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holding that where statutory language "is plain and unambiguous and conveys a clear and definite meaning, there is no need to apply rules of statutory interpretation."
Summary of this case from Hughes v. WhiteOpinion
No. 90-1331
Submitted April 10, 1991 —
Decided July 10, 1991.
CERTIFIED by the Court of Appeals for Fulton County, No. 89FU000010.
Ronald D. Cline, appellant herein, was arrested November 20, 1988, at approximately 3:30 a.m. by Ohio State Highway Patrol Trooper Gregory A. Rayot and charged with operating a vehicle while under the influence of alcohol. Rayot requested that appellant submit to a chemical test for determining the alcoholic content of his breath, as provided in former R.C. 4511.191. The appellant refused. Appellant was advised of the consequences of his refusal at the Montpelier Police Department. The Registrar of Motor Vehicles advised appellant that his driver's license would be suspended for one year. Appellant filed a petition to revoke or modify the order of suspension.
R.C. 4511.191, effective October 20, 1987, provided, in part:
"(A) Any person who operates a vehicle upon the public highways within this state shall be deemed to have given consent to a chemical test or tests of his blood, breath, or urine, for the purpose of determining the alcohol, drug, or alcohol and drug content of his blood, breath, or urine if arrested for operating a vehicle while under the influence of alcohol, a drug of abuse, or alcohol and a drug of abuse or for operating a vehicle with a prohibited concentration of alcohol in the blood, breath, or urine. The chemical test or tests shall be administered at the request of a police officer having reasonable grounds to believe the person to have been operating a vehicle upon the public highways in this state while under the influence of alcohol, a drug of abuse, or alcohol and a drug of abuse or with a prohibited concentration of alcohol in the blood, breath, or urine. The law enforcement agency by which the officer is employed shall designate which of the tests shall be administered.
"* * *
station, or at a hospital, first-aid station, or clinic to which the person has been taken for first-aid or medical treatment, of the consequences of his refusal to submit upon request to a chemical test designated by the law enforcement agency as provided in division (A) of this section. The advice shall be in a written form prescribed by the registrar of motor vehicles and shall be read to the person. The form shall contain a statement that the form was shown to the person under arrest and read to him in the presence of the arresting officer and either another police officer, civilian police employee, or an employee of a hospital, first-aid station, or clinic, if any, to which the person has been taken for first-aid or medical treatment. The witnesses shall certify to this fact by signing the form.
"The arresting officer shall verify the current residence of any person under arrest pursuant to this section. If the current residence differs from that on the person's operator's or chauffeur's license or permit, the officer shall notify the registrar of motor vehicles of the change.
"(D) If a person under arrest for operating a vehicle while under the influence of alcohol, a drug of abuse, or alcohol and a drug of abuse or for operating a vehicle with a prohibited concentration of alcohol in the blood, breath, or urine refuses upon the request of a police officer to submit to a chemical test designated by the law enforcement agency as provided in division (A) of this section, after first having been advised of the consequences of his refusal as provided in division (C) of this section, no chemical test shall be given, but the registrar of motor vehicles, upon the receipt of a sworn report of the police officer that he had reasonable grounds to believe the arrested person had been operating a vehicle upon the public highways within this state while under the influence of alcohol, a drug of abuse, or alcohol and a drug of abuse or with a prohibited concentration of alcohol in the blood, breath, or urine and that the person refused to submit to the chemical test upon the request of the police officer and upon the receipt of the form as provided in division (C) of this section certifying that the arresting person was advised of the consequences of his refusal, shall suspend his operator's or chauffeur's license or permit, or any nonresident operating privilege for a period of one year, subject to review as provided in this section; or if the person is a resident without a license or permit to operate a vehicle within this state, the registrar shall deny to the person the issuance of an operator's or chauffeur's license or permit for a period of one year after the date of the alleged violation. The suspension or denial shall continue for the entire one-year period subject to review as provided in this section and subject to termination as provided in division (I) of this section.
