City of Oregon v. Szakovits

291 N.E.2d 742, 32 Ohio St. 2d 271, 61 Ohio Op. 2d 496, 1972 Ohio LEXIS 395

• Court: Ohio Supreme Court
• Decided: December 15, 1972
• Docket: Nos. 72-158 and 72-301
• Status: Published

Opinions

Per Curiam.

The issue in each case is whether a warrantless arrest for operating a motor vehicle while under the influence of alcohol is illegal, if the operation of the vehicle is not actually viewed by the arresting officer.

R. C. 2935.03 states that “A . . . police officer shall arrest and detain a person found violating a law of this state, or an ordinance of a municipal corporation, until a warrant can be obtained.”

In each case, appellant claims that the officer, before arrest, should1 have either obtained a warrant or viewed the actual operation of the vehicle.

Appellees, in effect, maintain that under the facts in each of these cases, police officers may legally arrest without a warrant. We agree.

The third paragraph of the syllabus in Mentor v. Giordano (1967), 9 Ohio St. 2d 140, states:

“Although a charge of operating a motor vehicle while under the influence of intoxicating liquor may apply where a stationary vehicle is involved, the evidence must show beyond a reasonable doubt that the accused was under the influence of intoxicating liquor while operating the vehicle in that condition.”

This court reversed the conviction in Mentor. There is, however, a clear distinction between the facts in these eases and Mentor. In that case, the vehicle was parked on a private lot behind a church, away from the traveled roadway. Three other people were present inside the vehicle when the officer arrived. A passenger testified that he had been the driver, and not the defendant. There was no indication how long the vehicle had been parked. At page 146 in Mentor, the following appears:

“Chronology is an important element in ‘drunken driving’ cases. A relationship must be established between the time there was evidence to show the influence of intoxicants and the time of operating a vehicle. . ..

“Generally, each ‘drunken driving’ case is to be decided on its oion particular and peculiar facts. ...”

The facts in each of the instant cases show that an accident occurred on a public street and that both appellants were injured. While at the scene, both voluntarily admitted to driving the vehicles. There was no question of appellants being visibly under the influence of alcohol.

After viewing the scene of the accident, and hearing appellants’ admissions on a first-hand basis, the officers could reasonably conclude that each had been operating’ his vehicle shortly before the officers arrived. Coupled with the fact that appellants were obviously under the influence, the officers properly found each to have been violating an ordinance of the respective municipal corporations prohibiting driving while under the influence of alcohol

In case No.. 72-158, appellant maintains that the trial court should have granted his motion to suppress the evidence of his Breathalyzer test because (1) his arrest was illegal, and (2) no warrant was ever issued, citing Mapp v. Ohio (1961), 367 U. S. 643, and Wong Sun v. United States (1963), 371 U. S. 471.

Although we have heretofore concluded that appellant’s arrest was valid, attention is directed to R, C. 4511.-191 which reads, in part, as follows;

“Any person who operates a motor vehicle upon the public highways in this state shall be deemed to have given consent to a chemical test or tests of Ms blood, breath, or urine for the purpose of determining the alcoholic content of his blood if arrested for the offense of driving while under the influence of alcohol. The test or tests shall be administered at the direction of a police officer having reasonable grounds to believe the person to have been driving a motor vehicle upon the public highways in this state while, under the influence of alcohol. . .(Emphasis supplied.)

In Schmerber v. California (1966), 384 U. S. 757, defendant was arrested for drunken driving following an accident in which he had apparently been one of the drivers. At the hospital, where defendant was taken, police directed a physician to administer a chemical test to determine defendant’s blood-alcohol content. Defendant objected to the test. The court held that there was no unreasonable search, stating, at page 771; “Given these special facts, we conclude that the attempt to secure evidence of blood-alcohol content in this case was an appropriate incident to petitioner^ arrest.”

See, also, Piqua v. Hinger (1968), 15 Ohio St. 2d 110, which held blood-alcohol tests to be real or physical evidence, not protected by the constitutional privilege against self-incrimination. Therefore, the Breathalyzer test was not subject to the exclusionary rule on such basis.

Y7 e affirm the conviction in each ease.

Judgments affirmed,

O’Neiix, C. J., Schneider, Herbert, Stern, Leach and Brown, JJ., concur. Corrigan, J., dissents.