4511.19. Finding its judgment to be in conflict with the judgment of the court of appeals in State v. Clark (Oct. 8, 1991), Gallia App. No. 90CA25, unreported, 1991 WL 207250, the court of appeals certified the record of the case to this court for review and final determination.

Case No. 94-38

On December 14, 1992, two park rangers found appellant, Noble Robinson, in his motor vehicle parked at the Secor Metropark, Lucas County, Ohio. Robinson was in the driver's seat of his vehicle slumped over the steering wheel and had passed out. The ignition key to the vehicle was in the ignition, but the motor was not running. Robinson was taken to the Ohio State Highway Patrol station. A breath test was administered to Robinson and resulted in a reading of .192.

Robinson was charged in the Sylvania Municipal Court with operating a motor vehicle while intoxicated in violation of R.C. 4511.19(A)(1) and (3). Subsequently, Robinson filed a motion to dismiss the charges against him, alleging that he did not "operate" his motor vehicle. Following a hearing, the trial court denied Robinson's motion to dismiss. Subsequently, Robinson entered a plea of no contest and was found guilty of the offenses. He was then sentenced and fined.

Upon appeal, the Court of Appeals for Lucas County affirmed the judgment of the trial court. Finding its judgment to be in conflict with the judgment of the court of appeals in State v. Gill (Dec. 8, 1992), Franklin App. No. 92AP-945, unreported, 1992 WL 369291, the court of appeals certified the record of the case to this court for review and final determination.

Case Nos. 93-1098 and 94-38 have been consolidated for purposes of final determination.

Ronald J. O'Brien, City Atty., David M. Buchman, City Prosecutor, and Brenda J. Keltner, Asst. City Prosecutor, for appellant in case No. 93-1098.

Daniel J. Igoe, Columbus, for appellee in case No. 93-1098.

Robert A. Pyzik, Chief Prosecutor, for appellee in case No. 94-38.

Mollenkamp & Fisher and John B. Fisher, Toledo, for appellant in case No. 94-38.

Daniel D. Connor Co., L.P.A., and Daniel D. Connor, Columbus, urging affirmance for amicus curiae, Cent. Ohio Ass'n of Crim. Defense Lawyers, in case No. 93-1098.

DOUGLAS, Justice.

The principal issue presented by these cases involves an interpretation of the word "operate," as that term is used in R.C. 4511.19. Specifically, we are asked to determine whether a person can be found in violation of R.C. 4511.19(A)(1) and (3) where the person is found intoxicated and in the driver's seat of a parked vehicle with the ignition key in the ignition and the vehicle's engine not running.

R.C. 4511.19(A)(1) and (3) provide: "No person shall operate any vehicle, streetcar, or trackless trolley within this state, if any of the following apply: (1) The person is under the influence of alcohol, a drug of abuse, or alcohol and a drug of abuse; * * *. (3) The person has a concentration of ten-hundredths of one gram or more by weight of alcohol per two hundred ten liters of his breath[.]" (Emphasis added.)

In State v. Cleary (1986), 22 Ohio St.3d 198, 22 OBR 351, 490 N.E.2d 574, paragraphs one and two of the syllabus, this court held that:

"1. Operation of a motor vehicle within the contemplation of R.C. 4511.19(A) is a broader term than driving and a person in the driver's position in the front seat of the vehicle with the key in the ignition while under the influence of alcohol or any drug of abuse can be found in violation of the statute.

"2. Entering a motor vehicle, putting the key in the ignition and starting and engaging the engine in a stationary position are sufficient acts to constitute operation within the meaning of R.C. 4511.19(A)(1)." (Emphasis added.)

In Cleary, the defendant had parked his automobile in the parking lot of a King Kwik store. He was found asleep in the driver's seat with the motor running. We held that the defendant's conduct was proscribed by R.C. 4511.19(A)(1) and stated that:

"While this section deals with the prohibition against driving while under the influence and much of the literature and discussion on the subject refer to 'driving,' that word and 'operating' are not synonymous. This statute has been reviewed and amended over the years and the General Assembly continues to adhere to the word 'operate.' Therefore, the prohibition contained in the statute is against 'operating' a vehicle while under the influence, not merely 'driving' it. The term 'operating' encompasses a broader category of activities involving motor vehicles than does 'driving.' Many jurisdictions have found that a person may operate a vehicle even though the vehicle is not moving. Operation of a motor vehicle within the contemplation of the statute is a broader term than mere driving and a person in the driver's position in the front seat with the ignition key in his possession indicating either his actual or potential movement of the vehicle while under the influence of alcohol or any drug of abuse can be found in violation of R.C. 4511.19(A)(1)." (Emphasis added.) Id. at 199, 22 OBR at 352, 490 N.E.2d at 575.

Similarly, in State v. McGlone (1991), 59 Ohio St.3d 122, 570 N.E.2d 1115, syllabus, we held that "[a]n intoxicated person who is in the driver's seat of a motor vehicle parked on private or public property with the key in the ignition is operating the vehicle in violation of R.C. 4511.19(A)(1)." (Emphasis added.) The defendant in McGlone was found asleep behind the wheel of his car with the motor running in a driveway of a private residence. We concluded that the trial court erred in granting the defendant's motion to dismiss and reasoned that: "R.C. 4511.19 is not only directed to those who drive on public streets. It prohibits the operation of a motor vehicle anywhere in the state while the driver is under the influence of drugs or alcohol. We agree with the dissent's observation in the court of appeals that: '[i]f you are under the influence [of alcohol or drugs], don't drive or put yourself in a position of control of a vehicle. If you do, you pay the penalty.' " Id. at 124, 570 N.E.2d at 1117.

Gill (case No. 93-1098) and Robinson (case No. 94-38) propose that Cleary and McGlone are distinguishable from their situations in that the defendants in Cleary and McGlone were found in their vehicles with the engines running. Gill and Robinson suggest that such a distinction is critical and, based on the fact that the engines to their vehicles had not been started, they could not have violated R.C. 4511.19.

Gill and Robinson have applied an improper reading of Cleary and McGlone. Those decisions were intended to establish that if a person is found intoxicated in the driver's seat of a parked vehicle with the ignition key in the ignition, the person is guilty of violating the statute. Our holdings in Cleary and McGlone were never intended to require the state to prove that the defendant had started the vehicle's engine after consuming alcohol or that the engine was running at the time the defendant is apprehended. A clear purpose of R.C. 4511.19 is to discourage persons from putting themselves in the position in which they can potentially cause the movement of a motor vehicle while intoxicated or under the influence of any drug of abuse. Accord Cleary and McGlone, supra. Prohibition of potentially harmful conduct need not await occurrence of the act. As we, in effect, held in Cleary, the intent of the legislature in enacting strong legislation involving drinking and driving was to say, "If you drink--do not drive. If you drive--do not drink!" The cases from this court on the subject have, for good reason, carried out this legislative intent.

The gravity of the problem of driving while intoxicated is revealed by the number of needless tragic injuries and deaths that occur annually on the roadways in this state. Accordingly, we hold that a person who is in the driver's seat of a motor vehicle with the ignition key in the ignition and who, in his or her body has a prohibited concentration of alcohol, is "operating" the vehicle within the meaning of R.C. 4511.19 whether or not the engine...