State v. Telakowicz

• Decision Date: 17 September 1991
• Docket Number: No. 91-TR-C-7207,91-TR-C-7207
• Citation: 580 N.E.2d 101,61 Ohio Misc.2d 499
• Parties: The STATE of Ohio v. TELAKOWICZ. *
• Court: Ohio Court of Common Pleas

Page 499

61 Ohio Misc.2d 499

580 N.E.2d 101

The STATE of Ohio v. TELAKOWICZ. ^*

No. 91-TR-C-7207.

Ashland Municipal Court,

Ohio.

Decided Sept. 17, 1991.

W. David Montague, Ashland, for plaintiff.

Damian J. Vercillo, Ashland, for defendant.

HUGH I. TROTH, Acting Judge.

This cause came on to be heard upon the motion of the defendant, Kevin L. Telakowicz, to dismiss the case against him and/or to suppress as evidence at trial the results of the test administered to him after his arrest on July 27, 1991.

Sgt. James Leibolt, a deputy sheriff for some eighteen years, testified that he arrived at a rural farmhouse as a result of a complaint and found a pickup truck parked on a driveway leading to a barn. The pickup truck was facing the barn, with the rear of the truck headed downhill.

The officer found the defendant asleep behind the steering wheel, a beer can between his legs, and both of the defendant's hands clutching the beer can. Neither of defendant's hands was on the wheel. The truck's keys were not in the ignition; however, they were on the seat to the right of the defendant. There was evidence that there were other beer cans in the car, and that the defendant was difficult to awaken. The truck's doors were locked.

When the officer got the defendant's attention, the defendant looked up and then depressed the clutch on the pickup truck which resulted in the truck rolling backwards. The truck rolled about five feet when the officer brought the fact of the vehicle's movement to the attention of the defendant who then released the clutch. One other time, before the defendant got out of the truck, he depressed the clutch and the car moved approximately one foot to its rear. The police cruiser was parked behind the pickup truck, but there was no contact between the rear of the pickup truck and the front of the deputy's cruiser. There is no evidence as to how long the defendant was present, nor whether he drank while parked on the barn bank.

The attorney for the state and the attorney for the defendant agree that the burden is on the defendant to sustain his motion by a preponderance of the evidence.

This court, following the submission of evidence and before arguments of counsel, reviewed, with counsel for both parties, ten cases listed as citations under R.C. 4511.19.

Those cases, summarized below, are:

State v. Cleary (1986), 22 Ohio St.3d 198, 22 OBR 351, 490 N.E.2d 574. 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 operating.

Cincinnati v. Kelley (1976), 47 Ohio St.2d 94, 1 O.O.3d 56, 351 N.E.2d 85. A person must be in the driver's seat, behind the steering wheel, in possession of the ignition key, and be in such condition that he is physically capable of starting the engine and causing the vehicle to move to be in actual physical control.

Mentor v. Giordano (1967), 9 Ohio St.2d 140, 38 O.O.2d 366, 224 N.E.2d 343. The evidence must show beyond a reasonable doubt that the accused was under the influence of intoxicating liquor while operating the vehicle.

Brownfield v. McCullion (1984), 20 Ohio App.3d 197, 20 OBR 242, 485 N.E.2d 745. A stationary vehicle is "operated" when a person is seated behind the steering wheel of the vehicle with the key in the ignition lock and the motor running.

Toledo v. Voyles (1984), 14 Ohio App.3d 419, 14 OBR 538, 471 N.E.2d 823. It is not necessary that the vehicle in question be operable.

State v. McCrory (1972), 31 Ohio App.2d 75, 60 O.O.2d 169, 285 N.E.2d 896. Where the only evidence is that the defendant pulled off the berm with the lights out and no motor running, asleep, and alone, and then under the influence of alcohol, there can be no conviction by proof beyond a reasonable doubt that while the defendant was operating his vehicle, he was under the influence.

State v. Wymbs (1984), 10 Ohio Misc.2d 26, 10 OBR 404, 462 N.E.2d 195. A person "operates" a motor vehicle when he intentionally engages in an act that uses any electrical or mechanical method or methods which will set in motion the motive power of the vehicle. (Comment from the court: mechanical method would certainly be depressing the clutch, but does that "set in motion the motive power of the vehicle?")

