THE STATE OF OHIO, APPELLANT, v. WILSON, APPELLEE.
No. 2020-0721
Supreme Court of Ohio
September 14, 2022
2022-Ohio-3202
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State v. Wilson, Slip Opinion No. 2022-Ohio-3202.]
NOTICE
This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.
SLIP OPINION NO. 2022-OHIO-3202
THE STATE OF OHIO, APPELLANT, v. WILSON, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State v. Wilson, Slip Opinion No. 2022-Ohio-3202.]
(No. 2020-0721—Submitted June 16, 2021—Decided September 14, 2022.)
APPEAL from the Court of Appeals for Hamilton County, No. C-190281, 2020-Ohio-1584.
I. FACTS AND PROCEDURAL HISTORY
{¶ 1} The parties do not dispute the facts of this case. During the night of February 13 through early February 14, 2018, appellee, Katherine Wilson, and three of her friends were up late and were thrown out of one of the friends’ house by the friend‘s parent. They then decided to sleep in a car parked near the house. Wilson occupied the driver‘s seat and, because it was cold outside, turned the car on and ran the heater. That is how the four friends were discovered hours later, all asleep, by a police officer responding to a call from a concerned neighbor. There was no evidence that Wilson had moved the car that morning. But because she was in the driver‘s seat while the car was running and her license was suspended at the time due to a prior conviction for operating a vehicle while under the influence of alcohol or drugs (“OVI”), the officer cited her for driving under a suspended license. Though the ticket had indicated a violation of
{¶ 2} Despite there being no evidence that Wilson had moved the car, the trial court found her guilty of driving under an OVI suspension, sentenced her to three days in jail, and imposed a $250 fine. The trial court stayed execution of Wilson‘s sentence pending her appeal of the conviction.
{¶ 3} The First District Court of Appeals reversed Wilson‘s conviction. 2020-Ohio-1584, 154 N.E.3d 208, ¶ 28. It noted that this court had twice defined “operation of a motor vehicle” as a person‘s being in the driver‘s position of a vehicle while having possession of the ignition key. Id. at ¶ 8-9, citing State v. Cleary, 22 Ohio St.3d 198, 199, 490 N.E.2d 574 (1986), and State v. Gill, 70 Ohio St.3d 150, 154, 637 N.E.2d 897 (1994). And it noted that under
{¶ 4} We accepted the state‘s discretionary appeal to consider the following issue:
In proving whether a defendant has violated the law by operating a motor vehicle under one of the suspensions set forth in
R.C. 4510 , whether the definition of the term “operate” is governed byR.C. 4511.01(HHH) or this Court‘s interpretation of the term as set forth in State v. Cleary and its progeny.
II. STANDARD OF REVIEW
{¶ 5} This case concerns a question of statutory interpretation, which we review de novo. See State v. Pountney, 152 Ohio St.3d 474, 2018-Ohio-22, 97 N.E.3d 478, ¶ 20.
III. ANALYSIS
{¶ 6} Wilson was convicted of driving under an OVI suspension, in violation of
{¶ 7} No provision in the Revised Code directly answers this question. Nothing in
{¶ 8} In 1986, before any definition of the term “operate” existed in the Revised Code, this court was tasked with determining the meaning of that term in the context of an OVI offense under
Th[e] [OVI] statute has been reviewed and amended over the years and the General Assembly continues to adhere to the word “operate.” Therefore, the prohibition contained in the statute is against “operating” a vehicle while under the influence, not merely “driving” it. The term “operating” encompasses a broader category of activities involving motor vehicles than does “driving.” Many jurisdictions have found that a person may operate a vehicle even though the vehicle is not moving. Operation of a motor vehicle within contemplation of the statute is a broader term than mere driving and a person in the driver‘s position in the front seat with the ignition key in his possession indicating either his actual or potential movement of the vehicle while under the influence of
alcohol or any drug of abuse can be found in violation of R.C. 4511.19(A)(1) .
