OPINIONS OF THE SUPREME COURT OF OHIO
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The State of Ohio, Appellant, v. Gill, Appellee.
City of Sylvania, Appellee, v. Robinson, Appellant.
[Cite as State v. Gill (1994), Ohio St.3d .]
Motor vehicles -- Operating a motor vehicle while under
the influence of alcohol -- Interpretation of the word
"operate" as that term is used in R.C. 4511.19 --
Intoxicated person in driver's seat of parked vehicle with
key in ignition and engine not running is in violation of
R.C. 4511.19(A)(1) and (3).
---
A person who is in the driver's seat of a motor vehicle
with the ignition key in the ignition and who, in his or
her body has a prohibited concentration of alcohol, is
"operating" the vehicle within the meaning of R.C. 4511.19
whether or not the engine of the vehicle is running.
(State v. Cleary [1986], 22 Ohio St.3d 198, 22 OBR 351,
490 N.E.2d 574; State v. McGlone [1991],
59 Ohio St.3d
122,
570 N.E.2d 1115, applied and followed.)
---
(Nos. 93-1098 and 94-38 --- Submitted May 10, 1994 --
Decided August 31, 1994.)
Certified by the Court of Appeals for Franklin County, No.
92AP-945.
Certified by the Court of Appeals for Lucas County, No.
L-93-197.
Case No. 93-1098
The relevant facts of this case are not in dispute. In
March 1992, appellee, Bradley A. Gill, was found sleeping in
the driver's seat of his motor vehicle by two police officers.
At the time, the vehicle was parked in an Ohio State University
parking lot with the radio on and the ignition key in the
ignition. The key was turned to the "ACC" position, which was
the opposite direction than that required to start the engine.
After submitting to a variety of field sobriety tests, Gill was
placed under arrest. He was taken to the Ohio State University
police station and given a breath test, which resulted in a
reading of .159.
Gill was charged, inter alia, with having a prohibited
concentration of alcohol in his body in violation of R.C.
4511.19(A)(3). Gill entered a plea of not guilty in the
Franklin County Municipal Court and, following a bench trial,
was found guilty of the offense. He was sentenced and fined.
Upon appeal, the Court of Appeals for Franklin County
reversed the judgment of the trial court. The court of appeals
held that Gill was not "operating" a motor vehicle within the
meaning of R.C. 4511.19. Finding its judgment to be in
conflict with the judgment of the court of appeals in State v.
Clark (Oct. 8, 1991), Gallia App. No. 90CA25, unreported, the
court of appeals certified the record of the case to this court
for review and final determination.
Case No. 94-38
On December 14, 1992, two park rangers found appellant,
Noble Robinson, in his motor vehicle parked at the Secor
Metropark, Lucas County, Ohio. Robinson was in the driver's
seat of his vehicle slumped over the steering wheel and had
passed out. The ignition key to the vehicle was in the
ignition, but the motor was not running. Robinson was taken to
the Ohio State Highway Patrol station. A breath test was
administered to Robinson and resulted in a reading of .192.
Robinson was charged in the Sylvania Municipal Court with
operating a motor vehicle while intoxicated in violation of
R.C. 4511.19(A)(1) and (3). Subsequently, Robinson filed a
motion to dismiss the charges against him, alleging that he did
not "operate" his motor vehicle. Following a hearing, the
trial court denied Robinson's motion to dismiss. Subsequently,
Robinson entered a plea of no contest and was found guilty of
the offenses. He was then sentenced and fined.
Upon appeal, the Court of Appeals for Lucas County
affirmed the judgment of the trial court. Finding its judgment
to be in conflict with the judgment of the court of appeals in
State v. Gill (Dec. 8, 1992), Franklin App. No. 92AP-945,
unreported, the court of appeals certified the record of the
case to this court for review and final determination.
Case Nos. 93-1098 and 94-38 have been consolidated for
purposes of final determination.
Ronald J. O'Brien, City Attorney, David M. Buchman, City
Prosecutor, and Brenda J. Keltner, Assistant City Prosecutor,
for appellant in case No. 93-1098.
Daniel J. Igoe, for appellee in case No. 93-1098.
Robert A. Pyzik, Chief Prosecutor, for appellee in case
No. 94-38.
Mollenkamp & Fisher and John B. Fisher, for appellant in
case No. 94-38.
Daniel D. Connor Co., L.P.A., and Daniel D. Connor, urging
affirmance for amicus curiae, Central Ohio Association of
Criminal Defense Lawyers, in case No. 93-1098.
