COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73046 CITY OF SHAKER HEIGHTS, : : JOURNAL ENTRY Plaintiff-Appellant : : AND vs. : : : OPINION SCOTT GREENFELDER, : : Defendant-Appellee : : : : : : DATE OF ANNOUNCEMENT OF DECISION: JULY 16, 1998 CHARACTER OF PROCEEDING: Criminal appeal from Shaker Heights Municipal Court Case No. 97-TRC-02120A JUDGMENT: REVERSED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: GARY R. WILLIAMS Chief Prosecutor City of Shaker Heights 3400 Lee Road Shaker Heights, Ohio 44120 For Defendant-Appellee: KENNETH A. BOSSIN 330 Standard Building 1370 Ontario Street Cleveland, Ohio 44113-1701 -2- JUDGE TERRENCE O'DONNELL: The City of Shaker Heights appeals from a judgment of the Shaker Heights Municipal Court which vacated the administrative license suspension of Scott Greenfelder's driver's license for his refusal to submit to a breath test following his arrest for driving while under the influence of alcohol. The city contends that Greenfelder refused to submit to chemical testing pending advice of counsel and maintains that as an arrestee he may not, after speaking with counsel, recant a refusal and choose to take the test within two hours of his arrest. After a careful review of the controlling case authority on this issue, we are constrained to reverse the judgment of the trial court and reinstate Greenfelder's license suspension. The record in this case reveals that on February 18, 1997, at 10:11 p.m., Shaker Heights Patrolman Emory Clark stopped Scott Greenfelder for peeling his tires from a traffic light, and upon approaching the vehicle he ordered Greenfelder to perform some field sobriety tests, which he failed. Clark then arrested him for driving while under the influence of alcohol. After transporting Greenfelder to the police station, Officer Clark explained to him that R.C. 4511.191 required him to submit to a breath test or face an automatic one year suspension of his driver's license. At that time, Greenfelder asked to speak with his girlfriend, Kim Dolin, an attorney, before deciding whether or not to submit to the test. Officer Clark claims Greenfelder declined to take the breath test on advice of counsel, and at 10:54 -3- p.m. he filled out the Administrative License Suspension form indicating Greenfelder's refusal; Greenfelder disputes this, claiming he instructed Dolin to have an attorney contact the police department because he did not know whether to refuse the test. After speaking with Greenfelder, Dolin phoned William Truax, a Columbus attorney, and left instructions with his answering service to contact the Shaker Heights Police Department regarding Greenfelder's arrest. At 11:26 p.m., Truax received the message. He phoned Dolin, and then called the Shaker Heights Police Department, and after speaking with Greenfelder, informed Officer Clark that Greenfelder would rescind any previous refusal and would consent to take the breath test. Officer Clark, however, responded that although he could have administered the test within two hours of Greenfelder's arrest, he would not do so because Greenfelder had already refused and Clark had already completed the paperwork. The City of Shaker Heights, therefore, instituted the administrative license suspension on this basis, and Greenfelder appealed that suspension to the Shaker Heights Municipal Court. The court heard the matter on briefs and affidavits submitted by the parties and vacated the administrative license suspension on the basis of an affidavit from Dolin that she never held herself out to the police as Greenfelder's attorney. The city now appeals from this order and presents two assignments of error, which we will consider jointly. They state: I. -4- THE TRIAL COURT ABUSED ITS DISCRETION BY OVERTURNING DEFENDANT-APPELLEE'S ALS BASED UPON O.R.C. 2935.20 AND THE COURT'S CONCLUSION THAT THE PERSON WHOM DEFENDANT- APPELLEE CALLED NEVER IDENTIFIED HERSELF AS AN ATTORNEY. II. THE TRIAL COURT ABUSED ITS DISCRETION BY GRANTING DEFENDANT-APPELLEE'S ALS APPEAL AND DENYING THE SUSPENSION WHEN THERE WAS NO EVIDENCE THAT HE RETRACTED HIS REFUSAL OR RETRACTED SAID REFUSAL IN A TIMELY MANNER. The city asserts the trial court abused its discretion by vacating Greenfelder's administrative license suspension, because it claims he refused to submit to the breath test. Greenfelder maintains he never refused the test, but rather, asked to consult with an attorney because he did not know if he should do so; and after his attorney called from Columbus, the police informed him he would not be permitted to take the test. The issue for our determination, then, is whether the court erred in vacating the administrative