[Cite as Lachowski v. Petit,
2019-Ohio-3328.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
PORTAGE COUNTY, OHIO
STEPHEN M. LACHOWSKI, : OPINION
Appellee, :
CASE NO. 2018-P-0070
- vs - :
DONALD J. PETIT, REGISTRAR, :
DEPARTMENT OF PUBLIC SAFETY,
BUREAU OF MOTOR VEHICLES,
Appellant. :
Appeal from the Portage County Court of Common Pleas, Case No. 2018 CV 00430.
Judgment: Affirmed.
Robert G. Walton, and Gretchen A. Ebner, The Law Office of Robert G. Walton, 1496
South Green Road, South Euclid, OH 44121 (For Appellee).
David Yost, Ohio Attorney General, 30 East Broad Street, 16th Floor, Columbus, OH
43215, Dale Thomas Vitale, Assistant Attorney General, and Brian R. Honen, Assistant
Attorney General, 30 East Broad Street, 26th Floor, Columbus, OH 43215 (For
Appellant).
THOMAS R. WRIGHT, P.J.
{¶1} Appellant, Donald J. Petit, Registrar of the Ohio Bureau of Motor Vehicles,
appeals the trial court’s decision reversing disqualification of Stephen M. Lachowski’s
commercial driver’s license because disqualification is not authorized. We affirm.
{¶2} The facts are undisputed.
{¶3} On January 6, 2018, Lachowski was arrested in Portage County, Ohio for
operating his personal vehicle, a 2005 Saturn, under the influence in a private parking lot.
The administrative license suspension/CDL disqualification form, completed by the officer
and admitted at the hearing, states that Lachowski failed the field sobriety tests and
refused to submit to a chemical test for alcohol and/or controlled substances. The form
also indicates that Lachowski’s driver’s license and commercial driver’s license were
seized. Lachowski signed the document agreeing that the advice on the back of the form
was read to him.
{¶4} The investigative report supplement, completed by the arresting officer and
admitted at the hearing, provides that upon the officer’s arrival at the VFW parking lot,
Lachowski was “sitting in the driver seat with the vehicle’s engine still running. …
Stephen admitted he was driving the vehicle, and as a result of his reckless driving, [his
car] got stuck in a snow bank.” He was arrested and charged with OVI, refusal, and failure
to maintain reasonable control.
{¶5} Following receipt of the disqualification form, the Ohio BMV recorded
Lachowski’s administrative license suspension under R.C. 4511.191, and it separately
began the disqualification process regarding his CDL via R.C. 4506.17.
{¶6} The administrative license suspension (ALS) of Lachowski’s regular driver’s
license, under R.C. 4511.191, was subsequently “terminated” in his related Portage
County Municipal Court criminal case. The ALS appeal hearing transcript confirms that
the prosecuting attorney agreed with Lachowski’s argument that R.C. 4511.191 did not
apply because Lachowski was on private property at the time of his OVI arrest. The trial
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court acknowledged the parties’ agreement and held that Lachowski’s “Administrative
License Appeal is granted.”
{¶7} The corresponding Ohio Bureau of Motor Vehicles ALS Court Disposition
Notification form, signed by the municipal court judge and dated February 18, 2018, states
that “the appeal was granted,” and the box is checked next to the preprinted text stating:
“ALS terminated per plea agreement, ALS reinstatement fee not to be collected.”
{¶8} The Ohio BMV notice sent to Lachowski regarding his pending CDL
disqualification states that his CDL is being disqualified for one year based on a
“conviction” for ALS/refusal based on R.C. 4506.17. Lachowski appealed the
disqualification to the Bureau arguing that neither R.C. 4511.191 nor R.C. 4506.17
applied, and as such, the disqualification of his CDL was contrary to law. He argued that
R.C. 4511.191 did not apply because he was operating his personal vehicle on private
property at the time of his OVI arrest. Lachowski also argued that R.C. 4506.17 did not
apply because a plain reading of R.C. 4506.17(B) establishes that this statute only applies
when an individual is operating or driving a commercial motor vehicle.
{¶9} Following an administrative hearing, the hearing examiner disagreed with
Lachowski’s arguments and found that because Lachowski was the “holder” of a
commercial driver’s license, R.C. 4506.17(A) applied and was the applicable implied
consent statute. She recommended a one-year disqualification of his CDL. Lachowski
objected, but Petit nevertheless adopted the hearing officer’s recommendation and
disqualified Lachowski’s CDL for one year based solely on R.C. 4506.17.
{¶10} Lachowski appealed to the court of common pleas and secured a stay of
his CDL disqualification pending appeal. Following briefing, the trial court agreed with
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Lachowski and held that the plain language of R.C. 4506.17(B) confirms that this
provision is inapplicable because he was operating his personal vehicle at the time of his
OVI arrest. Consequently, the trial court found that Petit’s order disqualifying Lachowski’s
CDL via R.C. 4506.17 was contrary to law.
{¶11} Petit appeals and raises two assigned errors, which we address collectively:
{¶12} “[1.] The trial court committed prejudicial error by holding that the plain
language in Revised Code 4506.17(B) limits the application of the Revised Code 4506.17
only to persons operating commercial vehicles. T.d. 11.
{¶13} “[2.] The trial court erred by not affirming the lawful and reasonable
application of the statute by the Registrar. T.d. 11.”
{¶14} In administrative appeals, the common pleas court reviews an agency’s
decision and assesses whether it is supported by reliable, probative, and substantial
evidence and whether it is in accordance with law. MacKnight v. Lake Cty. Dept. of
Human Serv., 107 Ohio App.3d 181, 184,
667 N.E.2d 1287 (10th Dist.1995), citing Univ.
Hosp., Univ. of Cincinnati College of Medicine v. State Emp. Relations Bd.,
63 Ohio St.3d
339,
587 N.E.2d 835, paragraph one of the syllabus (1992). Upon reviewing questions
of law, however, our review and the court of common pleas’ review is plenary. Id; R.C.
2506.04; Henley v. Youngstown Bd. of Zoning Appeals,
90 Ohio St.3d 142, 2000-Ohio-
493,
735 N.E.2d 433. Thus, we exercise our independent judgment and determine
whether the administrative order is in accordance with law. Akron v. Ohio Dept. of Ins.,
10th Dist. Franklin No. 13AP-473,
2014-Ohio-96,
9 N.E.3d 371, ¶19.
{¶15} Upon applying a statute, a court must determine and give effect to
the legislative intent of a statute, and the intent should be determined from the plain
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language of the statute. State ex rel. Solomon v. Police & Firemen's Disability & Pension
Fund Bd. of Trustees, 72 Ohio St.3d 62, 65,
647 N.E.2d 486 (1995); Stewart v. Trumbull
Cty. Bd. of Elections,
34 Ohio St.2d 129, 130,
296 N.E.2d 676 (1973).
{¶16} “When the statutory language is plain and unambiguous, and conveys
a clear and definite meaning, we must rely on what the General Assembly has
said.” Jones v. Action Coupling & Equip., Inc., 98 Ohio St.3d 330,
2003-Ohio-1099,
784
N.E.2d 1172, ¶12, citing Symmes Twp. Bd. of Trustees v. Smyth,
87 Ohio St.3d 549, 553,
721 N.E.2d 1057 (2000). When a statute is ambiguous, however, courts must employ
the rules of statutory interpretation and determine the legislative intent. Wingate v.
Hordge,
60 Ohio St.2d 55, 58,
396 N.E.2d 770 (1979).
{¶17} The at-issue statute here is R.C. 4506.17, “Alcohol and controlled
substance testing; disqualification of drivers,” which states in part:
{¶18} “(A) Any person who holds a commercial driver's license or commercial
driver's license temporary instruction permit, or who operates a commercial motor vehicle
requiring a commercial driver's license or permit within this state, shall be deemed to have
given consent to a test … for the purpose of determining the person's alcohol
concentration or the presence of any controlled substance or a metabolite of a controlled
substance.
{¶19} “(B) A test or tests as provided in division (A) of this section may be
administered at the direction of a peace officer having reasonable ground to stop or detain
the person and, after investigating the circumstances surrounding the operation of the
commercial motor vehicle, also having reasonable ground to believe the person was
driving the commercial vehicle while having a measurable or detectable amount of alcohol
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or of a controlled substance or a metabolite of a controlled substance in the person's
whole blood, blood serum or plasma, breath, or urine. Any such test shall be given within
two hours of the time of the alleged violation.
{¶20} “(C) A person requested by a peace officer to submit to a test under division
(A) of this section shall be advised by the peace officer that a refusal to submit to the test
will result in the person immediately being placed out-of-service for a period of twenty-
four hours and being disqualified from operating a commercial motor vehicle for a period
of not less than one year, and that the person is required to surrender the person's
commercial driver's license or permit to the peace officer.
{¶21} “(D) If a person refuses to submit to a test after being warned as provided
in division (C) of this section or submits to a test that discloses the presence of an amount
of alcohol or a controlled substance … the person immediately shall surrender the
person's commercial driver's license or permit to the peace officer. The peace officer shall
forward the license or permit, together with a sworn report, to the registrar of motor
vehicles certifying that the test was requested pursuant to division (A) of this section and
that the person … refused to submit to testing …. The form and contents of the report
required by this section shall be established by the registrar, by rule but shall contain the
advice to be read to the driver and a statement to be signed by the driver acknowledging
that the driver has been read the advice and that the form was shown to the driver.
