State v. Williams

• Decision Date: 30 June 1969
• Docket Number: No. T-5100,T-5100
• Citation: 20 Ohio Misc. 51,251 N.E.2d 714
• Parties: , 49 O.O.2d 97 The STATE of Ohio v. WILLIAMS.
• Court: Ohio Court of Common Pleas

Page 51

20 Ohio Misc. 51

251 N.E.2d 714, 49 O.O.2d 97

The STATE of Ohio v. WILLIAMS.

No. T-5100.

Canton Municipal Court, Ohio.

June 30, 1969.

Syllabus by the Court

1. When an existing statute is repealed and a different statute on the same subject is at the same time enacted, it is to be presumed that the Legislature intended to change the effect and operation of the law to the extent of the change in the language thereof.

2. Although the definition of 'operator' in Section 4511.01(X), Revised Code, includes one who is in 'actual physical control of a vehicle,' since express language on the latter element was amended out of Section 4511.19, Revised Code, the drunken driving statute, it should not be construed as applicable in a prosecution under the latter section.

3. Under Section 2935.03, Revised Code, as amended effective December 13, 1967, the specified law-enforcement officers may arrest without a warrant upon reasonable ground to believe that there has been a violation of certain misdemeanor sections, but may not so arrest as to any other misdemeanors.

J. Whitney Ake, City Prosecutor, for the state.

Louis H. Paar, Canton, for defendant.

HUNTER, Judge.

Prior to the commencement of the trial in this case the defendant made a motion to suppress the evidence on the ground that the arrest of the defendant was illegal. In support of his motion he called the two arresting officers, whose testimony indicated that on September 15, 1968, at about three o'clock a. m., these arresting officers receive information over the police radio system. From this information they went to the place indicated on Newton Avenue, Northwest.

The place on Newton where they parked was about sixty feet from the car in which the defendant was found. The officers approached the defendant and found him seated in his automobile behind the steering wheel with the motor running. They never saw the car in motion.

The defendant was asked to turn off the ignition and upon his failure to do so, one of the officers shut it off.

As was described by one of the officers, the car was parked in a cockeyed position in a small parking lot used by the residents of the apartment in which the defendant lived.

The officers testified that they placed the defendant under arrest when they put him in the cruiser. The defendant showed all the usual signs and symptoms of being under the influence of alcohol. The officers also noted that there had been some damage to a building and one or more automobiles. All of this was on private property and in the parking lot which the defendant used in connection with his residence.

A motion to suppress the evidence challenges only the legality of the arrest. If the arrest was legal, the motion should be overruled. If the arrest was illegal, the motion must be sustained.

As the late Judge Zimmerman, in the case of City of Mentor v. Giordano, 9 Ohio St. 2d 140, 145, 224 N.E.2d 343, 347, very clearly said:

'There are many reported cases dealing with the subject of operating a motor vehicle while under the influence of intoxicating liquor, and they are in conflict. Some hold that the term, 'operate', as used in a statute or ordinance connotes motion, and, unless the vehicle is in motion, there is no offense. Other cases hold, in particular circumstances that 'operate' may apply to a stationary vehicle, where it is plain that the operator is in a thoroughly intoxicated state and obviously has moved or intends to move the vehicle.'

And again on page 146, 224 N.E.2d, at p. 348, he made the following statement:

'Generally, each 'drunken driving' case is to be decided on its own particular and peculiar facts.'

In order to arrive at a decision in this case two sections of the Revised Code must be given careful consideration. They are Section 2935.03, Revised Code, the so-called arrest statute, and Section 4511.19, Revised Code, the so-called driving drunk statute. Section 4511.19, Revised Code, provides as follows:

'No person who is under the influence of intoxicating liquor, narcotic drugs, or opiates shall operate any vehicle, streetcar, or trackless trolley within this state.'

One of the essential elements of this offense, which the state must prove beyond a reasonable doubt, is the answer to the question: 'was the defendant found operating a vehicle at the time and place of his apprehension?'

Division (W) of Section 4511.01, Revised Code, provides:

"Driver or operator' means every person who drives or is in actual physical control of a vehicle * * *.'

This definition which the Legislature has given to describe the meaning of the word 'operator' is not in keeping with the provisions of the statute involved, and a careful examination of both of said statutes is necessary.

