Opinion
No. T-5100
Decided June 30, 1969.
Criminal law — Operating motor vehicle while intoxicated — Section 4511.19, Revised Code — "Operator" defined — Section 4511.01, Revised Code — Statutory construction — Repeal and re-enactment — Substantive change presumed intended — Arrest without warrant — Misdemeanors — Section 2935.03, Revised Code.
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 When an existing statute is repealed and a different statute on the same subject is at the same time enacted, it is to be presumed that the Legislature intended to change the effect and operation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.
Mr. J. Whitney Ake, city prosecutor, for plaintiff.
Mr. Louis H. Paar, for defendant.
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 received 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 Mentor v. Giordano, 9 Ohio St.2d 140, 145, 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, 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 (X) 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, after discussion of the old and the new sections of the Code, Judge Copeland says:
"It is a well settled principal [ sic] 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 v. Boehm, 102 Ohio St. 292.
"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 Toledo v. Best, 172 Ohio St. 371, 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, 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 Mentor v. Giordano, 9 Ohio St.2d 140, 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 while under the influence of intoxicating liquor — a misdemeanor — the burden rests upon the prosecution to prove every essential element of the offense beyond a reasonable doubt.
"3. Although a charge of operating a motor vehicle while under the influence of intoxicating liquor may apply where a stationary vehicle is involved, the evidence must show beyond a reasonable doubt that the accused was under the influence of intoxicating liquor while operating the vehicle in that condition."
However, before reaching any conclusions in this case, we must examine the statutes covering "arrest," along with the statutes dealing with, "under the influence."
Prior to December 13, 1967, Section 2935.03, Revised Code, provided:
"A sheriff, deputy sheriff, marshal, deputy marshal, watchman, or police officer shall arrest and detain a person found violating a law of this state, or an ordinance of a municipal corporation, until a warrant can be obtained.
"A constable within the limits of the township in which said constable has been appointed or elected, shall arrest and detain a person found by him in the commission of a misdemeanor, either in violation of a law of this state or an ordinance of a village, until a warrant can be obtained."
On December 13, 1967, this Section was amended, or broadened, and now provides:
"A sheriff, deputy sheriff, marshal, deputy marshal, or police officer shall arrest and detain a person found violating a law of this state, or an ordinance of a municipal corporation, until a warrant can be obtained.
"When there has been a violation or there is reasonable ground to believe there has been a violation of Sections 2901.25, 2907.20, 2909.12, Revised Code, insofar as it relates to shooting at trains, motor vehicles, or vessels, or Section 2923.01, Revised Code, or of any ordinance of a municipal corporation which substantially incorporates any offense contained in such chapters or section, a sheriff, deputy sheriff, marshal, deputy marshal, or police officer may arrest without a warrant any person whom he has reasonable cause to believe is guilty of the violation, and detain him until a warrant can be obtained.
"A constable within the limits of the township in which said constable has been appointed or elected, shall arrest and detain a person found by him in the commission of a misdemeanor, either in violation of a law of this state or an ordinance of a village, until a warrant can be obtained."
The existing statute gives an officer a right to arrest, "where there has been a violation or there is reasonable grounds to believe that there has been a violation," under certain sections of the Code. These sections do not include any motor vehicle statutes, and especially Section 4511.19, Revised Code, on operating under the influence.
In Columbus v. Herrell, 18 Ohio App.2d 149, decided May 13, 1969, first paragraph of the syllabus states:
"Although the common law authorized a police officer to make an arrest without a warrant for a misdemeanor only in cases where the violation was committed in his presence and involved a breach of the peace, while permitting an arrest for a felony when the officer believed on reasonable grounds that the person arrested had committed such felony, there is no constitutional inhibition against modification of such common-law rules by legislation, so long as the `probable cause' requirements of Section 14, Article I of the Ohio Constitution and of the Fourth Amendment of the United States Constitution are met."
And, at page 153, the court says:
"* * * It is clear from these cases that the requirement of `probable cause' for arrest is applicable to both misdemeanors and to felonies. Section 2935.03, Revised Code, as amended, requires `reasonable ground to believe' and `reasonable cause,' these terms being synonymous with the constitutional requirement of `probable cause.' So long as these constitutional requirements are met, and here there is no claim made that they were not, we think it clear that the Legislature may modify or even abandon the common-law distinctions between misdemeanors and felonies, so far as the power of arrest by a peace officer be concerned. For these reasons we conclude that Section 2935.03, Revised Code, as amended is constitutional."
It is quite clear from this case that the Legislature had a right to amend and broaden Section 2935.03, Revised Code, by giving the right to arrest without a warrant for certain offenses, on probable cause or reasonable grounds to believe that certain misdemeanors had been committed. However, as late as 1967, two years ago, this arrest statute was so amended and broadened, but not to include motor vehicle violations.
Had the Supreme Court in the Giordano case, supra, made a definite statement of the law or laid down definite rules and guidelines, this court would not hesitate to follow such ruling. These things we do not find in that case.
Although we are not necessarily bound by decisions of Appellate Courts beyond our jurisdiction, I have read with interest the decision and reasoning in the Hatfield case, supra. This decision would have been more impressive if the defendant had been charged with being drunk, and later the charge of operating under the influence added.
Recently at a conference of judges and prosecutors it was recommended that in cases where a person was found behind the wheel of an automobile, in an intoxicated condition, and there was evidence that said person had been operating said motor vehicle, that he or she be charged with being intoxicated and later any other provable charge could be added.
This court is of the opinion that to make an arrest for a misdemeanor legal the arresting officer must charge the arrested person with an offense committed in his presence.
Courts are criticized for making laws rather than interpreting the law, and in cases where the existing law is interpreted a great deal of reliance is placed on the intent of the Legislature.
In this case two statutes necessarily control the court's decision. As hereinabove pointed out, the so-called driving drunk statute has been considered by the Legislature on three separate occasions. In its inception, "being in physical control of a vehicle," was not made a part thereof. This statute was repealed and a new statute enacted which broadened its coverage by incorporating, "being in physical control of a vehicle." The latest and present statute eliminated the words, "being in physical control of a vehicle."
If the lawmakers saw fit to exclude these words, why should a court say to the contrary?
For many years the so-called arrest statute definitely stated under what circumstances an officer might arrest a person without a warrant for a misdemeanor. Not until 1967 did our lawmakers see fit to change and broaden this statute. While so considering and extending its coverage, they still did not see fit to make any mention of and include motor vehicle violations.
Why should a court read into a statute and broaden its coverage to include a well known offense, when the Legislature failed so to do? Or, to define a word different from its ordinary and accustomed meaning?
The motion of the defendant to suppress the evidence is sustained.
Motion sustained.