{¶22} “(E) Upon receipt of a sworn report from a peace officer as provided in
division (D) of this section, or upon receipt of notification that a person has been
disqualified under a similar law of another state or foreign jurisdiction, the registrar shall
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disqualify the person named in the report from driving a commercial motor vehicle for the
period described below:
{¶23} “(1) Upon a first incident, one year[.]” (Emphasis added.)
{¶24} An administrative license suspension (ALS) under R.C. 4511.191 is distinct
from a license disqualification under R.C. 4506.17. R.C. 4511.191(G) makes it clear that
a driver may be subject to both an ALS and a disqualification for the same offense or
incident and that a disqualification runs concurrent with a license suspension when both
provisions apply. And while an ALS under R.C. 4511.191 terminates upon the individual’s
guilty plea or conviction for operating a vehicle in violation of R.C. 4511.19, a first refusal
or failed test under R.C. 4506.17 requires a one-year disqualification of the person’s CDL
regardless of the outcome of the criminal proceedings. A disqualification under R.C.
4506.17 does not hinge on or arise from a conviction. R.C. 4506.17(D).
{¶25} Because the statutory provisions here are clear, we apply them as
written. Boley v. Goodyear Tire & Rubber Co., 125 Ohio St.3d 510,
2010-Ohio-2550,
929
N.E.2d 448, ¶ 20. A plain reading of R.C. 4506.17, the only authority relied on by Petit
for disqualifying Lachowski’s CDL, compels affirmance of the trial court’s decision.
{¶26} Petit urges that because subsection (A) provides that it applies to “[a]ny
person who holds a commercial driver's license[,]” and states that any CDL holder is
deemed to have given consent, our analysis should stop there. And because Lachowski
was a CDL holder, he impliedly consented. However, subsection (A) provides no
guidance on when the statute applies. Further, we must read the statute as a whole, not
piecemeal, to ascertain its plain meaning.
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{¶27} The next subsection, subsection (B), provides that CDL holders and
persons operating a commercial vehicle are deemed to have impliedly consented to a
test when an officer has “reasonable ground[s] to stop or detain the person and, after
investigating the circumstances surrounding the operation of the commercial motor
vehicle, also having reasonable ground[s] to believe the person was driving the
commercial vehicle while having … alcohol or … a controlled substance or a metabolite
of a controlled substance in the person's” system. (Emphasis added.) Then, subsection
(C) provides that when a person, as defined in subsection (A), is “requested by a peace
officer to submit to a test” and the driver refuses, then the driver will be “disqualified from
operating a commercial motor vehicle for a period of not less than one year[.]” R.C.
4506.17(C). One cannot reach the meaning of the refusal subsection until ascertaining
who the provision applies to, as outlined in subsection (A), and when an officer can
request a driver or operator to submit to a test, as spelled out in subsection (B).
{¶28} As found by the trial court, the plain language of R.C. 4506.17(B) confirms
that a disqualification thereunder arises only when the incident involves a commercial
vehicle. The legislature’s intent that this provision only applies when a person is driving
a commercial vehicle is evident based on its decision to use words stating that the officer’s
investigation must show that incident involved a commercial motor vehicle.
{¶29} Petit’s argument that the language in R.C. 4506.17(A) evinces the
proposition that this statute applies to holders of CDLs regardless of the vehicle he or she
is operating is not supported by the statutory language. Petit’s desired, expanded
application of R.C. 4506.17 renders meaningless the language in subsection (B).
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{¶30} Thus, because Petit disqualified Lachowski’s CDL via R.C. 4506.17, and
this provision is clear, it is inappropriate to delve into the drafters’ legislative intent and
the federal regulations relied on by Petit. “[A]bsent ambiguity, a court will
not delve into legislative intent but will give effect to the plain meaning of the statute, R.C.
1.49, even when a court believes that a statute results in an unfavorable outcome. It is
the province of the legislature to gauge public sentiment and to determine what is just.”
Wright v. State, 69 Ohio App.3d 775, 781,
591 N.E.2d 1279 (10th Dist.1990).
{¶31} Accordingly, we do not consider the legislative intent and the FAA
regulations, as relied on by Petit. And to the extent that the statutory language is
inconsistent with the stated intent and any applicable federal regulations, achieving that
goal is not the function of the courts, but the legislature. Id.
{¶32} Because the undisputed facts confirm that Lachowski was driving his
personal vehicle at the time of his OVI arrest, and not a commercial vehicle, R.C. 4506.17
does not apply. And because R.C. 4506.17 was the sole authority for Petit’s
disqualification of Lachowski’s CDL for the duration of the proceedings, the
disqualification via R.C. 4506.17 is contrary to law.
{¶33} Based on the foregoing, Petit’s assigned errors lack merit, and the trial
court’s decision is affirmed.
CYNTHIA WESTCOTT RICE, J.,
MATT LYNCH, J.,
concur.
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