Id. at 199. “Such a broad definition” of “operate,” we explained, was “essential to achieve the legislative purpose of the statute, discouraging those who have consumed too much alcohol from undertaking the operation of motor vehicles.” Id. at 200. We later clarified that in OVI cases in which the vehicle‘s engine was not running but the keys were in the ignition, the definition from Cleary applied. See Gill, 70 Ohio St.3d 150, 637 N.E.2d 897, at syllabus; see also State v. McGlone, 59 Ohio St.3d 122, 570 N.E.2d 1115 (1991), syllabus.
{¶ 9} Approximately a decade after our decision in Gill, in 2002, the General Assembly enacted through Am.Sub.S.B. No. 123, 149 Ohio Laws, Part II, 3001 (“S.B. 123”), the new offense of “[h]aving physical control of [a] vehicle while under the influence,”
{¶ 10} Thus, today, the definition of “operate” in
{¶ 11} In Marlington, 122 Ohio St.3d 12, 2009-Ohio-1360, 907 N.E.2d 706, a student was molested by another student on a moving school bus, prompting the former‘s guardians to sue the school district, a school official, and the bus driver. Id. at ¶ 3-6. A key issue we considered was whether the school district‘s alleged failure to supervise the students constituted “negligent operation of a motor vehicle within the meaning of
{¶ 12} We determined in Marlington that the plaintiffs’ reliance on Cleary‘s broad definition of the term “operate” was “misplaced,” because Cleary involved an OVI offense under a prior version of
{¶ 13} The common definition of “operate,” when viewed in the context of what is being operated, also persuades us that Wilson did not operate the vehicle. The Oxford English Dictionary defines the word “operate” as “[t]o cause or actuate the working of; to work (a machine, etc.).” Oxford English Dictionary 848 (2d Ed.1989). And although there are many machines that can be “operated” without their being moved, the particular function of a “motor vehicle” is to move and provide transportation on roads. See
{¶ 14} It is also persuasive that
{¶ 15} Finally, overusing the expanded definition of “operate” from Cleary and Gill might lead to a finding of criminal conduct when there was none. For
instance,
{¶ 16} The dissenting opinion criticizes our view as “effectively overrul[ing]” Cleary and Gill and accuses us of engaging in legislation to apply
{¶ 17} We thus conclude that the plain-language definition of “operating” a vehicle (the purpose of which is transportation) involves movement. This is consistent with
{¶ 18} Though the definition of “operate” in
IV. CONCLUSION
{¶ 19} In order for a person whose license is suspended for an OVI offense to be guilty of driving under an OVI suspension, the person must be in more than mere physical control of a motor vehicle. The person must cause or have caused movement of the motor vehicle on the public roads or highways within this state during the period of the suspension. We affirm the judgment of the First District Court of Appeals vacating Wilson‘s conviction.
Judgment affirmed.
DONNELLY and STEWART, JJ., concur.
FISCHER, J., concurs in judgment only, with an opinion.
O‘CONNOR, C.J., dissents.
DEWINE, J., dissents, with an opinion joined by KENNEDY, J.
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FISCHER, J., concurring in judgment only.
{¶ 20} I concur in the court‘s judgment, but I would not go as far as to say that the definition of the term “operate” in
{¶ 21} First, this court‘s decisions in State v. Cleary, 22 Ohio St.3d 198, 490 N.E.2d 574 (1986), superseded by statute as stated in Doe v. Marlington Local School Dist. Bd. of Edn., 122 Ohio St.3d 12, 2009-Ohio-1360, 907 N.E.2d 706, and State v. Gill, 70 Ohio St.3d 150, 637 N.E.2d 897 (1994), are not mandatory or persuasive authority in this case because their holdings did not apply to
{¶ 22} That same reasoning does not apply to situations involving sober people whose licenses have been suspended for operating a vehicle while under the influence of alcohol or drugs (“OVI”). Nor does it apply to situations involving individuals whose licenses have been suspended for other reasons. Yet those individuals are likewise prohibited from “operating” a motor vehicle under
{¶ 23} As Justice Pfeifer recognized in his dissent in Gill, interpreting the term “operate” to include a person‘s running a vehicle without moving it would prevent sober people whose licenses have been suspended from using their vehicles to listen to the radio or as a “four-wheeled, heated hotel room.” Gill at 157-158 (Pfeifer, J., dissenting). It seems unlikely that this was the General Assembly‘s intent.