Douglas, J. The principal issue presented by these
cases involves an interpretation of the word "operate," as that
term is used in R.C. 4511.19. Specifically, we are asked to
determine whether a person can be found in violation of R.C.
4511.19(A)(1) and (3) where the person is found intoxicated and
in the driver's seat of a parked vehicle with the ignition key
in the ignition and the vehicle's engine not running.
R.C. 4511.19(A)(1) and (3) provide: "No person shall
operate any vehicle, streetcar, or trackless trolley within
this state, if any of the following apply: (1) The person is
under the influence of alcohol, a drug of abuse, or alcohol and
a drug of abuse; …. (3) The person has a concentration of
ten-hundredths of one gram or more by weight of alcohol per two
hundred ten liters of his breath[.]" (Emphasis added.)
In State v. Cleary (1986), 22 Ohio St.3d 198, 22 OBR 351,
490 N.E.2d 574, paragraphs one and two of the syllabus, this
court held that:
"1. Operation of a motor vehicle within the contemplation
of R.C. 4511.19(A) is a broader term than driving and a person
in the driver's position in the front seat of the vehicle with
the key in the ignition while under the influence of alcohol or
any drug of abuse can be found in violation of the statute.
"2. Entering 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 R.C. 4511.19(A)(1)." (Emphasis added.)
In Cleary, the defendant had parked his automobile in the
parking lot of a King Kwik store. He was found asleep in the
driver's seat with the motor running. We held that the
defendant's conduct was proscribed by R.C. 4511.19(A)(1) and
stated that:
"While this section deals with the prohibition against
driving while under the influence and much of the literature
and discussion on the subject refer to 'driving,' that word and
'operating' are not synonymous. This 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 the 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)."
(Emphasis added.) Id. at 199, 22 OBR at 352,
490 N.E.2d at 575.
Similarly, in State v. McGlone (1991), 59 Ohio St.3d 122,
570 N.E.2d 1115, syllabus, we held that "[a]n intoxicated
person who is in the driver's seat of a motor vehicle parked on
private or public property with the key in the ignition is
operating the vehicle in violation of R.C. 4511.19(A)(1)."
(Emphasis added.) The defendant in McGlone was found asleep
behind the wheel of his car with the motor running in a
driveway of a private residence. We concluded that the trial
court erred in granting the defendant's motion to dismiss and
reasoned that: "R.C. 4511.19 is not only directed to those who
drive on public streets. It prohibits the operation of a motor
vehicle anywhere in the state while the driver is under the
influence of drugs or alcohol. We agree with the dissent's
observation in the court of appeals that: '[i]f you are under
the influence [of alcohol or drugs], don't drive or put
yourself in a position of control of a vehicle. If you do, you
pay the penalty.'"
Id. at 124,
570 N.E.2d at 1117.
Gill (case No. 93-1098) and Robinson (case No. 94-38)
propose that Cleary and McGlone are distinguishable from their
situations in that the defendants in Cleary and McGlone were
found in their vehicles with the engines running. Gill and
Robinson suggest that such a distinction is critical and, based
on the fact that the engines to their vehicles had not been
started, they could not have violated R.C. 4511.19.
Gill and Robinson have applied an improper reading of
Cleary and McGlone. Those decisions were intended to establish
that if a person is found intoxicated in the driver's seat of a
parked vehicle with the ignition key in the ignition, the
person is guilty of violating the statute. Our holdings in
Cleary and McGlone were never intended to require the state to
prove that the defendant had started the vehicle's engine after
consuming alcohol or that the engine was running at the time
the defendant is apprehended. A clear purpose of R.C 4511.19
is to discourage persons from putting themselves in the
position in which they can potentially cause the movement of a
motor vehicle while intoxicated or under the influence of any
drug of abuse. Accord Cleary and McGlone, supra. Prohibition
of potentially harmful conduct need not await occurrence of the
act. As we, in effect, held in Cleary, the intent of the
legislature in enacting strong legislation involving drinking
and driving was to say, "If you drink -- do not drive. If you
drive -- do not drink!" The cases from this court on the
subject have, for good reason, carried out this legislative
intent.
The gravity of the problem of driving while intoxicated is
revealed by the number of needless tragic injuries and deaths
that occur annually on the roadways in this state.
Accordingly, we hold that a person who is in the driver's seat
of a motor vehicle with the ignition key in the ignition and
who, in his or her body has a prohibited concentration of
alcohol, is "operating" the vehicle within the meaning of R.C.
4511.19 whether or not the engine of the vehicle is running.
Turning to the specific cases before us, it makes no
difference that the engines of the motor vehicles were not
running. In each case, the defendant was intoxicated and in
the driver's seat of his vehicle with the key in the ignition.
That being so, Gill and Robinson were in violation of the
statute. Cleary and McGlone, supra.
As a final matter, Gill (case No. 93-1098) contends that
the officers did not have sufficient articulable facts to
justify an investigative inquiry and to eventually arrest him.
Although this issue was raised in the court of appeals, the
appellate court found that the issue was moot, given its
determination that Gill was not operating his vehicle within
the meaning of the statute. However, given our findings supra,
it is appropriate for us to now consider this issue.
We find that the trial court did not err in determining
that the officers, under the circumstances, were warranted in
investigating the situation and, based on their investigation,
to arrest Gill. The record supports such a conclusion. While
on foot patrol at approximately 1:00 a.m. in an Ohio State
University parking lot, the officers noticed a vehicle parked
with its headlights lit,1 the radio on and Gill asleep in the
driver's seat. The officers also noticed a strong odor of
alcohol emanating from Gill. He was awakened, given a variety
of field sobriety tests and then arrested. Under these
circumstances, the officers' initial investigation was
reasonable and the arrest proper.
Based on the foregoing, in case No. 93-1098, we reverse
the judgment of the court of appeals. We affirm the judgment
of the court of appeals in case No. 94-38.
Judgments accordingly.
Moyer, C.J., A.W. Sweeney, Reader and F.E. Sweeney, JJ.,
concur.
Wright and Pfeifer, JJ., dissent.
W. Don Reader, Jr., J., of the Fifth Appellate District,
sitting for Resnick, J.
FOOTNOTE:
1 Gill contests the police officers' assertion that the
headlights to his vehicle were on.
Pfeifer, J., dissenting. The result in this case
illustrates that this court has gone too far in defining what
constitutes operation of a motor vehicle for purposes of Ohio's
drunk driving statute. Here, Bradley Gill did drink too much
-- but that in itself is not a crime. His actions after
drinking too much were responsible, and there is room under
R.C. 4511.19 for someone who acts responsibly to avoid being
charged with a crime. There is not enough room under R.C.
4511.19, especially given our rules of statutory construction
of criminal laws, to allow for the summary conviction of a
person for dozing in a parked car.
"Generally, each 'drunken driving' case is to be decided
on its own particular and peculiar facts." (Emphasis sic.)
Mentor v. Giordano (1967), 9 Ohio St. 2d 140, 146,
38 O.O.2d
366, 370,
224 N.E.2d 343, 348. The majority's decision moves
Ohio law further away from that seemingly unassailable
statement. The majority creates an irrebuttable presumption
that if a person is found in the driver's seat of an automobile
with the key in the ignition, but the motor is not running,
that person violates R.C. 4511.19(A)(3). Such evidence should
create, at most, a rebuttable presumption that a person is
operating a vehicle in violation of the statute.
This court recognized that the question of operation is a
matter for the trier of fact, even if the automobile's motor is
running, in State v. Cleary (1986), 22 Ohio St. 3d 198, 22 OBR
351,
490 N.E.2d 574, when it held, in paragraph one of the
syllabus, that "a person in the driver's position in the front
seat of the vehicle with the key in the ignition while under
the influence of alcohol or any drug of abuse can be found in
violation of the statute." (Emphasis added.) Thus, the Cleary
court did not state that such factors must yield a conviction,
but only that they can do so. In the second paragraph of the
syllabus of Cleary, 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 R.C.
4511.19(A)(1)." (Emphasis added.) Again, this court recognized
that such evidence was sufficient to support a conviction, but
stopped well short of holding that such evidence compels a
conviction.
Only in State v. McGlone (1991), 59 Ohio St.3d 122,
570
N.E.2d 1115, syllabus, did this court adopt, possibly
mistakenly, what is essentially an irrebuttable presumption
that "[a]n intoxicated person who is in the driver's seat of a
motor vehicle parked on private or public property with the key
in the ignition is operating the vehicle in violation of R.C.
4511.19(A)(1)." McGlone concerned basically the same facts as
Cleary -- a sleeping, intoxicated driver in a vehicle with its
motor running -- except that it took place on private
property. Instead of simply expanding Cleary to apply to
similar instances which occur on private property, the very
short McGlone opinion, which cites only Cleary as authority,
perhaps inadvertantly makes the overbroad statement that the
majority feels bound by in this case. McGlone should be
modified to be consistent with Cleary, and to hold that such
acts are sufficient evidence to support a conviction under the
statute.
