City of Bryan v. Hudson
674 N.E.2d 678
Ohio
1997
Check Treatment
Lundberg Stratton, J.

The issue certified to this court is whether, for purposes of establishing a valid consent or refusal to take a breath-alcohol-concentration test in the context of reviewing an administrative license suspension pursuant to R.C. 4511.191, the statutory notice provision contained in R.C. 4511.191(C) is satisfied by a showing that the officer read to the arrestee the language of R.C. 4511.191(C)(2)(b) as set forth on the top portion of BMV Form 2255. We hold that it is. Therefore, we affirm the court of appeals and hold that for purposes of establishing a valid consent or refusal to take a breath-alcohol-concentration test in the context of an administrative license suspension pursuant to R.C. 4511.191, the notice requirement of R.C. 4511.191(C) is satisfied by reading to the arrestee the language of R.C. 4511.191(C)(2)(b) as set forth on the top portion of BMV Form 2255.

Under R.C. 4511.191(C)(1), any person arrested “for operating a vehicle while under the influence of alcohol” shall be advised, pursuant to R.C. 4511.191(E) and (F), of the consequences of his refusal to submit upon request to a chemical test and of the consequences of his submission to the test “if he is found to have a prohibited concentration of alcohol in the blood, breath, or urine.”

R.C. 4511.191(C) states further:

“(2)(a) The advice given pursuant to division (C)(1) of this section shall be in a written form containing the information described in division (C)(2)(b) of this section and shall be read to the person. * * *

“(b) The form required by division (C)(2)(a) of this section shall read as follows:

“ You now are under arrest for operating a vehicle while under the influence of alcohol, a drug of abuse, or both alcohol and a drug of abuse and will be requested by a police officer to submit to a chemical test to determine the concentration of alcohol, drugs of abuse, or alcohol and drugs of abuse in your blood, breath, or urine.

“ ‘If you refuse to submit to the requested test or if you submit to the requested test and are found to have a prohibited concentration of alcohol in your blood, breath, or urine, your driver’s or commercial driver’s license or permit or nonresident operating privilege immediately will be suspended for the period of time specified by law by the officer, on behalf of the registrar of motor vehicles. * * * ’ ” (Emphasis added.)

The appellant urged both the lower courts and this court to conclude that the arresting officer must specify the exact period of a potential suspension that applies individually to each arrestee and not merely read to the arrestee the language of R.C. 4511.191(C)(2)(b) as set forth on the top portion of BMV Form 2255 before a valid consent or refusal to take the chemical test is established. Both courts rejected this contention. However, in Columbus v. Ocker (1994), 97 Ohio App.3d 596, 647 N.E.2d 205, the Franklin County Court of Appeals interpreted the phrase “by the officer” to modify the preceding phrase “as specified by law,” thereby requiring the arresting officer to make an individualized determination of the prospective penalties pursuant to R.C. 4511.191(E) and (F) and accordingly advise the arrestee “as to the consequences of refusing to submit to the chemical test designated and the consequences of taking the test revealing a prohibited concentration of alcohol.” Id. at 600, 647 N.E.2d at 207.

Further, in State v. Given (Dec. 23, 1994), Portage App. No. 94-P-0012, unreported, 1994 WL 738492, the Portage County Court of Appeals reached the same conclusion as the Franklin County Court of Appeals. The court concluded that the provisions of R.C. 4511.191(C), construed together, require the arresting officer “to read and advise the offender as to the potential lengths of suspension relating to his refusal to take a chemical test or if the offender submits to a chemical test which reports a prohibited alcohol concentration level.” The Given court held that “[t]he plain language of R.C. 4511.191(C)(1) indicates that the term ‘consequences’ requires more than a warning that the offender’s license may be suspended. It also requires information specified in R.C. 4511.191(E) and (F), which relate to the potential lengths of suspension.”

The court of appeals observed that to allow such an interpretation as proposed by the Ocker and Given courts would be “to impose a requirement upon police officers that is so wholly impractical that it could not reasonably have been intended by the legislature in its drafting of the statute.” We agree, and in analyzing the construction of R.C. 4511.191, we believe that the interpretation urged by the appellant is not what the legislature intended.

There are so many factors to be considered by a police officer that it would be difficult even to begin to try to make an assessment — factors such as accurate prior arrest or conviction history, prior refusals or consents, lack of a driver’s license, municipal violations, etc. See R.C. 4511.191(E) and (F). These convoluted, detailed requirements are almost impossible to assess accurately in the arrest setting and, we believe, were intended by the legislature to be determinations made by a court at the time of the ALS hearing.

A court must give effect to all words of the statute. State v. Moaning (1996), 76 Ohio St.3d 126, 128, 666 N.E.2d 1115, 1116, citing Shaver v. Cordis Corp. (1991), 61 Ohio St.3d 213, 218, 574 N.E.2d 457, 461. Further, unless there is ambiguity, legislative intent must be determined from the language of the statute itself. R.C. 1.49; Stewart v. Trumbull Cty. Bd. of Elections (1973), 34 Ohio St.2d 129, 63 O.O.2d 227, 296 N.E.2d 676; State v. Singer (1977), 50 Ohio St.2d 103, 108, 4 O.O.3d 237, 240, 362 N.E.2d 1216, 1220. In following these well-established principles, this court finds that the language of R.C. 4511.191(C)(2)(b) contains a misplaced modifier. Modifiers should be placed as close as possible to the words they modify. “If several expressions modify the same word, they should be so arranged that no wrong relation is suggested.” Strunk & White, The Elements of Style (3 Ed.1979) 30. The phrase “will be suspended for the period of time specified by law by the officer, on behalf of the registrar of motor vehicles,” R.C. 4511.191(C)(2)(b), contains two similar modifiers: the prepositional phrases “by law” and “by the officer.” We believe that the phrase “by the officer” modifies both the phrase “will be suspended,” and the phrase “on behalf of the registrar of motor vehicles.” In other words, the officer suspends the license on behalf of the Registrar of Motor Vehicles. The phrase “by law” modifies the word “specified” in the phrase “for the period of time specified.” In other words, the period of time is specified by law.

Informing an arrestee of the consequences of his actions in the ALS process is not only a requirement of R.C. 4511.191(C), but is essential to fairness and due process. However, requiring law enforcement to be able to make an on-the-spot determination of the exact period of a license suspension is inconsistent with the plain meaning of the statute.

Therefore, we hold that the advice which must be given to an arrestee under R.C. 4511.191(C)(2)(b) does not include the obligation to specify the exact period of potential suspension. Instead, the requirement of R.C. 4511.191(C)(2)(b) is met when the top portion of BMV Form 2255 is read verbatim to the arrestee.

Judgment affirmed.

Moyer, C.J., Douglas, Baird, F.E. Sweeney, Pfeifer and Cook, JJ., concur. William R. Baird, J., of the Ninth Appellate District, sitting for Resnick, J.