Lead Opinion
{¶ 2} In July 2006, Schultz was charged with operating a vehicle under the influence of alcohol (OVI)1 pursuant to R.C.
{¶ 3} Schultz filed a motion to dismiss the indictment, alleging errors with the specifications. After a hearing, the motion was denied. Schultz waived a jury and was tried to the bench. He was found guilty of OVI with the specifications, which is a *2 felony of the fourth degree. He was sentenced to a year in prison, three years of post-release control, and a lifetime driver's license suspension.
{¶ 4} Schultz appeals, advancing three assignments of error for our review.
{¶ 6} Under this assignment of error, Schultz argues that the indictment was technically flawed because it does not state that he was charged with a felony of the fourth degree. In addition, he argues that the specifications are not properly set forth. We disagree.
{¶ 7} R.C.
{¶ 8} Here, the indictment set forth the additional elements (prior convictions) that elevated the charged offense to a felony of the fourth degree. It was not necessary to specifically state that Schultz was charged with a felony of the fourth degree. *3
{¶ 9} As for Schultz's complaint that the specifications were not properly set forth, we find no merit to this argument. R.C.
"(A) Imposition of a mandatory additional prison term of one, two, three, four, or five years upon an offender under division (G)(2) of section
2929.13 of the Revised Code is precluded unless the indictment, count in the indictment, or information charging a felony violation of division (A) of section4511.19 of the Revised Code specifies that the offender, within twenty years of the offense, previously has been convicted of or pleaded guilty to five or more equivalent offenses. The specification shall be stated at the end of the body of the indictment, count, or information and shall be stated in substantially the following form:"SPECIFICATION (or, SPECIFICATION TO THE FIRST COUNT). The Grand Jurors (or insert the person's or the prosecuting attorney's name when appropriate) further find and specify that (set forth that the offender, within twenty years of committing the offense, previously had been convicted of or pleaded guilty to five or more equivalent offenses)."
{¶ 10} This is precisely the format of Schultz's indictment. Accordingly, Schultz's first assignment of error is overruled.
{¶ 12} A challenge to the sufficiency of the evidence attacks the adequacy of the evidence presented. Whether the evidence is legally sufficient to sustain a conviction is a question of law. See State v.Thompkins,
{¶ 14} To enhance Schultz's OVI to a felony, he must have been convicted of five or more "equivalent offenses" in the past twenty years. One of Schultz's prior convictions is for driving under the influence in violation of Mentor Municipal Code 71.01(A)(1). Two of Schultz's prior convictions are for driving under the influence in violation of Cleveland Codified Ordinance 433.01. Another of Schultz's prior convictions is for driving under the influence in violation of R.C.
{¶ 15} In September 2004, Schultz pled guilty to being in physical control of a vehicle under the influence of alcohol in violation of Cleveland Codified Ordinance 433.011. "Physical control" is defined as being in the driver's position of the front *5 seat of a vehicle and having possession of the vehicle's ignition key or other ignition device. Id.
{¶ 16} Because Schultz was convicted of a physical control violation under an existing municipal ordinance, we look to subsection (A)(6) of R.C.
{¶ 17} R.C.
{¶ 19} But in S.B. 123, the General Assembly modified the definition in Gill and its predecessors by specifically defining "operate" in R.C.
{¶ 21} The new statutory offense, like the municipal offense, prohibits being in physical control of a vehicle while under the influence of alcohol or other drug of abuse. R.C.
{¶ 22} This offense is a misdemeanor of the first degree, and it does not enhance with subsequent convictions of physical control, unlike an OVI offense. Also, it does not carry with it mandatory jail terms, fines, suspensions, or immobilizations. The statute allows for a Class 7 license suspension and optional restricted plates, but it is a nonmoving, no points, violation.
{¶ 23} Nevertheless, physical control violations require similar written and verbal advice regarding the administrative penalties for refusing to submit to chemical testing, known as "BMV Form 2255." This is because one in physical control of a vehicle gives implied consent to chemical testing. See R.C.
