Summary
In State v. McGlone (1991), 59 Ohio St.3d 122, the Supreme Court reiterated that "an intoxicated person who is in the driver's seat of a motor vehicle parked on private or public property with the key in the ignition is operating the vehicle in violation of R.C. 4511.19(A)(1)."
Summary of this case from State v. HowardOpinion
No. 90-525
Submitted February 6, 1991 —
Decided May 1, 1991.
Criminal law — Motor vehicles — Operating a motor vehicle while under the influence of alcohol — Intoxicated person in driver's seat of vehicle parked on private or public property with key in ignition is operating the vehicle — R.C. 4511.19(A)(1), construed.
O.Jur 3d Criminal Law § 2241.
An intoxicated person who is in the driver's seat of a motor vehicle parked on private or public property with the key in the ignition is operating the vehicle in violation of R.C. 4511.19(A)(1).
APPEAL from the Court of Appeals for Clermont County, Nos. CA89-05-032 and CA89-05-033.
At 1:31 a.m. on the morning of January 21, 1989, Judith Jones was awakened by the sound of gravel crunching in her driveway and the sound of a car motor running. She put her cat outside and looked out her bedroom window. Seeing nothing, she went back to bed and fell asleep.
At 3:30 a.m. that same morning, Mrs. Jones' husband, Timothy, was awakened by his alarm clock. As he prepared to go to work he, too, heard a car engine running. Mr. Jones looked out the front window and saw a car parked in his driveway. He picked up his flashlight and went outside to investigate. Mr. Jones saw the defendant, Allen R. McGlone, sitting behind the steering wheel of the parked car. McGlone was not awake and did not stir when Mr. Jones shined the flashlight on him. Consequently, Mr. Jones went inside and called the police.
Officer Vance Summerlin of the Clermont County Sheriff's Department was dispatched to the Joneses' home. Upon his arrival at approximately 4:30 a.m., Summerlin noted that McGlone, who was asleep behind the wheel, had left the motor running. Summerlin believed the car had been in the Joneses' driveway for a considerable length of time since no tire tracks were visible in the frost on the ground and a frozen puddle of urine was in the driveway outside the driver's side of the car.
When awakened by Summerlin, McGlone was very sweaty and drowsy. McGlone had no idea where he was nor did he recall how he had arrived in the Joneses' driveway. He was unable to produce any identification and did not know how long he had been there. As he emerged from the car, McGlone was a little wobbly and smelled of alcohol. McGlone performed poorly on field sobriety tests, so Summerlin took him to an Ohio State Highway Patrol station. A BAC verifier test was administered to McGlone at 5:20 a.m. and resulted in a reading of .139.
McGlone was arrested and charged with operating a motor vehicle while intoxicated in violation of R.C. 4511.19(A)(1) and (3). R.C. 4511.19 (A)(1) and (3) provide: "No person shall operate any vehicle, streetcar, or trackless trolley within this state, if any of the following apply: The person is under the influence of alcohol, a drug of abuse, or alcohol and a drug of abuse; * * * The person has a concentration of ten-hundredths of one gram or more by weight of alcohol per two hundred ten liters of his breath[.]"
McGlone filed a motion to dismiss the charges against him, alleging that Summerlin lacked sufficient probable cause to arrest him, as he had not observed McGlone actually "operating" his car. The trial court granted McGlone's motion to dismiss.
A divided court of appeals affirmed the decision of the trial court. The court distinguished this case from State v. Cleary (1986), 22 Ohio St.3d 198, 22 OBR 351, 490 N.E.2d 574, in which we said in the syllabus:
"1. Operation of a motor vehicle within the contemplation of R.C. 4511.19(A) is a broader term than driving and a person in the driver's position in the front seat of the vehicle with the key in the ignition while under the influence of alcohol or any drug of abuse can be found in violation of the statute.
"2. 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 operation within the meaning of R.C. 4511.19(A)(1)."
In making the distinction, the appellate court held: " Cleary is distinguishable from the facts in the case at bar. Cleary entered his automobile while obviously intoxicated. It is entirely possible appellee [McGlone] entered his vehicle at a time when he was not yet under the influence of alcohol. It is also entirely possible that he had consumed enough alcohol before entering his vehicle that it `hit' him while he was driving home. If such occurred, he should not be penalized for getting off the highway. Finally, it is also possible that appellee simply became sleepy, pulled off the road, and then drank and became intoxicated." (Emphasis sic.)
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Donald W. White, prosecuting attorney, and David Henry Hoffmann, for appellant.
T. David Burgess, for appellee.
Whether McGlone was intoxicated before or after he entered his car is neither a necessary nor proper distinction when considering a violation of the drunken driving statutes. The focus of the inquiry is upon an individual's level of intoxication while operating the vehicle, not when or how such individual came to be in an intoxicated condition. Thus, in this case we are concerned with whether McGlone operated a motor vehicle while intoxicated in violation of R.C. 4511.19(A)(1) and (3).
This court has held previously that driving and operating a motor vehicle are not synonymous. We observed in Cleary, supra, at 199, 22 OBR at 352, 490 N.E.2d at 575, that: "Operation of a motor vehicle within contemplation of the statute is a broader term than mere driving and a person in the driver's position in the front seat with the ignition key in his possession indicating either his actual or potential movement of the vehicle while under the influence of alcohol * * * can be found in violation of R.C. 4511.19 (A)(1)."
McGlone was sitting in the driver's seat of his car with the motor running. The car was under his 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 appeals and consider him both reasonable and prudent because he drove from a public highway into the driveway of a private residence and fell asleep. We do not share the commendations given his conduct by a majority of the court of appeals.
R.C. 4511.19 is not only directed to those who drive on public streets. It prohibits the operation of a motor vehicle anywhere in the state while the driver is under the influence of drugs or alcohol. We agree with the dissent's observation in the court of appeals that: "If you are under the influence [of alcohol or drugs], don't drive or put yourself in a position of control of a vehicle. If you do, you pay the penalty." Had McGlone struck a car or a person in the driveway as a result of his intoxication, his conduct would have been no less reprehensible than if he had struck a person or another vehicle on the highway.
As we said in Cleary: "A person under the influence of alcohol or any drug of abuse behind the wheel of a motor vehicle is the obvious hazard at which the statute is directed whether the vehicle is stationary or in motion." Id. at 201, 22 OBR at 354, 490 N.E.2d at 577. We follow the rationale adopted in Cleary and hold that McGlone was operating his vehicle under the influence of alcohol in violation of R.C. 4511.19(A)(1) and (3), and that the trial court erred when it granted McGlone's motion to dismiss. We hold that an intoxicated person who is in the driver's seat of a motor vehicle parked on private or public property with the key in the ignition is operating the vehicle in violation of R.C. 4511.19(A)(1).
The judgment of the court of appeals is reversed and the cause is remanded to the trial court for further proceedings.
Judgment reversed and cause remanded.
SWEENEY, HOLMES, DOUGLAS, WRIGHT and RESNICK, JJ., concur.
H. BROWN, J., dissents.