THE STATE OF OHIO, APPELLEE, v. HOCHHAUSLER ET AL., APPELLANTS.
No. 95-1365
Supreme Court of Ohio
July 30, 1996
76 Ohio St.3d 455 | 1996-Ohio-374
Submitted February 7, 1996. APPEAL from the Court of Appeals for Warren County, Nos. CA93-12-104 and CA93-12-105.
- The administrative license suspension provisions of
R.C. 4511.191 do not violate the right to procedural due process. - The “no stay” provision of
R.C. 4511.191(H)(1) is unconstitutional as a violation of the doctrine of separation of powers and is severable from the rest of the statute. R.C. 4511.195 is unconstitutional as applied to the owner of a vehicle that has been seized and immobilized because the vehicle was being operated by a third person when thаt person was arrested on a drunk-driving charge.
Timothy A. Oliver, Warren County Prosecuting Attorney, Carolyn A. Duvelius, Assistant Prosecuting Attorney; Betty D. Montgomery, Attorney General, Jeffery S. Sutton, State Solicitor, Susan E. Ashbrook and Andrew S. Bergman, Assistant Attorneys General, for appellee.
Rittgers & Mengle, W. Andrew Hasselbach and Charles H. Rittgers, for appellants.
Baker & Hostetler, Richard W. Siehl and Anthony J. Franze, urging affirmance for amicus curiae, Mothers Against Drunk Driving.
Baker & Hostetler, William W. Falsgraf and Shilpa Shah, urging affirmance for amicus curiae, American Alliance for Rights and Responsibilities.
James M. Looker, urging reversal for amicus curiae, Ohio Association of Criminal Defense Lawyers.
Gump & Slyman Co., L.P.A., Jeffrey D. Slyman and Dennis E. Gump, urging reversal for amicus curiae, Ohio Academy of Trial Lawyers.
{¶ 1} On December 3, 1993, appellant Thomas J. Hochhausler was arrested and charged with his second offense within five years of driving while intoxicated in violation of
{¶ 2} At the time of the arrest, Hochhausler was driving a Ford pick-up truck owned by appellant Omni Fireproofing, Inc. (“Omni”). Omni is a closely held corporation in which Hochhausler is the president and majority shareholder. The vehicle was seized and the license plates were impounded pursuant to
{¶ 3} On December 9, at his initial appearance before the trial court, Hochhausler entered a plea of not guilty and made the following motions: (1) to dismiss the ALS on the ground that the suspension violated the Ohio and United States Constitutions; (2) to appeal the ALS pursuant to
{¶ 4} On December 16, Hochhausler appealed the denial of his motions to the Twelfth District Court of Appeals, arguing that
{¶ 5} The court of appeals affirmed the judgment of the triаl court, holding that
{¶ 6} This cause is now before this court upon the allowance of a discretionary appeal.
{¶ 7} In this case, we are asked to determine several issues relating to the constitutionality of
I
R.C. 4511.191—Procedural Due Process
{¶ 9} Hochhausler argues that the administrative suspension of his driver’s license pursuant to
{¶ 10}
“Upon receipt of the sworn report of an arresting officer completed and sent to the registrar and a court pursuant to divisions (D)(1)(c) and (D)(2) of this section in regard to a person whose test results indicate that his blood contained a concentration of ten-hundredths of one per cent or more by weight of alcohol, his breath contained a concentration of ten-hundredths of one gram or more by weight of alcohol per two hundred ten liters of his breath, or his urine contained a concentration of fourteen-hundredths of one gram or more by weight of alcohol per one hundred milliliters of his urine at the time of the alleged offense, the registrar shall enter into his records the fact that the person’s driver’s or commerсial driver’s license or permit or nonresident operating privilege was suspended by the arresting officer under division (D)(1)(a) of this section and the period of the suspension, as determined under divisions (F)(1) to (4) of this section. The suspension shall be
subject to appeal as provided in this section and shall be for whichever of the following periods that applies: “(1) If the person has not been convicted, within five years of the date the test was conducted of a violation of section 4511.19 of the Revised Code, * * * the period of the suspension or denial shall be ninety days.
“(2) If the person has been convicted, within five years of the date the test was conducted, of one violation of a statute or ordinance described in division (F)(1) of this section, the period of the suspension or denial shall be one year.
