State v. Tanner

• Citation: 472 N.E.2d 689,15 Ohio St.3d 1
• Decision Date: 06 December 1984
• Docket Number: No. 84-443,84-443
• Parties: , 54 A.L.R.4th 139, 15 O.B.R. 1 The STATE of Ohio, Appellee, v. TANNER, Appellant.
• Court: United States State Supreme Court of Ohio

Page 1

15 Ohio St.3d 1

472 N.E.2d 689, 54 A.L.R.4th 139, 15 O.B.R. 1

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

No. 84-443.

Supreme Court of Ohio.

Dec. 6, 1984.

Syllabus by the Court

R.C. 4511.19(A)(2) is constitutional; it is not void for vagueness, not overbroad, and does not create an unconstitutional presumption.

Charles R. Tanner, appellant herein, pleaded no contest to, and was found guilty of, driving while intoxicated in violation of R.C. 4511.19(A)(2). Appellant had submitted to an intoxilyzer test which recorded a .18 percent blood alcohol level.

Upon appeal, the court of appeals affirmed the trial court's ruling. For the purpose of this appeal, appellant stipulates to the propriety of his conviction and chooses to appeal solely on the averred lack of constitutionality of R.C. 4511.19(A)(2).

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

Edmund M. Sawan, Akron, for appellant.

Harold K. Stubbs, Akron director of law, Mr. Gary Rosen, Pros. Atty., and Ms. Elaine E. Davidson, Akron, for appellee.

Randall M. Dana, Public Defender, and Gregory L. Ayers, Columbus, urging reversal for amicus curiae, Ohio Public Defender Com'n.

LOCHER, Justice.

Appellant attacks the constitutionality of R.C. 4511.19(A)(2) on three grounds. For the reasons set forth below we reject appellant's contentions and affirm the court of appeals in upholding the constitutionality of R.C. 4511.19(A)(2).

R.C. 4511.19 states in pertinent part that: "(A) No person shall operate any vehicle * * * within this state if * * * (2) The person has a concentration of ten-hundreths of one per cent or more by weight of alcohol in his blood." Before evaluating the averred constitutional infirmities of this language a preliminary consideration should be addressed.

We are obliged to give legislative enactments a presumption of validity. State v. Dorso (1983), 4 Ohio St.3d 60, 60-61, 446 N.E.2d 449; Benevolent Assn. v. Parma (1980), 61 Ohio St.2d 375, 375-377, 402 N.E.2d 519 ; State v. Renalist, Inc. (1978), 56 Ohio St.2d 276, 278, 383 N.E.2d 892 . The purpose behind this presumption goes to the very heart of inter-governmental comity and is a tangible demonstration of our recognition that the judiciary is a co-equal branch of government. See, e.g., State ex rel. Arbaugh v. Richland Cty. Bd. of Commrs. (1984), 14 Ohio St.3d 5, 470 N.E.2d 880. Moreover, and in accord with our institutional obligations, statutes must be construed in conformity with the Ohio and United States Constitutions if at all possible. R.C. 1.47; see, also, State v. Sinito (1975), 43 Ohio St.2d 98, 101, 330 N.E.2d 896 .

We also note that numerous jurisdictions, from New York to California, have statutes similar to Ohio's driving while intoxicated statute. ¹ None, to date, has declared this type of statute unconstitutional in the face of attacks similar to the one presented at bar. ² We would affirm, however that this weight of authority, although persuasive, is not dispositive. Accordingly we will proceed to address each of appellant's concerns with particularity.

I Unconstitutional Vagueness

Under the Due Process Clauses of the Fourteenth and Fifth Amendments to the United States Constitution and Article I, Section 16 of the Ohio Constitution, any statute which " 'fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute' " is void for vagueness. Papachristou v. City of Jacksonville (1972), 405 U.S. 156, 162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110. More recently, the United States Supreme Court has stated that " * * * the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." Kolender v. Lawson (1983), 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903. Similarly, this court has stated that " ' * * * [t]he crime, and the elements constituting it, must be so clearly expressed that the ordinary person can intelligently choose, in advance, what course it is lawful for him to pursue.' " Columbus v. Thompson (1971), 25 Ohio St.2d 26, 30, 266 N.E.2d 571 , quoting United States v. Capital Traction Co. (1910), 34 D.C.App. 592, and citing Connally v. General Construction Co. (1926), 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322.

Three "values" rationales are advanced to support the "void for vagueness" doctrine. See Grayned v. City of Rockford (1972), 408 U.S. 104, 108-109, 92 S.Ct. 2294, 2298-2299, 33 L.Ed.2d 222, see, also, Gifford & Friedman, A Constitutional Analysis of Ohio's New Drunk Driving Law (1983), 15 U.Tol.L.Rev. 133, 136-144. (This article concludes, as we do here, that the statute is constitutional.) These values are first, to provide fair warning to the ordinary citizen so behavior may comport with the dictates of the statute; second, to preclude arbitrary, capricious and generally discriminatory enforcement by officials given too much authority and too few constraints; and third, to ensure that fundamental constitutionally protected freedoms are not unreasonably impinged or inhibited. Proper constitutional analysis necessitates a review of each of these rationales with respect to the challenged statutory language.

