State v. Hurbean

• Decision Date: 29 July 1970
• Citation: 261 N.E.2d 290,23 Ohio App.2d 119
• Parties: , 52 O.O.2d 152 The STATE of Ohio, Appellant, v. HURBEAN, Appellee.
• Court: Ohio Court of Appeals

Page 119

23 Ohio App.2d 119

261 N.E.2d 290, 52 O.O.2d 152

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

Court of Appeals of Ohio, Fifth District, Stark County.

July 29, 1970.

Syllabus by the Court

1. R.C. 4511.191, Implied Consent, is to be liberally construed in favor of the public safety and so as to advance the remedy of suspending the operator's license of a driver who refuses, under the statutory circumstances, to take a sobriety test.

2. A Municipal Court hearing a petition filed under R.C. 4511.191 by a person who claims error in the suspension of his driver's license is limited to the issues specified in this statute.

3. Evidence bearing upon the fact question whether the person under arrest understood what was told him may be considered for whatever light, if any, it may shed upon the issue whether such person did, in fact, refuse to submit to the test. However, where there is in fact a refusal to take the test and where the advice as to the consequences of the refusal to submit to the chemical test is given in the manner and form prescribed by law, the issue whether the advice was subjectively understood by the person under arrest is not an independently justiciable issue.

4. The manner and form prescribed by R.C. 4511.191(C) for the giving of the statutory advice referred to therein requires, inter alia, that the prescribed form be shown to the person under arrest. Compliance with this requirement is a condition precedent to the existence of refusal to take the chemical test provided for in R.C. 4511.191.

David D. Dowd, Jr., and James D. Snively, Canton, for appellant.

Nicholas G. Caplea, Canton, for appellee.

PUTMAN, Judge.

This is an appeal from a judgment of the Canton Municipal Court entered pursuant to proceedings under R.C. 4511.191, ordering the Registrar of Motor Vehicles of the state of Ohio not to suspend the driver's license of Sylvia Hurbean, hereinafter designated as the licensee.

This matter was throughly considered by the trial court, as reflected by two separate journal entries, the first styled 'Court Ruling' filed April 18, 1969, and the second styled 'Court's Ruling on Motion for Reconsideration-Reversal of Suspension Ruling' filed April 25, 1969.

Because of the clarity with which they set forth the issues, we set them forth in full:

'COURT'S RULING

'This matter comes before the Court on an appeal from an order of the Registrar of Motor Vehicles suspending the operator's license of the appellant for a period of six months for having refused to take a chemical test, after having been arrested and charged with operating an motor vehicle while under the influence of alcohol.

'The entire procedure in this case is subject to the provisions of R.C. 4511.191, effective 3/10/68. The gist of this section, and the penalties connected therewith is, 'the refusal of the arrested person to take the test.'

'R.C. 4511.191 subsection (F) provides in part:

"Any person whose license or permit to drive or nonresident operating privilege has been suspended under this section, may, within twenty days of the mailing of the notice provided above, file a petition in the Municipal Court or the county court, * * * in whose jurisdiction such person resides, agreeing to pay the cost of the proceedings and alleging error in the action taken by the Registrar of Motor Vehicles under division (D) * * *. The scope of such hearing shall be limited to the issues of whether a police officer had reasonable ground to believe the person had been driving a motor vehicle upon the public highway in this state while under the influence of alcohol, whether the person was placed under arrest, whether he refused to submit to the test upon request of the officer, and whether he was advised of the consequences of his refusal.'

'Section (G) provides in part:

"In hearing the matter and determining whether such person has shown error in the action taken by the Registrar of Motor Vehicles under division (D) of this section, the court shall decide such issue upon the registrar's certified affidavit and such additional relevant, competent, and material evidence as either the registrar or the person whose license is sought to be suspended submits.

'If the court finds from the evidence submitted that such person has failed to show error in the action taken by the registrar of motor vehicles under division (D) of this section or in one or more of the matters within the scope of the hearing as provided in division (F) of this section * * *.'

'The court notes that subsection (G) places the burden of proof on the appellant to show any error in the action taken by the Registrar. This subsection also provides that the court shall decide this issue upon the registrar's certified affidavit and such additional evidence as either side submits.

'The scope of the hearing is also spelled out in subsection (F) of R.C. 4511.191 namely:

'1. Whether the officer had reasonable grounds to believe that the defendant had been driving a motor vehicle upon the public highways in this state while under the influence of alcohol.

'2. Whether the defendant was placed under arrest.

'3. Whether she refused to submit to the test upon request of the officer.

'4. Whether she was advised of the consequences of her refusal.

'The appellant offers no evidence and raises no issue on the first three grounds. On issue number 4 there is no denial that she was offered some advice, and that something was read to her, but that she did not understand the meaning of what was read and said to her.

'The court believes that both officers did tell her that if she did not take the test she would lose her license for six months. The appellant has been in this country for many years, during which she had been exposed to the English language, and a person who speaks a foreign language usually understands English better, and before they learn to speak it.

'The court is of the opinion that the appellant has failed to show any error in one or more of the matters within the scope of this hearing in the action taken by the Registrar of Motor Vehicles, and the court hereby assesses the costs against the appellant and orders that the operator's license of the appellant be and the same is hereby suspended for a period of six months. Exceptions to the appellant.

'Judge' 'COURT'S RULING ON MOTION FOR RECONSIDERATION-REVERSAL OF SUSPENSION RULING

'The defendant has filed a motion for reconsideration which has caused the court added concern as to the correctness of the decision heretofore rendered. The court is satisfied with the analysis of the applicable parts of the statute and the burden placed upon the defendant or appellant in this case.

'Webster's Third New International Dictionary defines the word 'understand' as follows: 'To grasp the meaning of; comprehend. To apprehend the meaning or idea by knowing what it conveyed by the words.'

'The exact state of the mind of the defendant at the time of her arrest and as to how clear she did or did not understand what was told her, only she will ever know. The court has attempted to form a mental picture of the events and circumstances surrounding her apprehension and detention. The court pictures this defendant stopped by a police officer a few blocks from her home late at night. She is somewhat of an emotional person, and there were words, and even a tussle between her and the arresting officer to the extent that she suffered a cut on her hand and she was handcuffed.

'The court further notes that her English was not too good, and as heretofore stated, just how much and how well she understood everything that was said and read to her under these circumstances, is subject to some question or doubt in the court's mind.

'This being a criminal case, every phase of the proof on behalf of the State ought to satisfy a court beyond a reasonable doubt. Her knowledge and understanding is an essential element to be considered.

'Taking all of these things into consideration, the court believes that error was committed in the opinion heretofore rendered, and now reverses said opinion, and finds that the petitioner has shown error in the proceedings, and the petition is granted and no suspension of her driver's license shall be imposed.

'Exceptions to the state.

'Judge'

After these Municipal Court proceedings were completed and this matter pending in our Court of Appeals, the Supreme Court of Ohio in the case of State v. Starnes, 21 Ohio St.2d 38, 254 N.E.2d 675, decided January 14, 1970, that the 'Implied Consent' statute, R.C. 4511.191, was civil and administrative in nature and constitutional.

The second paragraph of the syllabus 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 her 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.'

Applying that paragraph of the syllabus, we hold that it was reversible prejudicial error to require proof 'beyond a reasonable doubt.'

In view of the fact that the first two justiciable issues under R.C. 4511.191(F) were resolved in favor of the state, no prejudice respecting the court's finding on those issues appears to have been done the state.

Likewise, the court's finding on the third and fourth justiciable...