{¶ 24} Eight years after this court decided Gill, the General Assembly enacted S.B. 123, which defined “operate” under
{¶ 25} S.B. 123 also created the new offense of “having physical control of a vehicle while under the influence,” which is codified at
{¶ 26} The state points out that S.B. 123 created the
{¶ 27} While we cannot assume that the General Assembly acted inadvertently and rewrite an unambiguous statute, we may examine the General Assembly‘s actions to determine its intent. Regarding the law at issue in this case, the General Assembly enacted only one definition of “operate.” That definition requires movement of the vehicle. Rather than assume the General Assembly intended two definitions (one express, one implied) to apply to the same word within the same bill, I would infer that the General Assembly intended the definition of “operate” to apply throughout the bill. There is no evidence that the General Assembly intended any other definition to apply, and the General Assembly did not enact any other definition.
{¶ 28} Further evidence of the General Assembly‘s intent is the fact that the section is titled “driving under OVI suspension” and the offense is called the same within the actual text of the statute. (Emphasis added.)
{¶ 29} I accordingly concur in judgment only.
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DEWINE, J., dissenting.
{¶ 30} The question in this case is what does it mean to “operate” a car? Does a person who runs the engine of a car operate the car? Or does one actually have to drive a car to operate it?
{¶ 31} Under the ordinary meaning of the word, one operates a car by engaging its engine. While the words “operate” and “drive” may possess overlapping usages, one can operate a car without driving it. And in this case, our precedent and statutory context reinforce that the ordinary usage of the word “operate” is the correct one.
{¶ 32} The lead opinion, though, concludes otherwise. It says that a person who engages the engine of a car is not operating the car for purposes of an Ohio statute,
{¶ 33} I disagree—so I dissent.
{¶ 34} One February morning, a police officer responded to a call about a suspicious vehicle. He discovered Katherine Wilson and three friends asleep in a car parked on a public street. Wilson was in the driver‘s seat, the key was in the ignition, the engine of the car was running, and the heater was on. The four apparently had been asked to leave a party at a house on the street and decided to sleep in the car.
{¶ 35} Wilson‘s driver‘s license had previously been suspended for operating a motor vehicle while intoxicated (“OVI”). As a result, she was charged with and convicted of operating a motor vehicle while under an OVI suspension in violation of
II. Analysis
{¶ 36} This case presents a question of law: Does
A. The Ordinary Meaning of “to Operate” a Motor Vehicle
{¶ 37} Start with the ordinary meaning of “operate.” The verb “to operate” and its various conjugates—operates, operated, operating, operator, operation—appear in the Ohio Revised Code thousands of times across hundreds of chapters. In some instances, a statute defines the meaning of operate, see, e.g.,
{¶ 38} Webster‘s Dictionary provides several definitions of “operate.” See Webster‘s Third New International Dictionary 1580-1581 (1986). The most relevant for our purposes is “to cause to function usually by direct personal effort.” Id. at 1581. The example it uses for this definition is “to operate a car.” Id. The Random House Dictionary provides a similar definition: “[T]o work or use a machine, apparatus, or the like.” Random House Dictionary of the English Language 1357 (2d Ed.1987); see also Shorter Oxford English Dictionary 2005 (5th Ed.2002) (“Cause or direct the functioning of; control the working of (a machine etc.)”).
{¶ 39} Plugging that ordinary meaning into the statute at hand, Wilson‘s use of her car constituted operation. By engaging the engine, Wilson caused the car to function. No doubt, a car‘s primary operation is transportation. But cars function in additional ways, too, such as by playing music, producing an electric charge (think jumper cables), and, as applicable here, heating and cooling. All of these are ways in which a person might operate a car without driving it.