Under this tripartite analysis the first rationale is easily resolved. We cite with approval language by the Utah Supreme Court that was also utilized to rebut a similar allegation of constitutional infirmity:

"* * * We can see no reason why a person of ordinary intelligence would have any difficulty in understanding that if he has drunk anything containing alcohol, and particularly any substantial amount thereof, he should not attempt to drive or take control of a motor vehicle." Greaves v. State (Utah 1974), 528 P.2d 805, 808; see, also, Roberts v. State (Fla.1976), 329 So.2d 296, 297 (same language used to uphold the Florida statute). Information to the public is readily available ³ indicating the correlation between alcohol consumption, time, and body weight if one desires to drink and hazard the consequences of driving. See State v. Franco (1982), 96 Wash.2d 816, 825, 639 P.2d 1320, 1324. A person of ordinary intelligence should have no difficulty recognizing that abstinence or moderation is a simple means of ensuring compliance with the statute.

No secret has been made of the fact that drinking and driving do not mix. The statute does not limit drinking. Nor does it limit driving. It does, however, limit driving after excessive drinking. ⁴

The second rationale is also easily resolved. The statute stipulates a maximum blood alcohol level of .10 percent. This precise level leaves no discretion in the physical application of the statute. While we are mindful that inconsistent enforcement by officials is always possible (see, e.g., Katz & Sweeney, Ohio's New Drunk Driving Law: A Halfhearted Experiment in Deterrence [1983-1984], 34 Case W.Res.L.Rev. 239), the statute on its face delineates the scope of application. Discriminatory and arbitrary enforcement are thereby discouraged by stipulating a specific blood alcohol level. See Kolender, supra. Moreover, appellant has not alleged, nor has any evidence been adduced, to indicate that R.C. 4511.19 has been applied in a discriminatory manner.

The third and final rationale is also easily resolved with the observation that drunk driving has never been considered a fundamental constitutional right ⁵ under the state or federal Constitutions.

II Unconstitutional Overbroadness

Appellant argues that R.C. 4511.19(A)(2) is unconstitutional because it is an overbroad incursion into the fundamental right to travel without unreasonable governmental hindrance. United States v. Davis (C.A.9, 1973), 482 F.2d 893; Allison v. Akron (1974), 45 Ohio App.2d 227, 343 N.E.2d 128 . Although we have dealt with this concern, in part, by our previous observation that there is no fundamental constitutional right to drive while drunk, some additional observations are in order.

Driving is not a right but a privilege well within the purview of a state's police powers. State v. Starnes (1970), 21 Ohio St.2d 38, 45, 254 N.E.2d 675 ; Breithaupt v. Abram (1957), 352 U.S. 432, 439, 77 S.Ct. 408, 412, 1 L.Ed.2d 448. We find that there is a substantial state interest in reducing the carnage wrought by drunk drivers. Commonwealth v. Mikulan (Pa.1983), 504 Pa. 244, 470 A.2d 1339, 1341. The reduction or elimination of drunk drivers clearly promotes the health, safety and welfare of the citizenry of Ohio. See Cincinnati v. Kelley (1976), 47 Ohio St.2d 94, 97, 351 N.E.2d 85 ; Dragelevich v. Youngstown (1964), 176 Ohio St. 23, 30, 197 N.E.2d 334 . Such an objective, however, while a substantial state interest, is only one part of the two-step inquiry into the exercise of state police powers.

The second part of our inquiry requires us to ask whether the evil the ordinance is intended to obviate is rationally related to the methods specified by the ordinance. Hilton v. Toledo (1980), 62 Ohio St.2d 394, 405 N.E.2d 1047 ; Columbus Auction House, Inc. v. State (1980), 69 Ohio App.2d 1, 429 N.E.2d 1073 . As we have previously observed (see fn. 2, supra ) numerous states have adopted the .10 percent blood alcohol standard after substantial legislative inquiry. Similarly, our own statute was enacted subsequent to the exhaustive findings of a thirty-seven member committee appointed to study the effects of alcohol-impaired driving in Ohio. O'Brien, Driving Under the Influence of Alcohol in Ohio After Senate Bill 432--The Prosecutor's Viewpoint (1983), 15 U.Tol.L.Rev. 171, 174; Bender, Ohio's New Alcohol Impaired Driving Law--A Judicial Perspective (1983), 15 U.Tol.L.Rev. 117, 120-122. After study, the statute was given full legislative review before it was finally signed into law. It is precisely this type of policy...