license suspension where Greenfelder declined to take the breath test pending advice from his counsel; and, after speaking with his attorney, but within two hours of his arrest, requested the opportunity to take the test. R.C. 4511.191(D)(1) provides for suspension of a driver's license for failure to submit to a chemical test for alcohol, provided the following four conditions are met: (i) That the officer had reasonable grounds to believe that, at the time of the arrest, the arrested person was operating a vehicle * * * while under the influence of alcohol * * * ; (ii) That the person was arrested and charged with operating a vehicle while under the influence of alcohol * * * ; -5- (iii) That the officer asked the person to take the designated chemical test, advised the person of the consequences of submitting to the chemical test or refusing to take the chemical test * * * (iv) That the person refused to submit to the chemical test * * * In Dobbins v. Bureau of Motor Vehicles (1996), 75 Ohio St.3d 533, the court affirmed a suspension in a case in which police denied an arrestee the opportunity to consult privately with her attorney before consenting, in violation of the statutory right to counsel pursuant to R.C. 2935.20, and stated at 540: By refusing to submit to the test contingent on receiving the advice of counsel, the arrestee has, for the purposes of the implied consent statute, R.C. 4511.191, refused to take the chemical alcohol test. In the case of In re Brooks (1971), 27 Ohio St.2d 66, the court considered the situation in which the arrestee first refused to consent to a breath test, but approximately one half hour later indicated he changed his mind and wished to take the test, stating in its syllabus: 1. The time limitation in R.C. 4511.19, restricting the admission in evidence of the result of chemical tests * * * for concentration of alcohol to those tests made * * * within two hours * * * is only a restriction on the admission in evidence of the results of such tests, and does not have the effect of extending the time within which an arrested person may choose to submit or refuse to submit to a chemical test under the provisions of R.C. 4511.191(D). 2. The suspension * * * for refusing, upon request of a police officer, to submit to a chemical test for alcohol, is not precluded by the fact that after such refusal, but within two hours of the alleged driving violation, the motorist stated that he would submit to the test. In this case, the record reflects that following his arrest and after being advised of the consequences of refusing to submit -6- to a breath test, Greenfelder declined to take the test pending advice from his attorney. After he spoke with his lawyer, William Truax, but within two hours of his arrest, Greenfelder agreed to take the test, but the police were unwilling to administer it to him. According to In re Brooks, supra, however, this does not preclude the administrative suspension of his operator's license. Although this result appears to violate a basic right of citizens to consult with counsel in connection with an important legal matter, we recognize that a license to operate a motor vehicle in the State of Ohio is a privilege, not a right. Furthermore, the court in Dobbins, supra, relying on Schmerber v. California (1966), 384 U.S. 757, and United States v. Wade (1967), 388 U.S. 218, stated at 537: * * * the right to counsel associated with the protection against self-incrimination contained in the Fifth Amendment to the United States Constitution, or as guaranteed by the Sixth Amendment, does not apply to the stage at which the officer requested the chemical test for alcohol content. After noting that the suspension of a driver's license pursuant to R.C. 4511.191 is civil and administrative in nature, and after recognizing that police violated Dobbins' statutory right to counsel as provided in R.C. 2935.20, the court held nonetheless that when an arrestee refuses to submit to the blood-alcohol content test until after effectively speaking with an attorney, the arrestee remains subject to license suspension. Accordingly, in this case we are constrained to reverse the judgment of the Shaker Heights Municipal Court and reinstate the administrative license suspension. -7- Judgment accordingly. -8- Reversed and administrative license suspension reinstated. It is, therefore, considered that said appellant recover of said appellee costs herein. It is ordered that a special mandate e sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. ANN DYKE, P.J., JAMES D. SWEENEY, J., CONCUR JUDGE TERRENCE O'DONNELL N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .