Maumee v. Anistik - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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OPINIONS OF THE SUPREME COURT OF OHIO
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City of Maumee, Appellant, v. Anistik, Appellee.
[Cite as Maumee v. Anistik (1994), Ohio St.3d .]
---
Where a person has been arrested for driving while under
the influence of alcohol and is requested by a police
officer to submit to a chemical test of his or her
breath, but he or she refuses to take the test, and
the reason given for the refusal is conditional,
unequivocal, or a combination thereof, we approve the
following jury instruction as set forth in 4 Ohio
Jury Instructions (1993) 405, Section 545.25(10):
"Evidence has been introduced indicating the
defendant was asked but refused to submit to a
chemical test of his [or her] breath to determine the
amount of alcohol in his [or her] system, for the
purpose of suggesting that the defendant believed he
[or she] was under the influence of alcohol. If you
find the defendant refused to submit to said test,
you may, but are not required to, consider this
evidence along with all the other facts and
circumstances in evidence in deciding whether the
defendant was under the influence of alcohol."
---
Jury instructions -- Jury instructions set forth in 4 Ohio
Jury Instructions (1993) 405, Section 545.25(10) approved
where person arrested for driving under the influence of
alcohol is requested to submit to a chemical test of
breath, but refuses to take the test, and the reason given
for the refusal is conditioned, unequivocal, or a
combination thereof.
(No. 93-981 -- Submitted March 23, 1994 -- Decided May 25,
1994.)
Certified by the Court of Appeals for Lucas County, No.
L-92-107.
On August 7, 1991, appellee, Pamela S. Anistik, was
operating an automobile when she struck the rear of a parked
truck. A city of Maumee police officer who was patrolling the
area at the time stopped to investigate the accident. Appellee

submitted to a variety of field sobriety tests. Subsequently,
appellee was arrested for operating a motor vehicle while under
the influence of alcohol and taken to the Maumee police station.
At the station, appellee was read her Miranda rights and
asked to submit to a chemical test of her breath. The
arresting officer then read appellee the standard implied
consent form. The officer advised appellee of the consequences
of a refusal to submit to a chemical test. When asked by the
officer whether there was a medical reason which would prevent
her from providing a sample of her breath, appellee responded
that she could not give a sample because of a kidney
condition. Appellee testified that she was on medication for a
kidney problem and concerned that the medication might affect
the test results. Apparently, after being assured that the
results would not be affected, appellee agreed to take the
test. However, after being denied access to the use of a
restroom, and after contacting her attorney, appellee refused
to take the breath test.
On January 22, 1992, appellee's case was tried before a
jury. The jury found appellee guilty of operating a motor
vehicle while under the influence of alcohol in violation of
Maumee Traffic Code 333.01(A)(1).
On appeal, the court of appeals concluded that the trial
judge improperly instructed the jury with respect to appellee's
refusal to take the breath test. As a result, the court of
appeals remanded the cause for a new trial. Finding its
judgment to be in conflict with the judgments of the courts of
appeals in State v. Ford (June 26, 1989), Ross App. No. 1328,
unreported; State v. Snyder (Jan. 9, 1989), Butler App. No.
CA88-04-054, unreported; and Columbus v. Fugate (Jan. 28,
1988), Franklin App. Nos. 87AP-771 and 87AP-772, unreported,
the court of appeals certified the record of the case to this
court for review and final determination.

John B. Arnsby, Municipal Prosecutor, for appellant.
The Eidy Co., L.P.A., and Sam A. Eidy, for appellee.

Douglas, J. The sole issue before this court is
whether the jury instruction given by the trial judge regarding
appellee's refusal to take a chemical test of her breath was
improper and prejudicial to appellee. The text of the
instruction objected to by appellee's counsel at trial is as
follows:
"There's been evidence in this case indicating that the
defendant Pamela Anistik was asked to submit to a chemical
analysis of her breath to determine the concentration of
alcohol in her system. While an individual has a right under
the laws of the State, as I explained to you before, to refuse
to submit to a chemical analysis of his or her breath, such
refusal may but it is not required to be considered by you as
evidence that the defendant's refusal to submit to a chemical
analysis was because the defendant believed she was under the
influence of alcohol. You may consider this evidence along
with all the other facts and circumstances in evidence if you
wish."
It is well settled that the General Assembly has authority
to establish conditions upon which licenses to operate motor