"(E) Upon suspending the operator's or chauffeur's license or permit or nonresident operating privilege of any person, as provided in division (D) of this section, the registrar shall immediately notify the person in writing, at his last known address, and inform him that he may petition for a hearing as provided in division (F) of this section. If a person whose operator's or chauffeur's license, or permit or nonresident operating privilege has been suspended, petitions for a hearing or appeals any decision that is adverse to him, the suspension shall begin at the termination of any hearing or appeal unless the hearing or appeal resulted in a decision favorable to the person.
"If the results of a chemical test administered pursuant to this section indicate that the blood of the arrested person contained a concentration of ten-hundredths of one percent or more by weight of alcohol, a concentration of ten-hundredths of one gram or more by weight of alcohol per two hundred ten liters of his breath, or a concentration of fourteen-hundredths of one gram or more by weight of alcohol per one hundred milliliters of his urine at the time of the alleged offense, or if the person refused to submit upon request to a chemical test, the arresting law enforcement officer shall seize the Ohio or out-of-state operator's or chauffeur's license or permit of the arrested person and immediately forward it to the court in which the arrested person is to appear.
"If the arrested person fails to surrender his operator's or chauffeur's license or permit because he does not have it on his person or in his vehicle, the arresting law enforcement officer shall order him to surrender it within twenty-four hours. If the person fails to do so, the law enforcement officer shall notify the court in which the arrested person is scheduled to appear of that fact.
"(F) Any person whose operator's or chauffeur's license or permit or nonresident operating privilege has been suspended pursuant to 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, or if the person is a minor in the juvenile court, in whose juvenile court, in whose jurisdiction the person resides or in whose jurisdiction the arrest occurred if the person is not a resident of this state, agreeing to pay the cost of the proceedings and alleging error in the action taken by the registrar of motor vehicles under division (D) of this section or alleging one or more of the matters within the scope of the hearing as provided in this section, or both. Such petitioner shall notify the registrar of the filing of the petition and send him a copy of the petition.
"The scope of the hearing is limited to the issues of whether the law enforcement officer had reasonable ground to believe the petitioner was operating a vehicle upon the public highways within this state while under the influence of alcohol, a drug of abuse, or alcohol and a drug of abuse or with a prohibited concentration of alcohol in the blood, breath, or urine, whether the petitioner was placed under arrest, whether the petitioner refused to submit to the chemical test upon request of the officer, and, if the petitioner refused, whether he was advised of the consequences of his refusal.
"(G)(1) The registrar shall furnish the court a copy of the registrar's affidavit as provided in division (C) of this section and any other relevant information required by the court.
"(2) In hearing the matter and in determining whether the person has shown error in the action taken by the registrar under division (D) of this section, the court shall decide the issue upon any relevant, competent, and material evidence that either the registrar or the person whose operator's or chauffeur's license or permit has been suspended submits."
A hearing was held in the Fulton County Court, Eastern District, and the court upheld the Registrar's order of suspension and denied appellant's motion for a new trial. Upon appeal, the appellate court affirmed the trial court's judgment, holding that in determining the reasonableness of a licensee's refusal to submit to a chemical test on the grounds that more than two hours had passed since the alleged violation, the court must look to whether the arresting officer had reasonable grounds to believe the licensee had been operating a motor vehicle while under the influence of alcohol based on the licensee's condition and behavior at the time of the arrest.
Finding its judgment to be in conflict with the judgments of the Court of Appeals for Franklin County in Brownfield v. McCullion (1984), 20 Ohio App.3d 197, 20 OBR 242, 485 N.E.2d 745, and Barber v. Curry (1974), 40 Ohio App.2d 346, 69 O.O.2d 312, 319 N.E.2d 367, the court of appeals certified the record of this case to this court for review and final determination.
Plassman, Rupp, Hensal Short and Peter D. Short, for appellant. William R. Swigart, prosecuting attorney, and Roger D. Nagel, for appellee.
The case before us raises questions with respect to the Ohio implied consent statute, former R.C. 4511.191. The issue presented is whether a licensee is subject to license suspension when he refuses to submit to a breathalyzer test on the grounds that the request was made more than two hours after he operated a vehicle while under the influence of alcohol on a public highway.