State v. Williams (1969), 20 Ohio Misc. 51, 49 O.O.2d 97, 251 N.E.2d 714. Express language on "actual physical control of a vehicle" was deleted by amendment of R.C. 4511.19.

Middletown v. Dennis (1954 M.C.), 67 Ohio Law Abs. 362, 120 N.E.2d 903. Where the defendant was found at a scene, not in a motor vehicle, but a terrific collision had taken place and he was the only person at the scene, and he was intoxicated, there is sufficient evidence to warrant a conviction of driving while intoxicated.

State v. McCaig (1988), 51 Ohio App.3d 94, 554 N.E.2d 925, syllabus. "A trial court must apply the totality-of-the-circumstances test to determine if there were reasonable grounds to believe that a person had been operating a motor vehicle while under the influence of alcohol."

Counsel for both parties agree that the issue before this court is whether the movement of the truck, when the clutch was depressed, under all of the operative circumstances outlined above, constitutes operating a motor vehicle.

The defendant argues that it was the circumstance of the geography of the area that caused the vehicle to move back when the clutch was depressed. The prosecutor argues that the defendant was seated in the car with his feet on the controls, the keys at his side, and that the truck actually moved twice.

Following the submission of the case to this court, the state gave the court copies of State v. McGlone (1991), 59 Ohio St.3d 122, 570 N.E.2d 1115, which was not heretofore mentioned by the court. McGlone is the most recent Supreme Court case dealing with operating a motor vehicle under the influence of alcohol. We note that in that case a witness testified that she heard gravel crunching in her driveway and the sound of a car motor running. The witness' husband, awakened by his alarm clock, also heard a car engine running. The witness then called police. When a police officer arrived, he found McGlone asleep at the car wheel with the motor running. It is significant in McGlone that the vehicle's motor was running. The Supreme Court held that McGlone was operating his vehicle under the influence of alcohol.

The state also submitted to the court a copy of State v. Cleary, supra. This is one of the cases heretofore summarized by the court. The court, in Cleary, found that Cleary was operating a vehicle.

The state also submitted to the court a copy of State v. Wymbs, supra. This case is also one that was heretofore summarized by the court.

Wymbs, 10 Ohio Misc.2d at 27, 10 OBR at 405, 462 N.E.2d at 196, cites, with approval, Annotation (1979), 93 A.L.R.3d 7, stating that: " 'It seems clearly established that the term "operating" as used in statutes prohibiting the operation of a vehicle while intoxicated is broader than the term "driving." * * * ' " Also, in Wymbs, the court stated at 28, 10 OBR at 406, 462 N.E.2d at 197, that: "Since the testimony is unrebutted that defendant started the vehicle in question, we adopt the above definitions of 'operate' and hold that defendant operated the vehicle as a matter of law. * * * "

The attorney for the defendant has submitted a memorandum to the court and cites State v. McCaig (1988), 51 Ohio App.3d 94, 554 N.E.2d 925, State v. McGlone, supra, Mentor v. Giordano, supra, and Brownfield v. McCullion, supra, all of which have heretofore been discussed; but also cited by the defendant is an additional case, State v. Martin (1982), 5 Ohio Misc.2d 22, 5 OBR 374, 450 N.E.2d 306.

Martin, which is a 1982 case, certainly does not appear to be the current law of Ohio. The Martin case was a Hamilton County Municipal Court case, and that court made much over the fact that R.C. 4511.19, as it stood in 1982, did not contain the words "being in actual physical control."

Because these words were removed from the code, the court felt that even though the driver of the truck was seated in the truck with the motor running, he could not be found guilty of operating a motor vehicle under the influence.

The Martin opinion at 23, 5 OBR at 375, 450 N.E.2d at 307, states: " * * * Persons who realize that they have consumed too much alcohol should be encouraged to pull off the road and not operate a vehicle on the highways."

In the 1991 Supreme Court case mentioned above, State v. McGlone, supra, the Supreme Court took the exact opposite position. The Supreme Court stated, 59 Ohio St.3d at 123-124, 570 N.E.2d at 1116-1117: "McGlone was sitting in the driver's seat of his car with the motor running. The car was under control. He could have moved the car whenever he wanted and, in fact, admitted he had been driving the car. A breathalyzer test showed he was legally under the influence of alcohol. In spite of these facts, McGlone urges us to agree with the court of...