{¶ 25} Today, the difference between an OVI and a physical control violation, besides the penalties, is that an OVI requires actual movement of the vehicle, whereas a physical control violation does not. After January 1, 2004, if there is no evidence that the person moved or caused the vehicle to move, that person cannot be convicted of OVI, but may be convicted of being in physical control of a vehicle while under the influence. Still, a person who is found passed out in his vehicle on the side of the highway may be convicted of an OVI because a jury could infer that the vehicle was moved to that location. However, if a person decides to "sleep it off" in the parking lot of the bar where the person drank, the person could be convicted only of a physical control violation, unless there is evidence of movement.
{¶ 26} The question before us is whether a physical control violation may be used to enhance a current OVI offense. We hold that it cannot. *10
{¶ 27} Again, we look to R.C.
{¶ 28} All fifty states, and the District of Columbia, have their own unique drunk driving laws.4 Obviously, subsection (A)(6) was written to encompass other states' drunk driving laws, that are substantially equivalent to Ohio's OVI laws, so that someone could not move to Ohio and have a "clean slate." See State v. Rogers, Montgomery App. No. 21208,
{¶ 29} More troubling, however, is the wording "existing or former municipal ordinance." When reading R.C.
{¶ 30} Nevertheless, the General Assembly amended Ohio's OVI statute narrowing the definition of "operate" to require that the person cause movement of the vehicle.6 Since the legislature chose to define "operate," we must assume that the amendment was intended to change existing law. Furthermore, the legislature created the new statutory offense of being in physical control while under the influence and chose not to specifically include it under R.C.
{¶ 31} Although, we recognize that being in physical control of a vehicle while under the influence in violation of R.C.
{¶ 33} In light of our foregoing analysis, we find that the evidence was insufficient to convict Schultz of a felony OVI.
{¶ 35} Officer Kazomer testified that he read Schultz the BMV Form 2255 in accordance with R.C.
{¶ 36} Finally, Schultz argues that he did not refuse the chemical test; he was simply unable to urinate.
{¶ 37} The case law addressing "refusal" has been well-settled for decades. State v. Owen (Oct. 19, 1998) Butler App. No. CA97-12-229. Specifically, in Hoban v. Rice (1971),
"[A] refusal to submit to a chemical test of the blood, breath or urine will occur where a person, by his acts, words or general conduct, manifests an unwillingness to submit to the test. Such refusal need not have been knowingly and intentionally made."
{¶ 38} Whether a driver refused a test is a factual determination that is to be made by the trial court based upon all of the evidence before it. Owen, supra; see, also, State v. Basye (Feb. 4, 1997), Ross App. No. 96CA2211. "Such a refusal may be established when the evidence shows that the person who was given the request and advice * * * had thereafter conducted himself in such a way as to justify a *14
reasonable person in the position of the requesting officer to believe that such requested person was capable of refusal and manifested unwillingness to take the test." Andrews v. Turner (1977),
{¶ 39} At trial, Officer Kazomer testified that because the second district did not have a working Breathalyzer, Schultz was offered a urine or blood test. Officer Kazomer testified: "[Schultz] was willing to [take a urine test], but then he changed his mind. Then he said he was willing to, then he said no. Then I offered him blood, a blood test, and he refused that." We find that the trial court did not err when if found that Schultz refused chemical testing.
{¶ 40} Schultz's second assignment of error is sustained in part, and overruled in part.
{¶ 42} Schultz argues that his conviction for OVI is against the manifest weight of the evidence because he did not refuse all of the field sobriety tests or the chemical test.
{¶ 43} In reviewing a claim challenging the manifest weight of the evidence, the question to be answered is whether "there is substantial evidence upon which a jury could reasonably conclude that all the elements have been proved beyond a reasonable doubt. In conducting this review, we must examine the entire record, *15
weigh the evidence and all reasonable inferences, consider the credibility of the witnesses, and determine whether the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered." (Internal quotes and citations omitted.) Leonard,
{¶ 44} Schultz was charged with operating a vehicle under the influence of alcohol under R.C.