vehicles are issued in this state. Further, the General
Assembly can establish procedures and regulations suspending or
revoking this statutorily granted privilege when the interest
of public safety or welfare is at stake. See, generally, State
v. Starnes (1970), 21 Ohio St.2d 38, 50 O.O.2d 84, 254 N.E.2d
675.
The General Assembly, hoping to reduce the number of
needless tragedies caused by those who choose to drive a
vehicle while intoxicated, has enacted an "implied consent"
statute. R.C. 4511.191. This statute states that any person
who operates a vehicle upon a highway or any property, public
or private, used by the public for vehicular travel or parking
in this state "* * * shall be deemed to have given consent to a
chemical test or tests of his blood, breath, or urine for the
purpose of determining the alcohol, drug, or alcohol and drug
content of his blood, breath, or urine if arrested for
operating a vehicle while under the influence of alcohol * *
*." R.C. 4511.191(A). In Schmerber v. California (1966), 384
U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908, the United States
Supreme Court established that a state may lawfully compel a
person suspected of driving while intoxicated to submit to a
chemical test, and that such a requirement did not violate the
defendant's Fifth Amendment right against self-incrimination.
R.C. 4511.191, however, does not command that a person
suspected of driving while intoxicated be forced to submit to a
chemical test. Rather, under Ohio law, a person may refuse to
take a chemical test of his or her blood, breath, or urine.
However, if certain statutorily prescribed procedures are
complied with, such a refusal does not go unpunished. See,
e.g., R.C. 4511.191(C), (D) and (E).
With respect to the admissibility of evidence at trial of
a defendant's refusal to take a chemical test, the United
States Supreme Court has held that such evidence does not
violate the defendant's Fifth Amendment right against
self-incrimination nor the Fourteenth Amendment right to due
process. South Dakota v. Neville (1983), 459 U.S. 553, 103
S.Ct. 916, 74 L.Ed.2d 748. Similarly, this court has concluded
that under certain circumstances, evidence of a refusal to
submit to a chemical test can be used against a defendant at
trial. See Columbus v. Mullins (1954), 162 Ohio St. 419, 55
O.O. 240, 123 N.E.2d 422; and Westerville v. Cunningham (1968),
15 Ohio St.2d 121, 44 O.O.2d 119, 239 N.E.2d 40.
Appellee cites Mullins and Cunningham, supra, for the
proposition that the trial judge should not have instructed the
jury to consider her refusal to take the breath test or, "at
the very least," should have included in the instruction that
her refusal may have been based on other reasons, e.g., that
defendant refused in "good faith" to take the test. Appellant,
the city of Maumee, also cites Cunningham for support.
Appellant claims that the charge at issue given to the jury by
the trial judge was not improper or prejudicial to appellee.
In Mullins, supra, the defendant was arrested for driving
under the influence of alcohol and asked to submit to urine and
blood tests. Defendant refused to comply unless his own
physician was present or would administer the tests. The case
proceeded to trial and, over objection of defendant's counsel,
a police chemist testified as to scientific aspects of the