This court should not lose sight of the intent of Ohio's
drunk driving statutes. They are at heart quite clearly
designed to keep the state's roadways safe from intoxicated
drivers. As this court held in Giordano:
"The primary purpose of statutes and ordinances making it
an offense to operate a motor vehicle while under the influence
of intoxicating liquor is to protect the users of streets and
highways from the hazard of vehicles under the management of
persons who have consumed alcoholic beverages to such an extent
as to appreciably impair their faculties." Id. at paragraph
five of the syllabus.
The majority makes the oft-repeated statement that
"operation of a motor vehicle within the contemplation of the
statute is a broader term than mere driving." This court has
never defined, however, how broad the term "operation" is or
what factors should be considered to determine its breadth.
Since the obvious intent of the statute is to keep intoxicated
drivers off the roadway, the definition of "operation" ought to
reflect that. For purposes of the statute, operating a motor
vehicle should include driving, attempting to drive, or
possessing an immediate intent to drive a motor vehicle.
Consistent with Cleary, evidence of a key in the ignition
with the motor running could certainly be sufficient to prove
operation, e.g., that the person did drive or possessed an
immediate intent to drive the motor vehicle. A key in the
ignition should rise to the level of a rebuttable presumption
of operation. Other factors relevant to operation could
include whether the motor is running, whether the person is
asleep or awake, and the location of the vehicle, including all
the circumstances relating to how it arrived there. See Hiegel
v. State (Ind. App. 1989), 538 N.E.2d 265.
Triers of fact should have determined the question of
operation in both of these companion cases. Bradley Gill did
have his key in the ignition of his car. However, he was
asleep behind the wheel, his motor was not running, and the
automobile was in the same place he had parked it before he
visited the bars in the area. Gill was with friends, and it is
possible that they could have testified that he returned to the
car to sleep and to wait for the designated driver in the group
to drive him home.
Noble Robinson was also found intoxicated with his key in
the ignition of his vehicle. He was asleep and his motor was
not running. There was no evidence which corroborated
Robinson's claim that he was sober when he drove into Secor
Metropark.
The outcomes of these two cases might be quite different
from each other were they to go to juries. Certainly each
defendant deserves the chance to rebut the presumption that
they either were driving while intoxicated or had the immediate
intent to do so.
As we interpret drunk driving statutes, we must keep in
mind that we are interpreting criminal statutes. The rule of
statutory construction is that criminal statutes shall be
construed against the state and liberally construed in favor of
the accused. R.C. 2901.04(A). Certainly, the majority does not
follow that statutory mandate. Also, "[a] criminal statute
must be sufficiently definite to give notice of the required
conduct to one who would avoid its penalties …." Boyce
Motor Lines v. United States (1952), 342 U.S. 337, 340,
72 S.
Ct. 329, 330,
96 L.Ed. 367, 371. R.C 4511.19 certainly is not
sufficiently definite to inform people that they may not listen
to their car radio while intoxicated, when they possess no
immediate intent to drive the vehicle. Drunk driving is a "hot
button" issue, but not so hot that the rules of statutory
construction do not apply to intoxicated persons.
Under today's majority decision, coupled with the decision
in McGlone, the following scenario can occur: A married couple
has the neighbors over for a barbecue. Everyone enjoys a few
cold alcoholic beverages with dinner. The wife looks at her
watch, and realizes that the Indians game has probably reached
the ninth inning. A rabid fan, she runs to the car, which is
parked in her own driveway, and turns the ignition key to
activate the car radio. She sits on the driver's seat as Herb
Score describes the game-winning home run: "It's going, going,
gone!" She turns and sees her reflection in the sunglasses of
the dutiful city police officer as he says,"You're gone too,
ma'am -- to the slammer!"
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. The question
of operation under the drunk driving statute ought to be a jury
question of whether the accused was, or intended to be, a
driver.
It is clear that we cannot depend on prosecutors to
prosecute only in those instances when the defendant is thought
to have recently driven or is about to drive. The assistant
prosecutor in the Gill case admitted that she would prosecute a
drunk driving charge even if she were certain that the
automobile had not been driven by the intoxicated person. That
seems to me to be highly inappropriate prosecutorial
discretion. It is evident that some prosecutors do not care
about enforcing the spirit of the statute, but are merely
concerned with getting convictions.
Prohibition is over. It is not illegal to purchase
alcohol, or to drink it to excess, as long as you do not
infringe on the rights of others. Under today's decision, you
are just as guilty if you decide to "sleep it off" for the
night as you are if you try to drive home. The choice for
intoxicated people, then, is whether to be a "sitting duck" in
an area highly patrolled by police, or to be a moving target.
Unfortunately for all of us, many people will choose to take to
the highway.
Wright, J., concurs in the foregoing dissenting opinion.
