THE STATE OF OHIO, APPELLANT AND CROSS-APPELLEE, v. HOOVER, APPELLEE AND CROSS-APPELLANT.
No. 2007-2295
Supreme Court of Ohio
September 30, 2009
123 Ohio St.3d 418, 2009-Ohio-4993
LANZINGER, J.
Submitted October 15, 2008
{145} Because I would hold that relator is entitled to partial relief, I would grant a writ of mandamus to compel disclosure of the constructed-response questions of the ninth-grade semester examinations. In all other aspects, I would deny the writ.
MOYER, C.J., concurs in the foregoing opinion.
Ted L. Wills, for relator.
Taft Stettinius & Hollister, L.L.P., Mark J. Stepaniak, and Ryan M. Martin, for respondent.
THE STATE OF OHIO, APPELLANT AND CROSS-APPELLEE, v. HOOVER, APPELLEE AND CROSS-APPELLANT.
[Cite as State v. Hoover, 123 Ohio St.3d 418, 2009-Ohio-4993.]
(No. 2007-2295—Submitted October 15, 2008—Decided September 30, 2009.)
LANZINGER, J.
I. Factual and Procedural Background
{¶ 2} In the early morning hours of September 8, 2006, Deputy Kelly S. Nawman stopped a car after she saw it cross the center line by a tire‘s width. Upon approaching the vehicle, she detected a strong scent of intoxicants. Corey Hoover, the appellee and cross-appellant in this case, was the driver. He admitted to having drunk some alcohol before driving, and he performed poorly on the field sobriety tests. Hoover was then arrested and was read his Miranda rights. After being taken to the Union County Sheriff‘s Office, he was asked to submit to a breath-alcohol test, but he refused.
{¶ 3} Hoover was charged with violating
{¶ 4} The trial court overruled the motion to dismiss, and Hoover entered a no-contest plea. The court found Hoover guilty, and because he had a prior DUI conviction within the previous six years, sentenced him to 60 days in jail (with 40 days suspended) under
{¶ 5} On October 29, 2007, the Third District Court of Appeals reversed the judgment of the trial court, in part. It held that the enhanced sentencing under
{¶ 6} Both parties appealed. The state argues that the court of appeals erred in finding the sentence enhancement unconstitutional; Hoover argues that his conviction should have been overturned because the court should have declared
{¶ 7} The case is now before us upon the acceptance of a discretionary appeal and cross-appeal. State v. Hoover, 117 Ohio St.3d 1496, 2008-Ohio-2028, 885 N.E.2d 954.
II. Law and Analysis
{¶ 8} We first acknowledge that statutes enjoy a strong presumption of constitutionality. State v. Carswell, 114 Ohio St.3d 210, 2007-Ohio-3723, 871 N.E.2d 547, ¶ 6; State v. Collier (1991), 62 Ohio St.3d 267, 269, 581 N.E.2d 552. A statute will be upheld unless the challenger can meet the burden of establishing beyond a reasonable doubt that the statute is unconstitutional. State v. Tooley, 114 Ohio St.3d 366, 2007-Ohio-3698, 872 N.E.2d 894, ¶ 29; Collier at 269.
A. The Criminal Statute
{¶ 9} Hoover argues that
{¶ 10} “No person who, within twenty years of the conduct described in division (A)(2)(a) of this section, previously has been convicted of or pleaded guilty to a violation of this division, a violation of division (A)(1) or (B) of this section, or a municipal OVI offense shall do both of the following:
{¶ 12} “(b) Subsequent to being arrested for operating the vehicle * * *, being asked by a law enforcement officer to submit to a chemical test or tests under [
{¶ 13} There are three elements of a charge brought pursuant to
B. The Implied-Consent Statute
{¶ 14}
{¶ 15} “Any person who operates a vehicle * * * within this state * * * shall be deemed to have given consent to a chemical test or tests of the person‘s whole blood, blood serum or plasma, breath, or urine to determine the alcohol, drug of abuse, controlled substance, metabolite of a controlled substance, or combination content of the person‘s whole blood, blood serum or plasma, breath, or urine if arrested for a violation of division (A) or (B) of [
{¶ 16} Furthermore, under
{¶ 18} “Section 4511.191, Revised Code, does not violate the search and seizure provision of the Fourth Amendment, nor the self-incrimination clause of the Fifth Amendment to the United States Constitution by providing that any operator of a motor vehicle upon the public highways in this state shall be deemed to have given consent to a chemical test to determine the alcoholic content of his blood if arrested for the offense of driving while under the influence of alcohol. (Schmerber v. California [1966], 384 U.S. 757 [86 S.Ct. 1826, 16 L.Ed.2d 908]; Westerville v. Cunningham [1968], 15 Ohio St.2d 121 [44 O.O.2d 119, 239 N.E.2d 40], applied.)”
