Barberton v. O'Conner 17 Ohio St 3d 218

CITY OF BARBERTON, APPELLEE, v. O'CONNOR, APPELLANT

No. 84-1033

Supreme Court of Ohio

17 Ohio St. 3d 218; 478 N.E.2d 803; 1985 Ohio LEXIS 342; 17 Ohio B. Rep. 452

June 5, 1985, Decided

PRIOR HISTORY: [***1] APPEAL from the Court of Appeals for Summit County.

Appellant, Paul O'Connor, was arrested on January 23, 1983 and given an Ohio Uniform Traffic Ticket charging him with "DWI in violation of Sec. No. 333.01 Cod. Ord. of Barberton." A copy of an Alcohol Influence Report Form was filed in the Barberton Municipal Court with the ticket. An Alcohol Influence Report Form is a form upon which the Barberton Police record a defendant's condition after he has been arrested for an alcohol-related offense. Part of the information recorded on the form is supplied by the defendant, and the remainder consists of observations made by the police. The January 23, 1983 Alcohol Influence Report Form indicated appellant admitted having "3 or 4, 5 or 6" beers on the night of his arrest. It also indicated he had the "strong" odor of alcohol on his breath. Appellant was asked to submit to a breathalyzer test and he refused.

The deputy clerk of the Barberton Municipal Court requested a copy of appellant's driving record from the Bureau of Motor Vehicles. When received, it revealed that appellant had a history of committing traffic offenses.

On January 29, 1983, attorney Mark H. Ludwig entered [***2] his appearance as counsel for appellant. On March 18, 1983, a pretrial conference was held and it is undisputed defense counsel was provided with the discovery information that he had requested. On April 13, 1983, appellant, by and through his counsel, pled no contest to the charge of "DWI in violation of Sec. No. 333.01 Cod. Ord. of Barberton." Appellant was found guilty, fined $ 200 and costs, sentenced to three days in jail and had his driver's license suspended for three years.

On May 30, 1983, appellant was arrested again and given an Ohio Uniform Traffic Ticket charging him with "DWI in violation of Sec. No. 333.01A Cod. Ord. of Barberton." Again, a copy of an Alcohol Influence Report Form was filed in municipal court with the ticket. The report indicated that appellant had the "strong" odor of alcohol on his breath. On June 4, 1983, attorney Ludwig entered a plea of not guilty on behalf of appellant. On July 20, 1983, a pretrial was held. On August 17, 1983, appellant appeared in court with his attorney and changed his plea to no contest. He was found guilty, fined $ 400 and costs, sentenced to six days in jail, and ordered "to bring in license plates and registration [***3] to all vehicles in his name."

Appellant's conviction and sentence in both cases were consolidated and he appealed them to the Court of Appeals for Summit County. In the appellate court he argued that the two Uniform Traffic Tickets that were issued to him did not apprise him of the nature of the offense with which he was charged. Essentially, appellant argued he did not know if he had been accused of driving while intoxicated by alcohol, or drugs, or both. He contends that since he did not know the substance of the charges, he could not adequately defend himself. The appellate court held that while the tickets could have provided appellant with more information with respect to the offenses charged, they adequately notified him that he had been charged with driving while intoxicated by alcohol. The judgments of the trial court were affirmed.

This cause is now before this court pursuant to the allowance of a motion to certify the record.

DISPOSITION: Judgment affirmed.

CASE SUMMARY

CORE TERMS: ticket, influence of alcohol, traffic, prosecutor, ordinance, driving, alcohol, physical control, combined, advise, concentration, intoxicated, reasonable attempt, bill of particulars, simplicity, complied, vague, gram

LexisNexis® Headnotes Hide Headnotes

Criminal Law & Procedure > Criminal Offenses > Vehicular Crimes > Driving Under the Influence > General Overview

Evidence > Judicial Notice > Laws of Foreign States

Criminal Law & Procedure > Criminal Offenses > Vehicular Crimes > General Overview

Criminal Law & Procedure > Accusatory Instruments > Complaints > General Overview

Criminal Law & Procedure > Criminal Offenses > Vehicular Crimes > Driving Under the Influence > General Overview

Criminal Law & Procedure > Accusatory Instruments > Complaints > General Overview

Criminal Law & Procedure > Discovery & Inspection > Bills of Particulars > Procedure

HEADNOTES

Traffic laws -- Uniform Traffic Ticket properly charges offense, when -- Ticket describes offense as "DWI" and refers to ordinance -- Traf. R. 3(C) and Crim. R. 7(E), construed.

SYLLABUS

1. A Uniform Traffic [***4] Ticket properly charges the defendant with an offense when it describes the nature of the offense as "DWI" and makes reference to the ordinance that gives rise to the offense, even if it does not indicate the substance that caused the defendant to be intoxicated. (Traf. R. 3[C], construed and applied.)

2. A Uniform Traffic Ticket effectively charges an offense even if the defendant has to make some reasonable inquiry in order to know exactly what offense is charged. Such inquiry should be made before trial by filing a request for a bill of particulars. (Traf. R. 3[C] and Crim. R. 7[E], construed and applied.)

COUNSEL: James A. Merlitti, assistant prosecuting attorney, for appellees.

Cole Co., L.P.A., and Mark H. Ludwig, for appellant.

JUDGES: DOUGLAS, J. CELEBREZZE, C.J., SWEENEY, LOCHER, HOLMES, C. BROWN and WRIGHT, JJ., concur.

OPINION BY: DOUGLAS

OPINION

[*220] [**804] The issue presented in this case is whether an Ohio Uniform Traffic Ticket properly charges the defendant with an offense when it describes the nature of the offense as "DWI" and makes reference to the ordinance that gives rise to the citation, but when it does not indicate the substance that [***5] caused the defendant to be intoxicated.

