The opinion
[This opinion has been published in Ohio Official Reports at 76 Ohio St.3d 455.]
THE STATE OF OHIO, APPELLEE, v. HOCHHAUSLER ET AL., APPELLANTS.
[Cite as State v. Hochhausler, 1996-Ohio-374.]
Motor vehicles—Traffic laws—Driving while intoxicated—Administrative license
suspension provisions of R.C. 4511.191 do not violate right to procedural
due process—“No stay” provision of R.C. 4511.191(H)(1) is
unconstitutional and severable from rest of statute—R.C. 4511.195
unconstitutional as applied to owner of vehicle seized and immobilized
because the vehicle was being operated by a third person when that person
was arrested on a drunk-driving charge.
1. The administrative license suspension provisions of R.C. 4511.191 do not
violate the right to procedural due process.
2. The “no stay” provision of R.C. 4511.191(H)(1) is unconstitutional as a
violation of the doctrine of separation of powers and is severable from the
rest of the statute.
3. R.C. 4511.195 is unconstitutional as applied to the owner of a vehicle that
has been seized and immobilized because the vehicle was being operated
by a third person when that person was arrested on a drunk-driving charge.
(No. 95-1365—Submitted February 7, 1996—Decided July 30,1996.)
APPEAL from the Court of Appeals for Warren County, Nos. CA93-12-104 and
CA93-12-105.
__________________
{¶ 1} On December 3, 1993, appellant Thomas J. Hochhausler was arrested
and charged with his second offense within five years of driving while intoxicated
in violation of R.C. 4511.19(A). Hochhausler’s consent to a breath-alcohol test
resulted in a reading of .105 grams of alcohol by weight per two hundred ten liters
of breath. Pursuant to R.C. 4511.191(F)(2), the police immediately placed
SUPREME COURT OF OHIO
Hochhausler under an administrative license suspension (“ALS”) for a period of
one year.
{¶ 2} At the time of the arrest, Hochhausler was driving a Ford pick-up
truck owned by appellant Omni Fireproofing, Inc. (“Omni”). Omni is a closely
held corporation in which Hochhausler is the president and majority shareholder.
The vehicle was seized and the license plates were impounded pursuant to R.C.
4511.195.
{¶ 3} On December 9, at his initial appearance before the trial court,
Hochhausler entered a plea of not guilty and made the following motions: (1) to
dismiss the ALS on the ground that the suspension violated the Ohio and United
States Constitutions; (2) to appeal the ALS pursuant to R.C. 4511.191(H)(1); and
(3) to stay the ALS pending appeal. An employee of Omni also appeared at the
hearing and moved the trial court to release the seized vehicle pursuant to R.C.
4511.195(C)(2)(a). Subsequently, on December 14, the trial court denied all four
motions.
{¶ 4} On December 16, Hochhausler appealed the denial of his motions to
the Twelfth District Court of Appeals, arguing that R.C. 4511.191(H)(1)
unconstitutionally infringes upon both the doctrine of separation of powers by
denying jurisdiction to any court to stay an ALS suspension, and the right to
procedural due process by failing to provide a prompt and meaningful
postdeprivation hearing. Likewise, on December 20, Omni appealed the denial of
its motion to regain possession of its motor vehicle, arguing that R.C. 4511.195
violates the right to procedural due process.
{¶ 5} The court of appeals affirmed the judgment of the trial court, holding
that R.C. 4511.191(H)(1) and 4511.195 do not violate the Due Process Clauses of
the Ohio and United States Constitutions. Further, the court of appeals interpreted
the “no stay” provision of R.C. 4511.191(H)(1) as “merely prohibiting a municipal
court, county court, mayor’s court or other court of original jurisdiction from
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staying a license suspension imposed under R.C. 4511.191(E) or (F) pending an
ALS appeal.” In order to preserve the constitutionality of the statute, the court of
appeals interpreted the “no stay” provision as not precluding a court of appeals or
the Ohio Supreme Court from staying an administrative license suspension pending
appeal. Finally, the court of appeals reversed the dismissal of Hochhausler’s ALS
appeal and remanded the cause for a hearing on the ALS pursuant to R.C.
4511.191(H). Both Hochhausler and Omni appealed the adverse judgments to this
court.
{¶ 6} This cause is now before this court upon the allowance of a
discretionary appeal.
__________________
Timothy A. Oliver, Warren County Prosecuting Attorney, Carolyn A.
Duvelius, Assistant Prosecuting Attorney; Betty D. Montgomery, Attorney General,
Jeffery S. Sutton, State Solicitor, Susan E. Ashbrook and Andrew S. Bergman,
Assistant Attorneys General, for appellee.
Rittgers & Mengle, W. Andrew Hasselbach and Charles H. Rittgers, for
appellants.
Baker & Hostetler, Richard W. Siehl and Anthony J. Franze, urging
affirmance for amicus curiae, Mothers Against Drunk Driving.
Baker & Hostetler, William W. Falsgraf and Shilpa Shah, urging affirmance
for amicus curiae, American Alliance for Rights and Responsibilities.
James M. Looker, urging reversal for amicus curiae, Ohio Association of
Criminal Defense Lawyers.
Gump & Slyman Co., L.P.A., Jeffrey D. Slyman and Dennis E. Gump, urging
reversal for amicus curiae, Ohio Academy of Trial Lawyers.
__________________
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MOYER, C.J.
{¶ 7} In this case, we are asked to determine several issues relating to the
constitutionality of R.C. 4511.191 and 4511.195.
