259 N.E.2d 136 | Ohio Ct. App. | 1970
This is an appeal from an order of the Municipal Court of Franklin County denying appellant's *131 petition seeking reversal of the order of the Bureau of Motor Vehicles suspending appellant's driver's license for a six-month period. The order is affirmed.
Appellant was arrested on May 25, 1969, by the Upper Arlington Police Department for operating a motor vehicle while under the influence of alcohol, taken to the Upper Arlington Police Station, and offered a chemical sobriety test by the arresting officer. The officer then swore to an affidavit, and later testified before the court, that he had reasonable grounds to believe that appellant was operating a motor vehicle in Franklin County while under the influence of alcohol, and that appellant refused to submit to the designated test when requested to do so, after having been advised of the consequences of refusal.
Appellant's first assignment of error claims that the evidence presented does not support the proposition that appellant was aware of being advised of the consequences of the refusal of taking a chemical test, or that he so refused. In addition to the officer's affidavit, the court had before it the testimony of the officer, "He refused this test, along with all the other normal tests on the alcoholic influence report. In fact, he refused everything under our normal procedure in handling drunk drivers." Defendant testified that he remembered nothing of being asked to take a test. The burden of proof was on the appellant to establish that the act which would constitute a refusal was not a refusal. Certainly there was sufficient evidence before the trial court to permit a finding by that court that there had been a refusal. It is a question of fact to be decided by the Municipal Court.
Appellant next asserts that since he had pleaded guilty to the charge of operating a motor vehicle while under the influence of alcohol his license cannot be suspended under Section
"Since the direct purpose of the implied consent law is to make available evidence of the truth in order that the *132 primary criminal action may be prosecuted, the plea of `guilty' in that case obviates such purpose."
Supportive of Williamson and Dudley, supra, is the case ofGroff v. Rice (decided November 18, 1969),
In California, the Court of Appeals, Second District, Division One, held that the implied consent statute imposed a mandatory duty on the Department of Motor Vehicles and that suspension was a required consequence, and whether or not a driver pleaded guilty to driving while intoxicated was irrelevant to suspension under the implied consent statute.Serenko v. Bright (1968),
The Supreme Court of Nebraska held that the driver's "plea of guilty to a criminal charge * * * does not preclude the subsequent revocation of his driver's license in the administrative proceedings before the director of Motor Vehicles under the provisions of the Implied Consent Act." Ziemba v.Johns (1968),
The reasoning and holdings of the courts in Groff,Williamson and Dudley, supra, cannot be upheld in light of the holding of the Ohio Supreme Court in State v. Starnes (decided January 14, 1970),
"* * * proceedings under Section
"* * * the fact that such person [whose license has been suspended] has been adjudged guilty of the offense of physical control of a motor vehicle while under the influence of intoxicating liquor does not preclude a finding of reasonable ground to believe that such person was driving while under the influence of alcohol."
We cannot agree with appellant's argument that it was the intention of the Legislature to construe Section
The construction of the statute under the interpretation which the court in Groff, supra, would have us give would be that if a defendant did not plead guilty to operating a motor vehicle while under the influence of alcohol his driver's license would be suspended by the Bureau of Motor Vehicles for failure to submit to a chemical analysis, but if he did plead guilty the license could not be suspended by the Registrar under the statute. The courts in Williamson and Dudley, supra, would go even further, and, in effect, say that if a defendant pleads guilty within ten days there shall be no penalty; but if he fails to do so, then under Section
The rationale of Groff v. Rice,
Surely a statute specifically providing that — "No license *134 shall be suspended under the provisions of this act if a person pleads guilty to the charge of operating a motor vehicle while under the influence of alcohol" — would clearly be unconstitutional. This conclusion, in our opinion, would be true whether such plea of guilty was made within 10 days, or thereafter.
There is no indication in this legislation that the Legislature of the state of Ohio is even slightly concerned with the plea of appellant in a case of operation of a motor vehicle while under the influence of alcohol, or any other criminal charge. Section
We are not predicating our opinion on the fact that defendant pleaded guilty to the charge in a mayor's court, a court not of record, which has no authority to suspend drivers' licenses, as distinguished from a court of record which does have such authority. However, just as was pointed out by Justice Matthias in his footnote in the Starnes case, the defendant therein, although avoiding any possible suspension of a driver's license by pleading guilty to physical control, nevertheless, "has not avoided a [driver's] license suspension under the provisions of Section
Proceedings under Section
If appellant desires further appeal, the entry affirming the judgment of the lower court may include a certification of the judgment in this case to the Supreme Court as being in conflict with the judgment of the Court of Appeals for Shelby County inGroff v. Rice,
Order affirmed.
LEACH and HOLMES, JJ., concur.