City of Cincinnati v. Kelley
351 N.E.2d 85
Ohio
1976
Check Treatment
Herbert, J.

The rulings of the courts below resolved, for our purposes here, all questions concerning credibility of witnesses and weight of evidence.

This appeal concerns the validity and cоnstruction of. part of Section 506-1 of the Cincinnati Municipal Code, -which states:

‘ ‘No person who is under the influence of alcohol pr a drug-of abuse: as defined in Section 3719.011 Ohio Revised Code shall operate or be in actual physical control of my vehicle within this city.” (Emphasis added.)

Aрpellant and appellee submit that the ordinance provides for two. ‍​​‌​​‌‌​‌​‌​​​​‌‌‌‌​‌‌​‌​‌​​‌​​​‌​‌​​‌‌‌​​​​‌​‌‌‍separаte offenses, in that it prohibits one from operating or being in “actual physicial control”'of a vehicle while under the influence of alcohol or drugs of *96abuse. Decisions of cоurts of this state and other jurisdictions construing similar statutes support that-interpretation. See, e. g., State v. Wilgus (1945), 31 Ohio Ops. 443; State v. Ezoto (1961), 116 Ohio App. 1, 186 N; E. 2d 206; State v. Purcell (Del. Super. 1975), 336 A. 2d 223; Newman v. Stinson (Ky. 1972), 489 S. W. 2d 826; State v. Webb (1954), 78 Ariz. 8, 274 P. 2d 338; and Parker v. State (Okla. Crim. App. 1967), 424 P. 2d 997.

, Appellee contends that insofar as the ordinance, a local police rеgulation, proscribes being in actual physical control of a vehicle while under the influence of alcohol or certain drugs, it conflicts with R. C. 4511.19 and is unconstitutional.1

R. C. 4511.19 states

“No person who is under the influence pf alcohol or any drug of abuse, or the combined influence of alcohol and any drug of abuse, shall operate any vehicle, streetcar, or trackless trolley within this state.”

This question was also raised in Sidney v. Thompson (1962), 118 Ohio App. 512, 196 N. E. 2d 112, in which the defendant attacked the constitutionality of a city ordinancе containing language almost identical to the ordinance ‍​​‌​​‌‌​‌​‌​​​​‌‌‌‌​‌‌​‌​‌​​‌​​​‌​‌​​‌‌‌​​​​‌​‌‌‍now before us. In rejecting thе assertion that a conflict existed,' the court stated in paragraph one of its syllabus:

“A muniсipal ordinance making it an offense to ‘operate or be in actual physicаl control? of a vehicle while under the influence of intoxicating liquor; narcotic drugs or opiates, is not in conflict with Section 4511.19, ■ Revised Code, which excludes physical control аs a possible statutory offense.” ■ ■

See, also, Toledo v. Best (1961), 172 Ohio St. 371, 176 N. E. 2d 520, where this court recognized the retention in the city ordinаnce of physical control as a possible statu*97tory offense and its deletion from R. C. 4511.19,2 yet upheld the constitutionality of the ordinance.

In view of the above, and the criterion upon which such questions of conflict are determined,3 no conflict exists between thе instant ordinance and R. C. 4511.19.

Appellant contends that under the circumstances of this case, appellee was in “actual ‍​​‌​​‌‌​‌​‌​​​​‌‌‌‌​‌‌​‌​‌​​‌​​​‌​‌​​‌‌‌​​​​‌​‌‌‍physical control” of his ve: hide, within the meaning of the оrdinance.

This court has often stated that a municipality may enact ordinances to promote the health, safety and general welfare of the public if the means adopted bear a real and substantial relationship to their purpose. Froelich v. Cleveland (1919), 99 Ohio St. 376, 124 N. E. 212; Dragelevich v. Youngstown (1964), 176 Ohio St. 23, 197 N. E. 2d 334. The clear purрose of the control aspect of the instant ordinance is to deter persons from being found under circumstances in which they can directly commence operating a vehicle while they are. under the influence of alcohol or particular drugs. Cf. Mentor v. Giordano (1967), 9 Ohio St. 2d 140, 224 N. E. 2d 343. This is an objective which is reasonably related to the health, safety and welfare of'the general рublic. However, to satisfy the requirement of Froelich and Dragelevich, supra, the term “actual physical control” must relate, in a reasonable manner, to the evil the ordinance is intended to combat, viz., the prеvention of the operation of vehicles by persons whose faculties are appreciably impaired from the consumption of alcohol or use of drugs of abuse. " :

Therefore, the term “actual physical control,” as employed in the subject ordinanсe, requires ‍​​‌​​‌‌​‌​‌​​​​‌‌‌‌​‌‌​‌​‌​​‌​​​‌​‌​​‌‌‌​​​​‌​‌‌‍that a person be in the driver’s seát of a vehicle, behind the'steering wheel, *98in pоssession'of the ignition.key, and.in snch condition that hie is physically capable of starting the еngine and causing-the vehicle to move.4

Under this test, the instant record supports a conclusion that appellee was under the influence of alcohol and was in actual physical control of the vehicle at the time of his arrest.

The judgment of the Court of Appeals is reversed.

Judgment reversed.

. , O’Neill, C. J., Stern and P. Brown, JJ., concur. ■Celebrezze, J., concurs in the judgment only. • Corrigan, and W. Brown, JJ., dissent.

Notes

Section 3 of Article XVIII of the Constitution of Ohio provides:

“Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their' limits such loeal poliсe, sanitary and other similar regulations, as are not in conflict with general laws.”

As noted in Best, both G. C. 6307-19 (a) and R. C. 4511.19 which superseded it, contained physical control as a statutory offense. ‍​​‌​​‌‌​‌​‌​​​​‌‌‌‌​‌‌​‌​‌​​‌​​​‌​‌​​‌‌‌​​​​‌​‌‌‍In October 1953 (125 Ohiо Laws 461), R. C. 4511.19 was amended to delete physical control as an offense.

See Struthers v. Sokol (1923), 108 Ohio St. 263, 140 N. E. 519; Cleveland v. Raffa (1968), 13 Ohio St. 2d 112, 235 N. E. 2d 138; Cincinnati v. Hoffman (1972), 31 Ohio St. 2d 163, 285 N. E. 2d 714.

Under the test for “аctual physical control,” as enunciated' herein, the fact that appellee’s interlock seat belt was not fastened bears solely upon his capability to start the engine.