¶1 dissenting. Being unable to concur in the conclusions reached by the majority, I must respectfully dissent.
¶2 Statutory provisions for penalties are strictly construed even if a civil, rather than criminal, penalty be involved. A careful reading of R.C. 4511.191clearly indicates that a penalty is to be imposed only if the arrested person refuses to submit to any chemical test. While R.C. 4511.191(A) (the implied consent provision) does use the words “chemical test or tests,” R.C. 4511.191(the advice provision) utilizes the words “consequences of his refusal to submit to a chemical test designated.” Presumably, the legislature recognized the difference between the word “test” alone and the words “test or tests” used together.
¶3 More importantly, R.C. 4511.191(D) (the penalty provision) also utilizes only the word “test” alone. Any ambiguity as to meaning is clarified by the language of R.C. 4511.191(D) that: “If a person … refuses … to submit to a chemical test … no chemical test shall be given … The provision clearly states that, if there is a refusal, no chemical test shall be given. This contemplates only a single test. It is impossible to give no test after one has been given as designated by the police officer as in the case here. The request for appellant to take a second test cannot have the effect contemplated by R.C. 4511.191(D), even if there be a refusal. The statute does not contemplate a police officer’s requesting a second test where the arrested person has taken a test designated by the officer but with results differing from those desired by the officer. Such a strained construction is neither consistent with the statutory language nor a reasonable application of the plain meaning. R.C. 1.43(A) is not designed to change the meaning of a statute. R.C. 4511.191does not provide for a continuous series of tests until the officer finally is convinced the results vary from the result he desires.
¶4 However, even assuming that the officer can require a second test after the first test (without fault on the part of the arrested person) gives results differing from those the officer desires, the clear import of R.C. 4511.191(C), (D), (F) and (G) is that the arrested person be separately advised of the consequences of his failure to submit to such second test. Application of R.C. 1.43(A) would be more appropriate in this regard. There is no indication of such advice having been given in this case. Rather, the consent form contains the question: “Will you submit to the chemical test requested?” with the indicated response of “yes.” The affidavit of the officer does not reveal that appellant did submit to the first requested test but, instead, refers only to the second. This is error in the proceedings.
¶5 Accordingly, all three assignments of error should be sustained and the judgment reversed.