{¶ 40} Indeed, it is significant that the General Assembly chose to criminalize the operation of a vehicle while under an OVI suspension, not simply the driving of a vehicle. The legislature‘s choice of verb—operate, not drive—strongly suggests that operation does not require movement. “Drive,” the lead opinion correctly observes,
B. Context and Caselaw Reinforce that the Ordinary Meaning of Operate Applies
{¶ 41} Rather than apply the ordinary meaning, the lead opinion adopts a statutory definition of operate that by its own terms applies only to other chapters of the Revised Code. See
{¶ 42} The statutory definition was enacted after this court in several decisions construed what it meant to “operate” a motor vehicle. In State v. Cleary, a police officer found a man who was drunk and passed out in the driver‘s seat of his running car, which was parked outside of a bar. 22 Ohio St.3d 198, 198, 490 N.E.2d 574 (1986), superseded by statute as stated in Doe v. Marlington Local School Dist. Bd. of Edn., 122 Ohio St.3d 12, 2009-Ohio-1360, 907 N.E.2d 706. This court held that “[e]ntering a motor vehicle, putting the key in the ignition[,] and starting and engaging the engine in a stationary position are sufficient acts to constitute operation within the meaning of
{¶ 43} This court further broadened its construction of operate in consolidated cases in which police found each defendant drunk and sleeping in the driver‘s seat of his motor vehicle. State v. Gill, 70 Ohio St.3d 150, 151, 637 N.E.2d 897 (1994). In each case, the ignition key to the vehicle was in the ignition but the engine was not running. Id. One of the lower courts had attempted to distinguish Cleary by drawing a line between having the keys in the ignition and having the engine running. Gill at 151, 155. But this court rejected that construction of operate and held that placing the key in the ignition, without starting the car, sufficed to trigger
{¶ 44} One can certainly question the logic of Gill: it is doubtful that anyone in common parlance would refer to someone sitting in a parked car with the engine off as operating the car. And the legislature ultimately responded. It enacted legislation that split what had previously been considered an OVI offense into two separate crimes. It created a statutory definition of operate for purposes of the OVI statute that defined the word to mean “to cause or have caused movement of a vehicle.” Am.Sub.S.B. No. 123, 149 Ohio Laws, Part II, 2467, 2951, codified at
{¶ 45} The legislature could have applied the new definition of operate to the operation-of-a-vehicle-under-an-OVI-suspension offense. But it chose not to do so. The new definition of operate applies only “[a]s used in [
{¶ 46} There are all kinds of problems with this approach. Most notably, it is inconsistent with the express intent of the General Assembly. We “presume that the General Assembly is fully aware of any prior judicial interpretation of an existing statute when enacting an amendment.” Clark v. Scarpelli, 91 Ohio St.3d 271, 278, 744 N.E.2d 719 (2001). Thus, not only was the General Assembly aware of the definition of operation set forth by this Court in Gill and Cleary, but it was also aware that the definition had been regularly applied to operating-while-under-suspension offenses. See, e.g., State v. Ewing, 6th Dist. Erie No. E-94-39, 1995 Ohio App. LEXIS 1650, *6-8 (Apr. 21, 1995); State v. Silva, 12th Dist. Warren No. CA95-10-100, 1996 Ohio App. LEXIS 1811, *3-7 (May 6, 1996); State v. Peters, 2d Dist. Montgomery No. 20574, 2005-Ohio-3658, ¶ 33-34; State v. Cochran, 2d Dist. Montgomery No. 22240, 2008-Ohio-3612, ¶ 23-27; Dayton v. Ahmad, 2d Dist. Montgomery No. 24165, 2011-Ohio-2302, ¶ 56-59.