On January 23, 1983, appellant was charged with "DWI in violation of Sec. No. 333.01 Cod. Ord. of Barberton." At that time Sec. No. 333.01 read ¹:

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

1 Despite the fact that this case turns on an application of Barberton Codified Ordinance Sec. No. 333.01 and 333.01(a), neither party provided this court with a copy of these provisions. Therefore, pursuant to Crim. R. 57(B) and Civ. R. 44.1(A)(2), this court attempted to locate these provisions in various law libraries, including this court's library. When that search failed to produce the provisions in question, this court contacted the assistant prosecutor handling this case (pursuant to Crim. R. 57[B] and Civ. R. 44.1[A][2]) and requested him to: (1) provide to this court copies of the provisions as they were in effect on January 23, 1983 and May 30, 1983; and (2) to certify to this court that he served a copy of the requested ex parte communication on opposing counsel. The assistant prosecutor complied with these requests and instructions.

^HN1While this court "may" take judicial notice of a municipal ordinance within the state of Ohio, pursuant to Civ. R. 44.1(A)(2), it was not required to do so in this case.

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

[***6] [**805] "DRIVING OR PHYSICAL CONTROL WHILE UNDER THE INFLUENCE; EVIDENCE.

"(a) No person who is under the influence of alcohol or any drug of abuse, or the combined influence of alcohol and any drug of abuse, shall operate any vehicle within the Municipality. ( ORC 4511.19)

"(b) No person who is under the influence of alcohol or any drug of abuse, or the combined influence of any drug of abuse, shall be in actual physical control of any vehicle within the Municipality. * * *"

On May 30, 1983, appellant was charged with "DWI in violation of Sec. No. 333.01A Cod. Ord. of Barberton." At that time Sec. No. 333.01 read:

"DRIVING OR PHYSICAL CONTROL WHILE UNDER THE INFLUENCE; EVIDENCE.

"(a) Operation Under Influence. No person shall operate any vehicle within the Municipality if any of the following applies:

"(1) The person is under the influence of alcohol or any drug or [sic] abuse, or the combined influence of alcohol and any drug of abuse;

"(2) The person has a concentration of ten-hundredths of one percent or more by weight of alcohol in his or her blood;

"(3) The person has a concentration of ten-hundredths of one gram or more by weight of alcohol [***7] per 210 liters of his or her breath; or [*221] "(4) The person has a concentration of fourteen-hundredths of one gram or more by weight of alcohol per 100 milliliters of his or her urine. * * *"

Appellant contends that the January 23, 1983 ticket did not advise him whether he had been charged with driving under the influence of alcohol, drugs, or both, and/or being in physical control of a vehicle while under the influence of alcohol, drugs or both. Appellant claims the ticket was so vague that it failed to charge him with an offense as required by Traf. R. 3(C).

Appellant contends that the May 30, 1983 ticket did not advise him whether he had been charged with driving under the influence of alcohol, drugs, or both. Again, appellant claims that the ticket was so vague that it failed to charge him with an offense as required by Traf. R. 3(C).

^HN2The purpose of the Ohio Traffic Rules is, in large part, to ensure "simplicity and uniformity in procedure * * *." (Emphasis added.) Traf. R. 1(B). Simplicity in procedure does not mean unfairness in procedure, or indifference to the rights of the prosecution or the defense. It means that traffic court procedure is not controlled [***8] by the stricter, more elaborate rules that govern procedures in more serious cases. Cf. Youngstown v.. Starks (1982), 4 Ohio App. 3d 269, 271. Therefore, a complaint prepared pursuant to Traf. R. 3 simply needs to advise the defendant of the offense with which he is charged, in a manner that can be readily understood by a person making a reasonable attempt to understand. Cleveland v.. Austin (1978), 55 Ohio App. 2d 215, 219 [9 O.O.3d 368].

Given the facts in this case, we find it inconceivable that appellant did not know he had been charged with driving while intoxicated by alcohol. A copy of an Alcohol Influence Report Form was filed with each ticket. Given appellant's familiarity with the traffic court system, he should have immediately understood the significance of those reports. If he did not immediately understand, his lawyer should have immediately understood. If neither of them understood, they should have made [**806] some reasonable attempt to understand. They made no such attempt.

If appellant did not understand exactly what he had been charged with, he could have informally asked the prosecutor to amend the complaint so as to charge a more [***9] specific offense. As a practical matter, there is a possibility the prosecutor would have complied with appellant's informal request. If he would have refused to comply, appellant could have requested that the prosecutor furnish him "with a bill of particulars setting up specifically the nature of the offense charged and * * * the conduct of defendant alleged to constitute the offense." Crim. R. 7(E). This would have required the prosecutor to correct any prejudicial defects in the complaint.

Appellant never attempted to have any defects in the complaint corrected. Instead, he pled "no contest" to the charges set forth in the two [*222] complaints. Then, after he was convicted and sentenced, he claimed for the first time that he had not been properly charged with an offense.

We find appellant's contentions unpersuasive and hold that ^HN3a Uniform Traffic Ticket properly charges the defendant with an offense when it describes the nature of the offense as "DWI" and makes reference to the ordinance that gives rise to the offense, even if it does not indicate the substance that caused the defendant to be intoxicated. A Uniform Traffic Ticket effectively charges an offense [***10] even if the defendant has to make some reasonable inquiry in order to know exactly what offense is charged. Such inquiry should be made before trial by filing a request for a bill of particulars.

For the foregoing reasons, the judgment of the court of appeals is affirmed.

Judgment affirmed.