“(3) If the person has been convicted, within five years of the date the test was conducted, of two violations of a statute or ordinance described in division (F)(1) of this section, the period of the suspension or denial shall be two years.
“(4) If the person has been convicted, within five years of the date the test was conducted, of more than two violations of a statute or ordinance described in division (F)(1) of this section, the period of the suspension or denial shall be three years.”
{¶ 11}
“(a) Whether the law enforcement officer had reasonable ground to believe the arrested person was operating a vehicle * * * while under the influence * * * or with a prohibited concentration of alcohol in the blood, breath, or urine and whether the arrested person was in fact placed under arrest;
“(b) Whether the law enforcement officer requested the arrested person to submit to the chemical test * * *;
“(c) Whether the arresting officer informed the arrested person of the consequences of refusing to be tested or of submitting to the test;
“(d) Whichever of the following is applicable:
(i) Whether the arrested person refused to submit to the chemical test requested by the officer; (ii) Whether the chemical test results indicate that [the arrestee’s blood, breath, or urine contain alcohol in excess of the statutory limits.]” R.C. 4511.191(H)(1)(a) through (d).
{¶ 12} Due process under the Ohio and United States Constitutions demands that the right to notice and an opportunity to be heard must be granted at a meaningful time and in a meaningful manner where the state seeks to infringe a protected liberty or property interest. Greene v. Lindsey (1982), 456 U.S. 444, 102 S.Ct. 1874, 72 L.Ed.2d 249; Boddie v. Connecticut (1971), 401 U.S. 371, 378, 91 S.Ct. 780, 786, 28 L.Ed.2d 113; Williams v. Dollison (1980), 62 Ohio St.2d 297, 299, 16 O.O. 3d 350, 351, 405 N.E.2d 714, 716. However, the concept of due process is flexible and varies depending on the importance attached to the interest and the particular circumstances under which the deprivation may occur. Walters v. Natl. Assn. of Radiation Survivors (1985), 473 U.S. 305, 320, 105 S.Ct. 3180, 3189, 87 L.Ed.2d 220, 232.
{¶ 13} It is well settled that the Due Process Clause applies to the suspension or revocation of a driver’s license. Dixon v. Love (1977), 431 U.S. 105, 112, 97 S.Ct. 1723, 1727, 52 L.Ed.2d 172, 179-180; Bell v. Burson (1971), 402 U.S. 535, 539, 91 S.Ct. 1586, 1589, 29 L.Ed.2d 90, 94; Maumee v. Gabriel (1988), 35 Ohio St.3d 60, 518 N.E.2d 558. Accordingly, we proceed to determine whether the procedural safeguards provided by
{¶ 14} In Mackey v. Montrym (1979), 443 U.S. 1, 99 S.Ct. 2612, 61 L.Ed.2d 321, the United States Supreme Court addressed the issue of what process is due to protect an individual against an erroneous deprivation of the property interest in a driver’s license. The Mackey court used the three-pronged balancing test set forth in Mathews v. Eldridge (1976) 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18. Although
“First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” (Emphasis added.) Mathews at 335, 96 S.Ct. at 903, 47 L.Ed.2d at 33.
The Mathews Test Applied
Private Interest
{¶ 15} Applying the first prong of the Mathews test to Hochhausler’s argument, it is easily determined that the private interest at issue is Hochhausler’s stake in the continued possession and use of his driver’s license pending the outcome of the ALS appeal. This interest is substantial, in part because the state “will not be able to make a driver whole for any personal inconvenience or economic hardship suffered by reason of any delay in redressing аn erroneous suspension through postsuspension review procedures.” Mackey, at 11, 99 S.Ct. at 2617, 61 L.Ed.2d at 330. The determinative factors we must consider in determining the actual weight to be given to this interest include (1) the duration of the license suspension, (2) the availability of prompt postsuspension review, and (3) the availability of hardship relief. Id. at 11-12, 99 S.Ct. at 2617-2618, 61 L.Ed.2d at 330-331.
{¶ 16} The duration of the license suspension for a person who takes and fails a chemical test is dictated by
{¶ 17} This court and the United States Supreme Court, when reviewing statutes substantially similar to
{¶ 18} We next consider the availability of prompt postsuspension review and its effect on the private interest.