{¶ 45} At trial, the testimony revealed that while traveling on I-71 around 6:00 a.m., Schultz's vehicle was observed by Officer Burkhardt, of the Cleveland Police Department, weaving in and out of his lane of travel. When Schultz exited the freeway at West 25th Street and Fulton Road, he approached a car stopped at the light. Officer Burkhardt testified that Schultz continued toward the stopped vehicle at a high rate of speed, and at the last minute, he hit the brakes and veered off the road, slamming into one of the crosswalk sign poles at the intersection. The pole was uprooted. Schultz traveled approximately 100 feet from the exit ramp, through the grass, until he collided with the pole.
{¶ 46} Officer Burkhardt testified that when he approached Schultz's vehicle, he detected an odor of alcohol. Further, Schultz's responses were delayed, and his speech was slurred. When asked to exit the vehicle, Schultz staggered and was *16 falling from side to side. He was placed in the back of the zone car. Officer Burkhardt testified that Schultz was unable to stand on his own.
{¶ 47} Officer Kazomer arrived on scene to assist, and he later testified that Schultz was flushed and red-nosed and had slurred speech and bloodshot eyes. He testified that Schultz smelled of alcohol and was unable to walk. Further, Schultz was rude and combative. Finally, Schultz refused field sobriety tests and then refused chemical testing.
{¶ 48} We find that there is substantial evidence upon which the trial court could reasonably conclude that all the elements have been proved beyond a reasonable doubt. Schultz's conviction for OVI is not against the manifest weight of the evidence. Accordingly, his third assignment of error is overruled.
{¶ 50} This cause is affirmed in part, reversed in part and remanded to the lower court for further proceedings consistent with this opinion.
It is ordered that appellant and appellee share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. *17
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
SEAN C. GALLAGHER, JUDGE
MELODY J. STEWART, J., CONCURS;
COLLEEN CONWAY COONEY, P.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE OPINION
"Under today's majority decision, coupled with the decision in [State v.] McGlone, [(1991),
"The legislature's intent was to deter and to punish drunk drivers, not to punish drunk radio listeners, or people who use their cars as a four-wheeled, heated hotel room. * * *"
"(A) `Equivalent offense' means any of the following:(1) A violation of division (A) or (B) of section
4511.19 of the Revised Code;(2) A violation of a municipal OVI ordinance;"* * *"(6) A violation of an existing or former municipal ordinance, law of another state, or law of the United States that is substantially equivalent to division (A) or (B) of section
4511.19 of the Revised Code;"* * *"(C) `Municipal OVI ordinance' and `municipal OVI offense' mean any municipal ordinance prohibiting a person from operating a vehicle while under the influence of alcohol, a drug of abuse, * * *."
We further note that S.B. 17, which will be effective September 27, 2008, expanded "equivalent offenses" to include operating or being in physical control of a watercraft, but again did not include being in physical control of a vehicle while under the influence.
Dissenting Opinion
{¶ 51} Respectfully, I dissent regarding the second assignment of error. I would find Schultz's prior conviction for "physical control" to be a substantially equivalent offense, just as we ruled in his appeal of a 1997 physical control conviction. See Cleveland v. Schultz (Sept. 9, 1999), Cuyahoga App. No. 74839. *18
{¶ 52} The plain language of the OVI statute uses the phrase "substantially" equivalent, not terms such as strictly equivalent, a lesser included or inferior offense, nor suggesting an exact alignment of the elements of each offense. As the Ohio Supreme Court recently stated, "Courts must avoid statutory interpretations that create absurd or unreasonable results." State v. Cabrales,
{¶ 53} I concur, however, in the majority's treatment of the remaining assignments of error. *1