Section 6296-30, General Code, effective October 1, 1936, one of the early statutes covering so-called drunken driving, provided in part as follows:

'(c) Whoever operates a motor vehicle of any kind on any public highway or street while in a state of intoxication, or under the influence of alcohol, narcotics, or opiates, upon conviction thereof shall be punished. * * *'

Section 6307-19, General Code, effective September 6, 1941, which, in effect, repealed Section 6296-30, General Code provided:

'(a) No person who is under the influence of intoxicating liquor or narcotic drugs, or opiates shall operate or be in actual physical control of any vehicle, street car or trackless trolley within this state.'

In this statute the words 'or be in actual physical control of any vehicle' have been added.

Section 4511.19, Revised Code, effective October 21, 1953, provides:

'No person who is under the influence of intoxicating liquor, narcotic drugs, or opiates shall operate any vehicle, streetcar, or trackless trolley within this state.'

The words 'or be in actual physical control of any vehicle' have been eliminated.

The case of State v. Wilgus (1945), 31 O.O. 443, attempts an analysis of the statute. On page 446 of the opinion, after discussion of the old and the new sections of the Code, Judge Copeland says:

'It is a well settled principal of law that when an existing statute is repealed, and a new and different statute upon the same subject is enacted, it is presumed that the Legislature intended to change the effect and operation of the law.

"When an existing statute is repealed and a new and different statute upon the same subject is enacted, it is presumed that the Legislature intended to change the effect and operation of the law to the extent of the change in the language thereof.' County Bd. of Education (of Hancock County) v. Boehm, 102 Ohio St. 292 (131 N.E. 812).

'The effect and operation of the law as changed is obvious:-it was changed to provide a penalty against one who is the sole occupant of an automobile, upon a public highway for two hours sitting behind the steering wheel with his feet on the pedals, the motor running, with hands, arms, head and shoulders slouched over the steering wheel, sound asleep and intoxicated.

'The Legislature must have had the instant case in mind when it enacted Section No. 6307-19 on September 6, 1941.'

In City of Toledo v. Best, 172 Ohio St. 371, 176 N.E.2d 520, in comparing a city ordinance with Section 4511.19, Revised Code, the court has this to say:

'In the Recodification Act of 1953, Section 6307-19(a), General Code, became Section 4511.19, Revised Code, and Section 6307-19(b), General Code, became Section 4511.19(B), Revised Code, without any substantial change.

'However, effective October 21, 1953 (125 Ohio Laws, 461), Section 4511.19, Revised Code, was amended to delete physical control as a possible statutory offense. * * *'

I have quoted from these sections of Ohio codes, and portions of legal opinions to point out the fact that on at least three occasions the Ohio Legislature has acted on statutes dealing with operating a motor vehicle while under the influence of alcohol. As will be noted, the 1936 statute made no mention of 'being in physical control.' The 1941 statute added the words, 'being in actual physical control,' thus broadening the coverage of the statute to include persons found sitting behind the wheel of a stationary automobile, and under the influence of alcohol. Section 4511.19, Revised Code, the present law and the one under which the defendant is charged, does not contain that portion, 'being in actual physical control.' It was eliminated from the statute by our lawmakers.

If the defendant was found operating a motor vehicle, a misdemeanor, in the presence of the arresting officer, the arrest would be legal. If, on the other hand, the defendant was not operating a motor vehicle in the presence of the arresting officer, the arrest would be illegal and defendant's motion to suppress the evidence, should be sustained.

Before leaving this phase of this case, let us examine some cases holding a contrary view. State v. Hatfield, 1 Ohio App.2d 346, 204 N.E.2d 574, the court held that if a person is found in his automobile in a state of intoxication he is therefore found violating a law of the state or an ordinance of a city and regardless of what charge, if any, is afterwards placed against the defendant, the arrest is legal.

In City of Mentor v. Giordano, 9 Ohio St.2d 140, 224 N.E.2d 343, 344, in an opinion filled with generalities, the court indicates that under some circumstances an intoxicated person sitting in a stationary automobile may be guilty of operating under the influence. We quote the second and third paragraphs of the syllabus:

'2. Penal statutes and ordinances are to be interpreted and applied strictly against the accuser and liberally in favor of the accused, and where the accused is charged under a statute or ordinance with operating a motor vehicle...