{¶ 19} The United States Supreme Court has held that if an officer has probable cause to arrest a driver for DUI, the result of an analysis of a blood sample taken over the driver‘s objection and without consent is admissible in evidence, even if no warrant had been obtained. Schmerber v. California (1966), 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908. The court noted that delaying the test to get a warrant would result in a loss of evidence. Id. at 770-771. Following Schmerber, we held that “[o]ne accused of intoxication has no constitutional right to refuse to take a reasonably reliable chemical test for intoxication.” Westerville v. Cunningham (1968), 15 Ohio St.2d 121, 44 O.O.2d 119, 239 N.E.2d 40, paragraph two of the syllabus.
C. Refusal to Consent
{¶ 20} To summarize, a driver‘s refusal to submit to chemical testing when arrested on probable cause for DUI can result in two consequences. The driver receives an ALS under
{¶ 21} It is crucial to note that the refusal to consent to testing is not, itself, a criminal offense. The activity prohibited under
{¶ 22} Hoover contends, however, that he has a constitutional right to revoke his implied consent and that being forced by threat of punishment to submit to a
{¶ 23} Furthermore, the request to submit to a chemical test does not occur until after probable cause to arrest exists. In this case, the arresting officer pulled Hoover over after she saw him drive across the center line. She smelled a strong odor of intoxicants as she approached his car. Hoover admitted that he had been drinking. He then performed poorly on field sobriety tests. Because
{¶ 24} This court‘s statement in State v. Gustafson (1996), 76 Ohio St.3d 425, 439, 668 N.E.2d 435, referring to an ALS suspension for refusing to consent, also holds true under these circumstances: “[T]he act of refusing a chemical test for alcohol, standing alone, does not constitute a criminal ‘offense’ of any kind. Ohio police officers are not statutorily authorized to randomly demand chemical alcohol testing of Ohio drivers in the absence of an arrest for DUI, and there is no criminal charge which can be lodged for the act of refusing a chemical test. Nor does
{¶ 25} An administrative license suspension is an automatic consequence of a refusal to take a chemical test.
{¶ 26} Furthermore, we have held that “[i]n Ohio, a license to operate a motor vehicle is a privilege, and not an absolute property right.” Doyle v. Ohio Bur. of Motor Vehicles (1990), 51 Ohio St.3d 46, 554 N.E.2d 97, paragraph two of the syllabus. “The state has the right under its sovereign power to control automobile traffic by reasonable regulations of the circumstances under which its citizens may be licensed to operate a motor vehicle and to adopt appropriate provisions to insure competence and care on the part of licensees, to protect others using the highways; and any appropriate means adopted does not deny to a person subject to its provisions any constitutional rights under the Constitution of the United States or the state of Ohio.” Id. at 51, n. 6, quoting State v. Newkirk (1968), 21 Ohio App.2d 160, 165, 50 O.O.2d 253, 255 N.E.2d 851.
{¶ 27} The subsection under which Hoover was charged,
{¶ 28} The dissent argues that this court has already answered the question before us in Wilson v. Cincinnati (1976), 46 Ohio St.2d 138, 75 O.O.2d 190, 346 N.E.2d 666. That case, however, is readily distinguishable. First, Wilson involved a homeowner‘s failure to tender a certificate of housing inspection to a prospective buyer, hardly analogous to a DUI arrest. Second, property owners in the city of Cincinnati were required by city ordinance to have their property inspected by city officials before any sale of their property. An inspection was required even if there was no indication that the property violated any provision of the building code. Failure to have the property inspected exposed the owners to criminal sanctions. Unlike the property inspections in Wilson, the chemical test under discussion is not required until after probable cause to arrest exists. Finally, the property owners in Wilson had a right to refuse to consent to the search of their homes. But as we previously stated, Hoover did not have a right to refuse to take a reasonably reliable chemical test for intoxication. See Cunningham, 15 Ohio St.2d 121, 44 O.O.2d 119, 239 N.E.2d 40, paragraph two of the syllabus.
III. Conclusion
{¶ 30} We hold that
Judgment affirmed in part and reversed in part.
LUNDBERG STRATTON, O‘CONNOR, and CUPP, JJ., concur.
MOYER, C.J., and PFEIFER and O‘DONNELL, JJ., dissent.
PFEIFER, J., dissenting.
{¶ 31} The majority‘s interpretation of
{¶ 32} This court‘s previous cases regarding sanctions for a DUI defendant‘s failure to consent to chemical tests have all involved license suspensions: “This court has historically and repeatedly characterized driver‘s license suspensions imposed pursuant to Ohio‘s implied consent statutes as being civil in nature and remedial in purpose.” State v. Gustafson (1996), 76 Ohio St.3d 425, 440, 668 N.E.2d 435. Moreover, in Gustafson, this court held that “the act of refusing a chemical test for alcohol, standing alone, does not constitute a criminal ‘offense’ of any kind.” Id. at 439.
