Opinion
No. 76269.
Date of Announcement of Decision December 9, 1999.
CHARACTER OF PROCEEDING: Criminal appeal from Rocky River Municipal Court, Case No. 98-TRC-7531.
JUDGMENT: AFFIRMED.
APPEARANCES:
GARY A. HOTZ, City of Bay Village Prosecutor, For Plaintiff-Appellee.
KENNETH A. BOSSIN, ROBERT J. WILLIS, Petronzio, Schneier Willis. For Defendant-Appellant.
OPINION
Richard Attewell appeals a judgment of the Rocky River Municipal Court which found him guilty of operating a vehicle while under the influence of alcohol. Attewell complains on appeal that the court erroneously determined he "operated" his vehicle at the time of his arrest.
After reviewing the controlling legal precedents in this area, we are constrained to affirm the judgment of the trial court.
The parties here stipulated the facts of the case which reveal that on July 26, 1998, Attewell parked his 1986 Toyota truck at the Linden Lounge on Detroit Road in Rocky River, Ohio, and remained there from approximately 2 p.m. until 6 p.m. At that time, he and Kevin Elginski drove to the Village, another bar located on Madison Avenue in Lakewood, Ohio, but later returned to the Linden Lounge at 10:30 p.m. and drank there until 2:00 a.m. Because Attewell did not feel sober enough to walk four blocks to his house, he entered his truck, turned on the engine to listen to the radio, and fell asleep. At 2:25 a.m., Patrolman Lichman of the Rocky River Police Department discovered Attewell asleep in the front seat of his truck with the driver's door open and the engine running. The officer noticed a strong odor of alcohol, awakened Attewell, administered field sobriety tests to him, and then arrested him for driving under the influence of alcohol. The parties further stipulated that at no time did Attewell drive any vehicle with alcohol in his system.
Thereafter, the case proceeded to a bench trial on November 16, 1998, and the court returned a guilty verdict from which Attewell now appeals and assigns one error for our review. It states:
THE TRIAL COURT ERRED IN FINDING THAT APPELLANT'S CONDUCT CONSTITUTED "OPERATION OF A MOTOR VEHICLE".
Attewell argues that because the parties stipulated he did not drive any motor vehicle and that he had no intention of driving his truck after consuming alcohol, the court erroneously determined he had operated his motor vehicle under the influence of alcohol. The city maintains the trial court followed the law as articulated by the Ohio Supreme Court and correctly determined Attewell's guilt beyond a reasonable doubt. The issue then concerns whether Attewell's conduct constituted operating a motor vehicle within the meaning of that term as it is used in R.C. 4511.19 (A).
Here, the city charged Attewell with violating R.C. 333.01 (a) (1) which is substantially similar to R.C. 4511.19 (A) The pertinent provisions of that ordinance read as follows:
(a) No person shall operate any vehicle, streetcar, or trackless trolley within this State if any of the following apply:
(1) The person is under the influence of alcohol or any drug of abuse, or the combined influence of alcohol and any drug of abuse.
Because of the glaring similarity to R.C. 4511.19 (A), cases which have interpreted that code section are instructive on our interpretation of this ordinance. In State v. Cleary (1986), 22 Ohio St.3d 198, the court held in its 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).
More recently, the court held in State v. Gill (1994), 70 Ohio St.3d 150, in its syllabus:
A person who is in the driver's seat of a motor vehicle with the ignition key in the ignition and who, in his or her body has a prohibited concentration of alcohol, is "operating" the vehicle within the meaning of R.C. 4511.19 whether or not the engine of the vehicle is running. ( State v. Cleary [1986], 22 Ohio St.3d 198, * * *; State v. McGlorie [1991], 59 Ohio St.3d 122, * * * applied and followed.)
Further in Smith v. Klem (1983), 6 Ohio St.3d 16, 18, we recognize the principle of law clearly enunciated for all inferior courts in Ohio:
It is axiomatic that the syllabus of an opinion issued by the Supreme Court of Ohio states the law of the case, and, as such, all lower courts in this state are bound to adhere to the principles set forth therein.
In this case, the record reflects that Patrolman Lichman found Attewell sleeping in his truck with a blood alcohol level in excess of the legal limit, with a key in the ignition, and the motor running.
Based on this evidence, the trial court determined Attewell operated the vehicle within the meaning of the ordinance.
Our review of the record here and our obligation to adhere to the principles set for in Cleary, Gill, and McGlone constrain us to affirm the judgment of the trial court. Accordingly, we overrule this assignment of error and affirm the decision of the Rocky River Municipal Court.
Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Rocky River Municipal Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
LEO M. SPELLACY, J., CONCURS; PATRICIA A BLACKMON, J., DISSENTS (See Dissenting Opinion attached)
____________________________________ PRESIDING JUDGE TERRENCE O'DONNELL
Today, I voice my dissent with the Majority knowing full well its obligation to adhere to the law as interpreted by the Ohio Supreme Court. However, we truly missed a golden opportunity to call to the attention of the Ohio Supreme Court the due process violation that occurs when State v. Gill (1994), 70 Ohio St.3d 150, certiorari denied, sub nom. Robinson v. City of Sylvania, Ohio (1995), 514 U.S. 1023, 131 L.Ed.2d 227, 115 S.Ct. 1371, is applied to cases like this one.
In Gill, the Ohio Supreme Court without reservation held as a matter of law that a person with a prohibitive content of alcohol in his body is operating a vehicle under the drunk driving laws of this state when he is seated in his motor vehicle with the ignition key in the ignition. Under the Gill standard, the totality of the circumstances surrounding the case would be irrelevant when a person is seated in a car with the key in the ignition. Gill in fact creates an irrebuttable presumption of drunk driving when the key is in the ignition.
Justice Pfeifer in his dissent in Gill called for a reevaluation of this rigid legal conclusion. He urged that at all times the Ohio Supreme Court intended the presumption to be rebuttable. A rebuttable presumption would give the fact-finder an opportunity to weigh the driver's explanation. The fact-finder could determine whether the driver operated the vehicle or not by looking to the following factors: was the driver asleep or awake at the time the officer observed him or her; where was the vehicle located; and how did it get to that location. The fact-finder could also determine whether the driver was sober at the point of arrival, later became inebriated, and entered the vehicle to sleep off his alcohol-induced state.
For example, a driver could have arrived at a party sober, the first act of driving, and found himself too drunk to drive and merely entered the vehicle to sleep it off, but turned on the ignition for heat. This being the case, the jury could weigh the credibility of this kind of explanation and could find that the driver has rebutted the presumption of operating. In any event, it would be a question for the fact-finder.
Justice Pfeifer urges that the long winding road since State v. Cleary (1986), 22 Ohio St.3d 198 has caused a distortion of Cleary's intent. The Cleary Supreme Court said a person with the ignition in the key may be found guilty. Consequently, the issue is one of intent for the fact-finder to resolve.
Sometimes, irrebuttable presumptions carved into statutory construction may have an offensive effect on the due process standard. Due process not only is a question of notice, but inherent in it is a question of access to the court. An irrebuttable presumption by its very nature forecloses access to the court and denies altogether the right to be heard.
Besides, we should be encouraging drunk drivers to sleep off their drunkenness and not drive. Here, Attenwell sought to sleep off his drunkenness. I agree with Justice Pfeifer that the legislature intended to punish drunk drivers not drunk radio listeners or drunks in need of heat from their cars.
I would reverse the trial court's decision with the hope that the Ohio Supreme Court would not have spun retribution on my failing to follow Gill; instead, I would hope that it would have shown gratitude for a fresh approach because Gill was not followed.