Appellant bases his refusal of the officer's request to submit to a chemical test upon the following statutory provision which reads, in relevant part:
"In any criminal prosecution for a violation of this section, of a municipal ordinance relating to operating a vehicle while under the influence of alcohol, a drug of abuse, or alcohol and a drug of abuse, or of a municipal ordinance relating to operating a vehicle with a prohibited concentration of alcohol in the blood, breath, or urine, the court may admit evidence on the concentration of alcohol, drugs of abuse, or alcohol and drugs of abuse in the defendant's blood, breath, urine, or other bodily substance at the time of the alleged violation as shown by chemical analysis of the defendant's blood, urine, breath, or other bodily substance withdrawn within two hours of the time of the alleged violation." (Emphasis added.) Former R.C. 4511.19(B), effective March 20, 1987, now R.C. 4511.19(D).
Appellant asserts that the two-hour period creates a rule which precludes the state from requesting that a person arrested for operating a vehicle while under the influence of alcohol submit to a chemical test or tests. The state argues that the two-hour provision must be read in context and limited to the subject of the section which relates to the admissibility of evidence in criminal proceedings.
Where the language of a statute is plain and unambiguous and conveys a clear and definite meaning, there is no need to apply rules of statutory interpretation. Meeks v. Papadopulos (1980), 62 Ohio St.2d 187, 190, 16 O.O.3d 212, 213, 404 N.E.2d 159, 161, citing Sears v. Weimer (1944), 143 Ohio St. 312, 28 O.O. 270, 55 N.E.2d 413, paragraph five of the syllabus. However, where a statute is found to be subject to various interpretations, a court called upon to interpret its provisions may invoke rules of statutory construction in order to arrive at legislative intent. Meeks, supra, 62 Ohio St.2d at 190, 16 O.O.3d at 214, 404 N.E.2d at 162; Henry v. Central Natl. Bank (1968), 16 Ohio St.2d 16, 45 O.O.2d 262, 242 N.E.2d 342; Carter v. Youngstown (1946), 146 Ohio St. 203, 32 O.O. 184, 65 N.E.2d 63; Commercial Credit Co. v. Schreyer (1929), 120 Ohio St. 568, 166 N.E. 808. The conflict among the appellate courts indicates strongly that the relationship, if any, between R.C. 4511.191 and 4511.19 is ambiguous.
The primary rule in statutory construction is to give effect to the legislature's intention. Carter, supra, at paragraph one of the syllabus. To ascertain the legislative intent, courts rely upon ordinary principles of statutory construction. Stewart v. Trumbull Cty. Bd. of Elections (1973), 34 Ohio St.2d 129, 130, 63 O.O.2d 227, 227-228, 296 N.E.2d 676, 677.
Former R.C. 4511.19(B) and the implied consent statute were enacted in 1968 under Am.Sub. H.B. No. 380 for the purpose of improving the state highway program. (132 Ohio Laws, Part II, 2611.) Although the General Assembly enacted these statutory provisions at the same time and for the same general purpose, our analysis is not complete. Legislative intent must be determined from the language of the statute itself, id.; State v. Singer (1977), 50 Ohio St.2d 103, 108, 4 O.O.3d 237, 240, 362 N.E.2d 1216, 1220, as well as from other matters, see R.C. 1.49. In determining intent, it is the duty of the court to give effect to the words used, not to delete words used or insert words not used. State, ex rel. General Elec. Supply Co., v. Jordano Elec. Co. (1990), 53 Ohio St.3d 66, 71, 558 N.E.2d 1173, 1177; State, ex rel. Sears, Roebuck Co., v. Indus. Comm. (1990), 52 Ohio St.3d 144, 148, 556 N.E.2d 467, 471; Columbus-Suburban Coach Lines v. Pub. Util. Comm. (1969), 20 Ohio St.2d 125, 127, 49 O.O.2d 445, 446, 254 N.E.2d 8, 9.