{¶ 19} Finally, the availability of hardship relief, while not extensive, is sufficient to satisfy the private-interest element. Under
Risk of Erroneous Deprivation
{¶ 20} The second prong of the Mathews test requires us to consider the risk of an erroneous deprivation of a driver’s license as a result of the procedures used. While this prong also requires consideration of the reliability of the procedures, the Due Process Clause has never been construed to mandate that the procedures used be so comprehensive as to preclude any possibility of error. Thus, “‘something less than an evidentiary hearing is sufficient prior to adverse administrative action.’” Dixon, at 113, 97 S.Ct. at 1728, 52 L.Ed.2d at 180. Further, when promрt postdeprivation review is available to correct administrative error, no more is generally required “than that the predeprivation procedures used be designed to provide a reasonably reliable basis for concluding that the facts justifying the official action are as a responsible government official warrants them to be.” Mackey, at 13, 99 S.Ct. at 2618, 61 L.Ed.2d at 331.
Governmental Interest
{¶ 22} The final prong of the Mathews test requires consideration of the governmental interest served by the provisions of
{¶ 23} For all of the foregoing reasons, we hold that the administrative license suspension provisions of
II
Separation of Powers
{¶ 24} Hochhausler contends that the “no stay” provision of
“If the person appeals the suspension [of his driver’s license] at his initial appearance, the appeal does not stay the operation of the suspension. Subject to division (H)(2) of this section, no court has jurisdiction to grant a stay of a suspension imposed under division (E) or (F) of this section, and any order issued by any court that purports to grant a stay of any suspension imposed under either of those divisions shall not be given administrative effect.” (Emphasis added.)
{¶ 25} The principle of separation of powers is embedded in the constitutional framework of our state government. The Ohio Constitution applies the principle in defining the nature and scope of powers designated to the three branches of the government. State v. Warner (1990), 55 Ohio St.3d 31, 43-44, 564 N.E.2d 18, 31. See State v. Harmon (1877), 31 Ohio St. 250, 258. It is inherent in our theory of government “‘that each of the three grand divisions of the government, must be protected from the encroachments of the others, so far that its integrity and independence may be preserved. * * *’” S. Euclid v. Jemison (1986), 28 Ohio St.3d 157, 159, 28 OBR 250, 252, 503 N.E.2d 136, 138, quoting Fairview v. Giffee (1905), 73 Ohio St. 183, 187 76 N.E. 865, 866.
{¶ 26} In order to preserve the constitutionality of
{¶ 27} We have held that “[t]he administration of justice by the judicial branch of the government cannot be impeded by the other branches of the government in the exercise of their respective powers.” State ex rel. Johnston v. Taulbee (1981), 66 Ohio St.2d 417, 20 O.O.3d 361, 423 N.E.2d 80, paragraph one of the syllabus. We have also held that “[c]ourts of general jurisdiction, whether named in the Constitution or еstablished pursuant to the provisions thereof, possess all powers necessary to secure and safeguard the free and untrammeled exercise of their judicial functions and cannot be directed, controlled or impeded therein by other branches of the government.” (Citations omitted.) Id. at paragraph two of the syllabus.
{¶ 28} The legislative branch has no right to limit the inherent powers of the judicial branch of the government. Hale v. State (1896), 55 Ohio St. 210, 212-213, 45 N.E. 199, 200. Inherent within a court’s jurisdiction, and essential to the orderly and efficient administration of justice, is the power to grant or deny stays. See Landis v. N. Am. Co. (1936), 299 U.S. 248, 254, 57 S.Ct. 163, 166, 81 L.Ed. 153, 158; State v. Smith (1989), 42 Ohio St.3d 60, 61, 537 N.E.2d 198, 200. To the extent that
{¶ 29} Having found part of
{¶ 30} Prior to severing a portion of a statute, we must first determine that the severability will not fundamentally disrupt the statutory scheme of which the unconstitutional provision is a part. State ex rel. Maurer v. Sheward (1994), 71 Ohio St.3d 513, 523, 644 N.E.2d 369, 377. The test for determining whether part of a statute is severable was set forth in Geiger v. Geiger (1927), 117 Ohio St. 451, 466, 160 N.E. 28, 33:
“‘(1) Are the constitutional and the unconstitutional parts capable of separation so that each may be read and may stand by itself? (2) Is the unconstitutional part so connected with the general scope of the whole as to make it impossible to give effect to the apparent intention of the Legislature if the clause or part is stricken out? (3) Is the insertion of words or terms necessary in order to separate the constitutional part from the unconstitutional part, and to give effect to the former only?’” Id., quoting State v. Bickford (1914), 28 N.D. 36, 147 N.W. 407, paragraph nineteen of the syllabus.
