Opinion
No. 92 CVH 617.
Decided October 2, 1992.
James M. Gatskie, for petitioner.
Brian J. Zwaig, for respondent.
Findings of Fact
This case comes before this court after an objection to the traffic referee's report.
Petitioner, Richard D. Williams, was charged with driving under the influence of alcohol pursuant to R.C. 4511.19. In the DUI proceeding, Judge Carla Moore held that the petitioner had been stopped without probable cause; therefore, she dismissed the charges. The stated basis for the stop was that the car, which had violated no traffic laws, seemed to be traveling in an "illogical manner."
Because the petitioner refused to submit to a chemical test to determine his blood-alcohol level, his driver's license was suspended by the Registrar of Motor Vehicles as provided in Ohio's implied consent statute, R.C. 4511.191. The petitioner has asked this court to find error in the action of the registrar which would require his license to be reinstated.
The referee found that the operator's license suspension was not valid because the initial stop was improper and that all evidence after the invalid stop, including petitioner's refusal, cannot be considered under the exclusionary rule as "fruit of the poisonous tree."
The state of Ohio objected to the referee's report, arguing that the exclusionary rule does not apply to civil proceedings and that Williams' constitutional rights are protected by the legislature's requirement that the officer must have "reasonable grounds" to believe the driver was under the influence of alcohol in order to request chemical testing.
Conclusions of Law
Petitioner asserts that in the absence of probable cause to stop him, the state is prohibited from using his refusal against him to suspend his license. However, the referee correctly held that the court's finding of no probable cause in the DUI charge was not res judicata as to the issue and that the finding did not collaterally estop further consideration of the consequences of the refusal.
Res judicata is a legal doctrine which precludes further action on a claim if a final judgment or decree has been previously rendered on that claim in a prior action among the same parties or those in privity with the parties. Johnson's Island v. Bd. of Twp. Trustees (1982), 69 Ohio St.2d 241, 243, 23 O.O.3d 243, 244, 431 N.E.2d 672, 674.
Collateral estoppel precludes further action on an identical issue which has actually and necessarily been litigated as part of a prior action among the same parties or those in privity with them. Goodson v. McDonough Power Equip., Inc. (1983), 2 Ohio St.3d 193, 2 OBR 732, 443 N.E.2d 978.
Neither doctrine applies; the DUI case was between the petitioner and the city of Akron, while this case involves the state of Ohio. The issue in the DUI case was one of "probable cause," while here the issue is "reasonable grounds." Further, this is a civil matter with a lower burden of proof.
The essential question instanter was properly posed by the referee: Does an illegal stop prohibit suspension of a driver's license for failure to submit to chemical testing? For reasons which are slightly different from the referee's, the court answers yes.
This is a case of first impression in Ohio. However, a similar issue was considered in State v. Taylor (1981), 3 Ohio App.3d 197, 3 OBR 224, 444 N.E.2d 481. Taylor stands for the proposition that, in the absence of probable cause to arrest, a law enforcement officer has no authority to require a defendant to elect between the alternatives presented by R.C. 4511.191, viz., undertake the incriminating tests or suffer a six-month's driving suspension. Id. at 198, 3 OBR at 225, 444 N.E.2d at 482. The Taylor court did not reach the actual issue in this case which concerns the validity of the license suspension for refusal to take a test which the officer had no authority to require.
While there are no Ohio cases on point, one court in Michigan has considered this issue. Gallagher v. Michigan (1975), 59 Mich. App. 269, 229 N.W.2d 410, is persuasive. There, the court interpreted an analogous statute and held that a valid arrest is an absolute condition precedent to the right of a law enforcement officer to request chemical testing. The court stated:
"We are acutely aware of what is at stake in this question of statutory construction. We have not the slightest inclination to dilute in the most minute degree the public purpose of apprehending and convicting intoxicated or impaired drivers * * *. We cannot conceive that the Legislature had the remotest intention * * * to mean that law enforcement officers can on what they alone consider `reasonable grounds' without any judicial restraint, supervision, or requirement of prior valid arrest, request a citizen to take a chemical test of bodily substances or suffer the grave penalty of license loss or suspension on refusal to comply." Id., 59 Mich.App. at 275-276, 229 N.W.2d at 413-414.
This court is also cognizant of the need to keep intoxicated drivers off the streets. Further, the court appreciates the legislative concerns underlying the statutory changes in Ohio law which produced the implied consent statute. However, the court does not believe that those rationales apply to these facts. The legislature did not change the DUI laws in such a way as to abrogate drivers' constitutional rights. Therefore, this court holds as a matter of law that a proper, constitutional stop must precede the request for chemical testing. Lack of a proper stop vitiates the right to request compliance with the implied consent statute.
Notwithstanding the argument that license suspension proceedings are civil and independent of any concomitant criminal proceedings, the court holds that a valid arrest, including a constitutional stop of petitioner, must take place before a refusal to permit chemical testing triggers a license suspension.
This holding differs from that of the referee who held that the refusal was "inadmissible" because of the illegal stop. Arguably, the exclusionary rule would apply for the policy reasons set out by the referee and adopted by this court. See, also, One 1958 Plymouth Sedan v. Pennsylvania (1965), 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170, applying the exclusionary rule to forfeiture cases which were deemed civil proceedings by the state courts, but which penalized one for commission of an offense. The loss of an operator's license for a period of time for refusal is a penalty arising from the commission of a separate offense. While the proceeding is a civil one, the ultimate consequence is more akin to a criminal sanction than a civil sanction. Thus, petitioner would be entitled to argue the exclusionary rule where appropriate.
In State v. Paglia (1979), 62 Ohio Misc. 7, 16 O.O.3d 228, 403 N.E.2d 1216, the court simultaneously considered the issues of "probable cause" to stop and "reasonable grounds" to believe petitioner was under the influence of alcohol. The court separately held that there was neither, holding that the question of "reasonable grounds" was subject to the same analysis as that of probable cause; the court did not distinguish between the two. If this court were forced beyond the issue of the illegal stop, it would nonetheless find that the officer, on the facts presented here, lacked reasonable grounds to require chemical tests from petitioner.
Ultimately, for the reasons stated herein, the court finds in favor of petitioner and orders that petitioner's operator's license not be suspended for refusal to submit to chemical testing.
So ordered.