{¶ 47} Aware of this precedent, the General Assembly “made a considered judgment to retain the relevant statutory text” in
{¶ 48} The lead opinion nevertheless implicitly amends the language in
{¶ 49} If it is ever permissible for us to rewrite a statute simply because we believe the legislature made a mistake, such a power is reserved for the rarest of the rare cases—ones in which it is indisputable that some technical error occurred in the drafting process. See Sturges v. Crowninshield, 17 U.S. 122, 202-203, 4 L.Ed. 529 (1819) (Marshall, C.J.) (“if, in any case, the plain meaning of a provision * * * is to be disregarded, because we believe the framers of that instrument could not intend what they say, it must be one in which the absurdity and injustice of applying the provision to the case, would be so monstrous, that all mankind would, without hesitation, unite in rejecting the application”); United States v. X-Citement Video, Inc., 513 U.S. 64, 82, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994) (Scalia, J., dissenting) (“any ‘scrivener‘s error’ doctrine” requires “the meaning genuinely intended
{¶ 50} In addition to being inconsistent with the legislation enacted by the General Assembly, the court‘s action is contrary to principles of stare decisis. The statutory amendment was explicit that the new definition of operate applies only as the word is “used in [
{¶ 51} This flips on its head the principle that precedent that “involves statutory interpretation” is owed greater stare decisis effect than other sources of law, because the legislature can always amend a statute in light of a court‘s construction. Rocky River v. State Emp. Relations Bd., 43 Ohio St.3d 1, 6, 539 N.E.2d 103 (1989); see also Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406, 52 S.Ct. 443, 76 L.Ed. 815 (1932) (Brandeis, J., dissenting). Here, the legislature had a prime opportunity to amend the statute but chose not to, even though it was amending other sections of the Revised Code. Yet the court refuses to give stare decisis effect to our precedent.
{¶ 52} The lead opinion strives mightily to get around the precedent problem posed by Cleary and Gill. Those cases, it announces, are not controlling because the court there interpreted the OVI statute “and this is not an OVI case.” Lead opinion at ¶ 16. That distinction, however, is fanciful. There is no language in Cleary or Gill that limits their application to the OVI statute.
{¶ 53} Indeed, the crime of OVI consists of the following elements: (1) operating, (2) “any vehicle,” (3) “within this state,” (4) while “under the influence of alcohol” or drugs.
C. Precious Little
{¶ 54} The lead opinion‘s interpretation of the statute flies in the face of plain meaning. It is contrary to the intention of the legislature as demonstrated by its enactments. And it defies principles of stare
{¶ 55} The lead opinion finds it “persuasive” that
{¶ 56} The lead opinion tries to hinge its result on public policy. It suggests that the broad definition of operate may criminalize innocent conduct, leading to “[un]just and [un]reasonable results.” Lead opinion at ¶ 15. And certainly one can debate the pros and cons of a broad definition of operate. Is it fair to punish someone with an OVI license suspension for merely sleeping off their intoxication in a running car? On the other hand, shouldn‘t we be worried about someone with a history of driving drunk being one gear-shift away from endangering others?
{¶ 57} But those kinds of judgments are best left to the General Assembly, not to this court. Indeed, the history here demonstrates exactly why those kinds of public-policy considerations are reserved for the General Assembly. In enacting
{¶ 58} This court, though, does not have the institutional competence to make such policy judgments. Nor do we have the capability to institute the kind of calibrated legislative response that the legislature enacted by separating the physical-control offense from the OVI offense. And this is precisely why we should stick to our job and leave policymaking and legislating to the General Assembly.
III. Conclusion
{¶ 59} Because Wilson operated her vehicle, I respectfully dissent.
KENNEDY, J., concurs in the foregoing opinion.
Andrew W. Garth, Cincinnati City Solicitor, William T. Horsley, Cincinnati City Prosecuting Attorney, and Jonathon Vogt and Meagan D. Woodall, Assistant Prosecuting Attorneys, for appellant.
Raymond T. Faller, Hamilton County Public Defender, and David Hoffmann, Assistant Public Defender, for appellee.