{¶ 31} Denying a court the power to grant a stay is not so essentially connected with the remainder of
III
R.C. 4511.195—Procedural Due Process
{¶ 32} Omni contends that the newly enacted vehicle-seizure provisions of
“(B)(1) If a person is arrested for a violation of section 4511.19 of the Revised Code or of a municipal OMVI ordinance and, within five years of the alleged violation, he previously has been convicted of or pleaded guilty to one or more violations of section 4511.19 of the Revised Code [or] a municipal OMVI ordinance * * *, the arresting officer or another officer of the law enforcement agency that employs the arresting officer, in addition to any action that the arresting officer is required or authorized to take by section 4511.191 of the Revised Code or by any other provision of law, shall seize the vehicle that the person was operating at the time of the alleged offense and its identification license plates. Except as otherwise provided in this division, the officer shall seize the vehicle and license plates under this division regardless of whether the vehicle is registered in the name of the person who was operating it or in the name of another person.” (Emphasis added.)
The Mathews Test Applied
Private Interest
{¶ 34} Clearly, there is a substantial interest in the possession and use of a vehicle. “Automobiles occupy a central place in the lives of most Americans, providing access to jobs, schools, and recreation as well as to the daily necessities of life.” Coleman v. Watt (C.A.8, 1994), 40 F.3d 255, 260-261. The private interest in a vehicle, however, is different from the interest in a driver’s license. A motor vehicle may be the subject of multiple private interests, i.e., a jointly owned family automobile or, as here, a company-owned vehicle, and the due process constriction on the state should be afforded to any person or entity with an interest in the instrumentality of the criminal offense. A private interest in a vehicle is transferable, whereas a driver’s license is unique to that individual. Further, an individual whose vehicle is seized pursuant to
Risk of Erroneous Deprivation
{¶ 35} The state argues that the risk of erroneous deprivation of an individual’s vehicle is exceedingly low. While we agree that a clerical search performed by the arresting officer may quickly and accurately determine whether
{¶ 36} As previously stated, the government has a compelling interest in protecting the public by removing from Ohio’s streets and highways persons who operate motor vehicles while intoxicated. However, the statutory scheme of
{¶ 37} Recently, the United States District Court for the Southern District of Ohio reviewed a constitutional challenge to the due process afforded under
{¶ 39} Accordingly, we affirm the judgment of the court of appeals as to Hochhausler’s due process challenge to
Judgment affirmed in part, reversed in part and cause remanded.
DOUGLAS, RESNICK and KARPINSKI, JJ., concur.
F.E. SWEENEY, J., concurs, except with paragraph three of the syllabus and the related discussion in the opinion, to which he dissents.
PATTON and COOK, JJ., concur in part and dissent in part.
JOHN T. PATTON, J., of the Eighth Appellate District, sitting for WRIGHT, J.
DIANE KARPINSKI, J., of the Eighth Appellate District, sitting for PFEIFER, J.
THE STATE OF OHIO, APPELLEE, v. HOCHHAUSLER ET AL., APPELLANTS.
No. 95-1365
Supreme Court of Ohio
July 30, 1996
COOK, J., concurring in part and dissenting in part.
I.
The “No Stay” Provision
{¶ 41} I dissent from paragraph two of the syllabus, holding that the “no stay” provision violates the doctrine of separation of powers in that it interferes with the exercise of a court’s inherent powers. The majority reaches this conclusion by reasoning that among a court’s inherent powers necessary “‘to secure and safeguard the free and untrammeled exercise of their judicial functions’” and to secure “‘the orderly and efficient administration of justice’” is a court’s ability to grant or deny stays. Among the authority the majority cites for this proposition is Hale v. State (1896), 55 Ohio St. 210, 212-213, 45 N.E. 199, 200. In Hale, we held that the court possesses the inherent authority to issue contempt orders. Unlike the power to stay, the power to issue contempt orders deals with the court’s ability to regulate the conduct of the parties and witnesses before it and to ensure that each party is given a fair opportunity to collect and present its evidence. Such safeguarding is at the core of a court’s ability to administer justice. However, such is not always the case with regard to the court’s power to stay proceedings.