tests, that such tests are infallible and would be
determinative of defendant's quilt or innocence. This court
held that it was prejudicial error to admit the police
chemist's testimony because defendant's refusal was not
absolute but, rather, conditional in that it was predicated
upon his own physician being present, that such a request was
reasonable, and that there was no showing that the physician
was not available. Therefore, defendant's refusal "* * * did
not otherwise amount to such a refusal as would give counsel
for the prosecution the right to assert that the refusal
amounted to an admission of guilt, nor would it give the jury
or the court a right to so consider it." Id., 162 Ohio St. at
424, 55 O.O. at 243, 123 N.E.2d at 425.
In Cunningham, supra, the defendant was found guilty by a
jury of operating a motor vehicle while intoxicated. At trial,
defendant gave no reason for refusing to take a chemical test.
In reversing the court of appeals, and upholding defendant's
conviction, this court concluded that the defendant's
unequivocal refusal to take a chemical test for intoxication
would have probative value on the question of whether he was
intoxicated at the time, and that the admission of defendant's
refusal and comment by counsel on the refusal would not violate
defendant's Fifth Amendment privilege against
self-incrimination. In reaching this conclusion, this court
reasoned:
"Where a defendant is being accused of intoxication and is
not intoxicated, the taking of a reasonably reliable chemical
test for intoxication should establish that he is not
intoxicated. On the other hand, if he is intoxicated, the
taking of such a test will probably establish that he is
intoxicated. Thus, if he is not intoxicated, such a test will
provide evidence for him; but, if he is intoxicated, the test
will provide evidence against him. Thus, it is reasonable to
infer that a refusal to take such a test indicates the
defendant's fear of the results of the test and his
consciousness of guilt, especially where he is asked his reason
for such refusal and he gives no reason which would indicate
that his refusal had no relation to such consciousness of
guilt." (Emphasis added.) Id., 15 Ohio St.2d at 122, 44
O.O.2d at 119-120, 239 N.E.2d at 41.
In the case at bar, appellee initially refused to take the
breath test because she feared that the medication she was
taking for a kidney problem might alter the test results.
However, after being assured by the arresting officer that her
kidney medication would not affect the results, appellee agreed
to take the test. Thereafter, appellee stated that she needed
to use a restroom. Appellee was informed that before she could
have access to a restroom, she must submit to the breath test.
The arresting officer testified that he did not permit appellee
access to a restroom because, according to police procedures,
he needed to observe appellee for twenty minutes prior to
administering the chemical test to ensure that appellee did not
ingest anything. After she was denied access to a restroom,
appellee physically and verbally expressed her displeasure
(appellee was then charged with disorderly conduct), and became
uncooperative. Further, appellee contacted her attorney and,
thereafter, unequivocally refused to take the breath test.

A review of the transcript of the trial court proceedings
indicates that the situation in the case sub judice does not
fit perfectly into either a Mullins- or Cunningham-type
scenario. Nevertheless, Mullins and Cunningham are instructive
and, accordingly, we find that the jury instruction at issue
here was improper and prejudicial to appellee.
In a situation such as here, as well as a Mullins- or
Cunningham-type occurrence, an instruction by a trial judge to
a jury, with regard to a defendant's refusal to submit to a
chemical test, must not be one-sided. It is, of course,
permissible for a trial judge to instruct a jury that the
defendant's refusal to submit to a chemical test is evidence of
his or her intoxication at the time of the taking of the test.
However, the trial judge should not invade the province of the
jury. That is precisely what occurred in the instant case when
the trial judge charged the jury that they could consider the
fact that appellee refused to take the test "because the
defendant believed she was under the influence of alcohol."
The reason appellee refused to take the breath test is a
disputed issue of fact to be resolved by the jury. As is
apparent here, circumstances may exist where the refusal to
submit to a chemical test by a person suspected of driving
while under the influence of alcohol is not based on
consciousness of guilt. See, also, Columbus v. Maxey (1988),
39 Ohio App.3d 171, 530 N.E.2d 958.
Therefore, where a person has been arrested for driving
while under the influence of alcohol and is requested by a
police officer to submit to a chemical test of his or her
breath but he or she refuses to take the test, and the reason
given for the refusal is conditional, unequivocal, or a
combination thereof, we approve the following jury instruction
as set forth in 4 Ohio Jury Instructions (1993) 405, Section
545.25(10): "Evidence has been introduced indicating the
defendant was asked but refused to submit to a chemical test of
his [or her] breath to determine the amount of alcohol in his
[or her] system, for the purpose of suggesting that the
defendant believed he [or she] was under the influence of
alcohol. If you find the defendant refused to submit to said
test, you may, but are not required to, consider this evidence
along with all the other facts and circumstances in evidence in
deciding whether the defendant was under the influence of
alcohol."
In our opinion, the above instruction provides the proper
neutrality. The instruction allows the jury to weigh all the
facts and circumstances surrounding appellee's decision not to
submit to the test and the significance, if any, to attach to
her refusal.
For the foregoing reasons, we affirm the judgment of the
court of appeals and remand the cause for a new trial.
Judgment affirmed
and cause remanded.
Moyer, C.J., A.W. Sweeney, Wright, Dickinson, F.E. Sweeney
and Pfeifer, JJ., concur.
Clair E. Dickinson, J., of the Ninth Appellate District,
sitting for Resnick, J.