The General Assembly chose to address the methods of withdrawing and analyzing bodily substances submitted pursuant to the implied consent law in former R.C. 4511.19(B), which provided in pertinent part:
"When a person submits to a blood test at the request of a police officer under section 4511.191 of the Revised Code, only a physician, a registered nurse, or a qualified technician or chemist shall withdraw blood for the purpose of determining its alcohol, drug, or alcohol and drug content. This limitation does not apply to the taking of breath or urine specimens. A physician, a registered nurse, or a qualified technician or chemist may refuse to withdraw blood for the purpose of determining the alcohol, drug, or alcohol and drug content of the blood, if in his opinion the physical welfare of the person would be endangered by the withdrawing of blood.
"Such bodily substance shall be analyzed in accordance with methods approved by the director of health by an individual possessing a valid permit issued by the director of health pursuant to section 3701.143 of the Revised Code."
This section speaks to those elements which are considered important in determining the reliability of the result of the analysis. The legislature delegated rulemaking authority to the Department of Health to specify techniques for analysis and qualifications for those conducting the analysis. Neither the section nor rules promulgated under it address the outer time limit for giving the test. While the first paragraph of R.C. 4511.19(B) speaks to test results being withdrawn within two hours of the time of the alleged violation, it relates solely to the admissibility of such test results. The two-hour provision is a limitation upon the admissibility of evidence in criminal prosecutions.
R.C. 4511.191(A), the implied consent statute, effective October 20, 1987, provided:
"Any person who operates a vehicle upon the public highways within this state shall be deemed to have given consent to a chemical test or tests of his blood, breath, or urine, for the purpose of determining the alcohol, drug, or alcohol and drug content of his blood, breath, or urine if arrested for operating a vehicle while under the influence of alcohol, a drug of abuse, or alcohol and a drug of abuse or for operating a vehicle with a prohibited concentration of alcohol in the blood, breath, or urine. The chemical test or tests shall be administered at the request of a police officer having reasonable grounds to believe the person to have been operating a vehicle upon the public highways in this state while under the influence of alcohol, a drug of abuse, or alcohol and a drug of abuse or with a prohibited concentration of alcohol in the blood, breath, or urine. The law enforcement agency by which the officer is employed shall designate which of the tests shall be administered."
This section details the obligation of a person arrested for operating a vehicle while under the influence of alcohol, a drug of abuse, or alcohol and a drug of abuse or for operating a vehicle with a prohibited concentration of alcohol in the blood, breath, or urine. He must consent to the police officer's request to take the chemical test or tests in order to be in compliance with the statute. This section also details the obligation of a police officer. He must have reasonable grounds to believe the person was operating a vehicle upon the public highways while under the influence of alcohol, a drug of abuse, or alcohol and a drug of abuse or operating a vehicle with a prohibited concentration of alcohol in the blood, breath, or urine, when he requests that the person take a chemical test or tests. A fair reading of this section is that when police officers comply with the provisions of the section, individuals must do so as well in order to avoid the consequences of refusal.
This interpretation is harmonious with the chapter as a whole because it gives full effect to each statute in question. The two-hour limit retains its vitality as a carefully prescribed legislative decision upon evidentiary issues and does not limit the vitality of the implied consent law.
Moreover, it comports with case law construing R.C. 4511.19. In Newark v. Lucas (1988), 40 Ohio St.3d 100, 532 N.E.2d 130, this court analyzed the effect of the two-hour limit on evidence sought to be suppressed on the grounds that the bodily substance was withdrawn more than two hours from the time of the alleged violation. The court held that the results of a properly administered bodily substances test may not be admitted in evidence if withdrawn more than two hours from the time of the alleged violation in prosecutions under R.C. 4511.19(A)(2), (3) or (4). Id. at paragraph one of the syllabus. However, in prosecutions under R.C. 4511.19(A)(1), driving under the influence, the results may be admitted in evidence if presented with expert testimony. Id. at paragraph two of the syllabus. The fact that a bodily substance is withdrawn more than two hours after the time of the alleged violation does not, alone, diminish the probative value of the test results in a R.C. 4511.19(A)(1) prosecution. Id. at 104, 532 N.E.2d at 134. It logically follows that a request for chemical tests pursuant to the implied consent statute made after two hours from the time of the alleged violation is allowed since those tests results may be admitted into evidence in a prosecution for violation of R.C. 4511.19(A)(1).
Our holding that the two-hour provision does not preclude the state from requesting that a licensee submit to tests even though more than two hours have passed from the time of the alleged violation promotes the purpose of the implied consent statute. That purpose is to remove drivers from Ohio roadways who would insist on exercising driving privileges while under the influence of alcohol. Kettering v. Baker (1975), 42 Ohio St.2d 351, 355, 71 O.O.2d 322, 324, 328 N.E.2d 805, 807. The implied consent statute provides a clear remedy by suspending the licenses of those drivers who refuse to take a sobriety test and is separate from, independent of, and cumulative to a criminal prosecution. Andrews v. Turner (1977), 52 Ohio St.2d 31, 35-36, 6 O.O.3d 149, 151, 368 N.E.2d 1253, 1256. It is designed to discourage any person from refusing to take the tests when he is arrested for driving while under the influence.
We hold that a person arrested for operating a vehicle under the influence of alcohol who refuses to submit to a chemical test, even though the test is requested more than two hours after the alleged violation, is subject to the implied consent law if the police officer making the request has "reasonable grounds to believe the person to have been operating a vehicle upon the public highways in this state while under the influence of alcohol." (Former R.C. 4511.191[A].)
We next consider whether the trial court's finding that Trooper Rayot had reasonable grounds to believe appellant was driving under the influence of alcohol on a public highway is against the manifest weight of the evidence. Although Rayot observed appellant under the influence of alcohol while sitting behind the steering wheel of a vehicle with the engine running in a private field, appellant contends that Rayot could not determine that he had driven while under the influence of alcohol on the public highway since Rayot did not know how long appellant had been in the field.
Pursuant to former R.C. 4511.191(F), as in effect October 20, 1987, the scope of the hearing to determine whether a driver's license shall be suspended is limited to consideration of four issues:
"[1] whether the law enforcement officer had reasonable ground to believe the petitioner was operating a vehicle upon the public highways within this state while under the influence of alcohol * * *;
"[2] whether the petitioner was placed under arrest;
"[3] whether the petitioner refused to submit to the chemical test upon the request of the officer; and
"[4] if the petitioner refused, whether he was advised of the consequences of his refusal."
A suspension will be upheld if the court finds that the petitioner had failed to show error in the action taken by the Registrar, or in one or more matters within the scope of the hearing. Hoban v. Rice (1971), 25 Ohio St.2d 111, 115-116, 45 O.O.2d 254, 256, 267 N.E.2d 311, 314. The burden is on the petitioner to prove by a preponderance of the evidence that there was error. Id. at 116, 54 O.O.2d at 256, 267 N.E.2d at 314-315. Andrews, supra, paragraph two of the syllabus.
At the suspension hearing, Rayot testified that he received a report of a vehicle in a ditch on County Road M-50, found the vehicle in a ditch approximately five feet off the edge of the road with its engine running, and saw the appellant sleeping behind the steering wheel. Rayot testified that appellant did not respond to his knocks on the vehicle window, so he opened the door and nudged the appellant until he awoke. Rayot testified that appellant admitted to being the driver of the vehicle. Rayot observed that appellant had a strong odor of alcohol on his breath, and slurred speech. There was no evidence adduced that appellant imbibed after the accident. Evidence was adduced to the contrary that appellant had nothing to drink after the vehicle went into the ditch.
A thorough review of the record convinces us that the court could find that Rayot had reasonable grounds to believe appellant had been operating a vehicle while under the influence of alcohol on a public highway. We find that the appellant failed to show error.
For the foregoing reasons, the judgment of the court of appeals is affirmed.
Judgment affirmed.
MOYER, C.J., SWEENEY, HOLMES, DOUGLAS and H. BROWN, JJ., concur.
WRIGHT, J., concurs in the syllabus and judgment only.
MARY CACIOPPO, J., of the Ninth Appellate District, sitting for RESNICK, J.