{¶ 42} By the majority’s own standard, a court’s inherent ability to grant or deny a stay is not a general power, but is an extraordinary remedy limited to those times when necessary to the administration of justice. For example, the majority cites Landis v. N. Am. Co. (1936), 299 U.S. 248, 254-255, 57 S.Ct. 163, 166, 81 L.Ed.2d 153, 158, where the Supreme Court held that a stay of proceedings is incidental to the court’s inhеrent power to control and manage its docket and will be granted only in the rare case. Because the appeal of an ALS is limited in scope and defined by statute, courts do not need to stay the license suspension for the outcome in the criminal case in order to streamline the issues in the appeal. See
{¶ 43} A stay is also necessary to the administration of justice where a court seeks to prevent the undue hardship or irreparable injury resulting from the enforcement of a determination which may have been wrong. See, e.g., State v. Smith (1989), 42 Ohio St.3d 60, 61, 537 N.E.2d 198, 200 (courts have no inherent authority to suspend criminal sentences except to suspend execution of a sentence pending appeal or a motion for a new trial).
{¶ 44} Initially, we note that the circumstances under which an ALS is imposed all but ameliorates the wrong determination concern. An ALS is imposed for one of two reasons -- refusing to submit to chemical testing or failing the test. Because the ALS for refusing the test is not ultimately dependent on the accused’s conviction of an OMVI offense, that judicial determination has no bearing on the propriety of the enforcement of the ALS. On the other hand, where an ALS is imposed for failing the test, there is a good indication that the driver was, in fact, operating a motor vehicle with a prohibited blood-alcohol level. While the accused still еnjoys the judicial safeguards requisite to a criminal conviction, the interim suspension imposed for remedial purposes is justified. The suspension is reasonably likely to remove a threat from the roadways pending a judicial determination of guilt, thereby promoting public safety.
{¶ 45} Moreover, the granting of a license is a privilege and not an absolute property right, State v. Williams (1996), 76 Ohio St.3d 290, 667 N.E.2d 932; Dobbins v. Ohio Bur. of Motor Vehicles (1996), 75 Ohio St.3d 533, 538, 664 N.E.2d 908, 912; Doyle v. Ohio Bur. of Motor Vehicles (1990), 51 Ohio St.3d 46, 51, 554 N.E.2d 97, 102, and the temporary loss or suspension of this privilege is an “inconvenience.” Columbus v. Adams (1984), 10 Ohio St.3d 57, 60, 10 OBR 348, 350, 461 N.E.2d 887, 890. Thus, an ALS imposed under
{¶ 47} By allowing the judiciary to stay the ALS, the majority thwarts the remedial purpose of driver’s license suspensions. The ALS is intended to protect the public by removing drunk drivers from our highways until a judicial determination of the four statutory criteria set forth in
II.
Due Process and R.C. 4511.195
{¶ 48} The majority also holds that
{¶ 49} In Calero-Toledo v. Pearson Yacht Leasing Co. (1974), 416 U.S. 663, 94 S.Ct. 2080, 40 L.Ed.2d 452, the United States Supreme Court considered and rejected a due-process challenge to the seizure of a yacht when its owner was not involved in any criminal activity and was unaware that the lessee of the yacht
{¶ 50} As was held in Calero-Toledo, due process is not violated by the seizure in this case. This seizure serves the important government interest of promptly eliminating recidivist drunk driving by immediately removing the instrumentality of the drunk-driving offense. There also exists a special need for prompt seizure, since a car, like a yacht, could be removed to another jurisdiction or concealed if advance notice of the seizure were to be given. Id. at 679, 94 S.Ct. at 2090, 40 L.Ed.2d at 466. The seizure is not initiated by self-interested private parties, but rather is initiated by law enforcement officers under narrowly tailored circumstances. The seizure is warranted only when a driver has at least one prior OMVI conviction within the preceding five years, the driver’s record of prior arrests is easily verifiable, the arrest may be weighed according to objective criteria, and the statute employs extensive notice provisions.
{¶ 51} Moreover, persons affected by the seizure are given a prompt opportunity to be heard. The driver or innocent owner is given an opportunity to appeal the immobilization at the initial hearing, which must be held within five days of the arrest. The request for an appeal may also be made at any time thereafter.
{¶ 52} For these reasons, I cannot agree that
PATTON, J., concurs in the foregoing opinion.