{¶ 33} The majority states in ¶ 21, “It is crucial to note that the refusal to consent to testing is not, itself, a criminal offense.” Rather than crucial, that point is insignificant:
{¶ 34} The majority relies heavily upon this court‘s decision in Westerville v. Cunningham (1968), 15 Ohio St.2d 121, 44 O.O.2d 119, 239 N.E.2d 40, wherein the court held that “[o]ne accused of intoxication has no constitutional right to refuse to take a reasonably reliable chemical test for intoxication.” Id. at paragraph two of the syllabus. But that case concerned a defendant‘s assertion of his Fifth Amendment rights; the defendant in Cunningham argued that using his refusal to submit to a chemical test as evidence against him in a trial would violate his right not to incriminate himself. Hoover asserts here that
{¶ 35} This court has previously answered the question whether a person can face criminal sanctions for failure to consent to a search. In Wilson v. Cincinnati (1976), 46 Ohio St.2d 138, 75 O.O.2d 190, 346 N.E.2d 666, this court held that the Fourth Amendment prohibits the imposition of criminal penalties upon a person who refuses to submit to a warrantless search. As here, the defendant in Wilson “faced * * * a serious dilemma; either [she had to] consent to a warrantless search or face the possibility of a criminal penalty.” Id. at 143. The ordinance at issue in Wilson required a homeowner, prior to entering into a contract for the sale of her property, to tender to the prospective buyer a certificate of housing inspection. A seller‘s failure to comply with the certificate requirement rendered the seller subject to a criminal penalty. Fourth Amendment rights were implicated because sellers could obtain the certificate only by allowing a city inspector to access their property. Thus, in order to sell his or her property, a seller had to consent to a warrantless search or face the possibility of a criminal penalty. This court held in Wilson:
{¶ 36} “Where a municipal ordinance requires the owner of real property to tender a certificate of housing inspection to a prospective buyer, and such certificate may be obtained only by allowing a warrantless inspection of the property, the imposition of a criminal penalty upon the owner‘s failure to tender the certificate violates the owner‘s rights under the Fourth Amendment to the
{¶ 37} As this court noted in Wilson, “[g]enerally, a search to which an individual consents meets Fourth Amendment requirements. Katz v. United States (1967), 389 U.S. 347, 358 [88 S.Ct. 507, 19 L.Ed.2d 576].” Wilson, 46 Ohio St.2d at 143. However, consent given in response to coercion does not meet Fourth Amendment requirements: “[A] valid consent involves a waiver of constitutional rights and cannot be lightly inferred; hence, it must be ‘voluntary and uncoerced, either physically or psychologically.’ United States v. Fike (C.A.5, 1972), 449 F.2d 191, 193; Phelper v. Decker (C.A.5, 1968), 401 F.2d 232; Cipres v. United States (C.A.9, 1965), 343 F.2d 95.” Wilson at 143-144.
{¶ 38} In Wilson, this court held that the coercive nature of a potential criminal penalty negated any consent to search: “In the case before us, the coercion represented by the sole alternative of possible criminal prosecution clearly negates any ‘consent’ which may be inferred from the allowance of the inspection and, therefore, the validity of such searches upon the basis of consent is not sustainable.” Wilson at 144.
{¶ 39} This case is not about whether police officers could have legally executed a chemical test on Hoover. A search can meet the requirements of the Fourth Amendment even if it is executed without a suspect‘s consent. Officers could have sought a warrant to obtain a test. Further, the United States Supreme Court has held that when a defendant refuses to consent to a taking of his blood for chemical analysis, a blood sample taken over his objection and without his consent is admissible in evidence, even if no warrant had been obtained, if the officer had probable cause to arrest for DUI. Schmerber v. California (1966), 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908. Schmerber thus protects the state‘s ability to gather evidence to prove its case without obtaining a defendant‘s consent. The defendant can still refuse to consent, but his failure to consent lacks strategic value because the state can find another way to acquire the necessary evidence. That is different from the majority‘s claim in this case that a defendant has no right to assert a refusal to consent. Schmerber exists because a defendant has the right to refuse consent.
{¶ 40} The issue here is whether the state can criminalize a person‘s failure to consent to a warrantless search or, in other words, force a consent to search through the coercive power of threatened jail time. Although consent is implied by
MOYER, C.J., and O‘DONNELL, J., concur in the foregoing opinion.
Richard Cordray, Attorney General, and Benjamin C. Mizer, Solicitor General; and Tim M. Aslaner, Marysville Law Director, for appellant and cross-appellee.
Jonathan T. Tyack, for appellee and cross-appellant.
Victor R. Perez, Chief Prosecutor for the city of Cleveland, supporting the position of the state for amicus curiae city of Cleveland.