{¶ 8} It is a well-settled rule that an Act of the General Assembly is entitled
to a strong presumption of constitutionality. Arnold v. Cleveland (1993), 67 Ohio
St.3d 35, 616 N.E.2d 163. Moreover, challenged legislation will not be invalidated
unless the challenger establishes the unconstitutional nature of the statute beyond a
reasonable doubt. Hilton v. Toledo (1980), 62 Ohio St.2d 394, 396, 16 O.O. 3d
430, 431, 405 N.E.2d 1047, 1049. We apply these principles to both appeals.
I
R.C. 4511.191—Procedural Due Process
{¶ 9} Hochhausler argues that the administrative suspension of his driver’s
license pursuant to R.C. 4511.191(F) is unconstitutional because the statute permits
the suspension to occur without due process of law.
{¶ 10} R.C. 4511.191(F) provides:
“Upon receipt of the sworn report of an arresting officer completed and sent
to the registrar and a court pursuant to divisions (D)(1)(c) and (D)(2) of this section
in regard to a person whose test results indicate that his blood contained a
concentration of ten-hundredths of one per cent or more by weight of alcohol, his
breath contained a concentration of ten-hundredths of one gram or more by weight
of alcohol per two hundred ten liters of his breath, or his urine contained a
concentration of fourteen-hundredths of one gram or more by weight of alcohol per
one hundred milliliters of his urine at the time of the alleged offense, the registrar
shall enter into his records the fact that the person’s driver’s or commercial driver’s
license or permit or nonresident operating privilege was suspended by the arresting
officer under division (D)(1)(a) of this section and the period of the suspension, as
determined under divisions (F)(1) to (4) of this section. The suspension shall be
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January Term, 1996
subject to appeal as provided in this section and shall be for whichever of the
following periods that applies:
“(1) If the person has not been convicted, within five years of the date the
test was conducted of a violation of section 4511.19 of the Revised Code, * * * the
period of the suspension or denial shall be ninety days.
“(2) If the person has been convicted, within five years of the date the test
was conducted, of one violation of a statute or ordinance described in division
(F)(1) of this section, the period of the suspension or denial shall be one year.
“(3) If the person has been convicted, within five years of the date the test
was conducted, of two violations of a statute or ordinance described in division
(F)(1) of this section, the period of the suspension or denial shall be two years.
“(4) If the person has been convicted, within five years of the date the test
was conducted, of more than two violations of a statute or ordinance described in
division (F)(1) of this section, the period of the suspension or denial shall be three
years.”
{¶ 11} R.C. 4511.191(H)(1) permits a person to appeal the administrative
license suspension at the initial appearance on the underlying DUI charge, which
must be held within five days of arrest. Division (H)(1) further provides that the
only issues that may be raised in an ALS appeal are:
“(a) Whether the law enforcement officer had reasonable ground to believe
the arrested person was operating a vehicle * * * while under the influence * * * or
with a prohibited concentration of alcohol in the blood, breath, or urine and whether
the arrested person was in fact placed under arrest;
“(b) Whether the law enforcement officer requested the arrested person to
submit to the chemical test * * *;
“(c) Whether the arresting officer informed the arrested person of the
consequences of refusing to be tested or of submitting to the test;
“(d) Whichever of the following is applicable:
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SUPREME COURT OF OHIO
“(i) Whether the arrested person refused to submit to the chemical test
requested by the officer;
“(ii) Whether the chemical test results indicate that [the arrestee’s blood,
breath, or urine contain alcohol in excess of the statutory limits.]” R.C.
4511.191(H)(1)(a) through (d).
{¶ 12} Due process under the Ohio and United States Constitutions
demands that the right to notice and an opportunity to be heard must be granted at
a meaningful time and in a meaningful manner where the state seeks to infringe a
protected liberty or property interest. Greene v. Lindsey (1982), 456 U.S. 444, 102
S.Ct. 1874, 72 L.Ed.2d 249; Boddie v. Connecticut (1971), 401 U.S. 371, 378, 91
S.Ct. 780, 786, 28 L.Ed.2d 113; Williams v. Dollison (1980), 62 Ohio St.2d 297,
299, 16 O.O. 3d 350, 351, 405 N.E.2d 714, 716. However, the concept of due
process is flexible and varies depending on the importance attached to the interest
and the particular circumstances under which the deprivation may occur. Walters
v. Natl. Assn. of Radiation Survivors (1985), 473 U.S. 305, 320, 105 S.Ct. 3180,
3189, 87 L.Ed.2d 220, 232.
{¶ 13} It is well settled that the Due Process Clause applies to the
suspension or revocation of a driver’s license. Dixon v. Love (1977), 431 U.S. 105,
112, 97 S.Ct. 1723, 1727, 52 L.Ed.2d 172, 179-180; Bell v. Burson (1971), 402
U.S. 535, 539, 91 S.Ct. 1586, 1589, 29 L.Ed.2d 90, 94; Maumee v. Gabriel (1988),
35 Ohio St.3d 60, 518 N.E.2d 558. Accordingly, we proceed to determine whether
the procedural safeguards provided by R.C. 4511.191 are sufficient to comply with
the requirements of due process.
{¶ 14} In Mackey v. Montrym (1979), 443 U.S. 1, 99 S.Ct. 2612, 61 L.Ed.2d
321, the United States Supreme Court addressed the issue of what process is due to
protect an individual against an erroneous deprivation of the property interest in a
driver’s license. The Mackey court used the three-pronged balancing test set forth
in Mathews v. Eldridge (1976) 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18. Although
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January Term, 1996
we have previously applied the Mathews test in determining that an administrative
suspension of a driver’s license does not violate due process when a postsuspension
hearing is provided, Gabriel, 35 Ohio St.3d at 62-63, 518 N.E.2d at 561-562, the
statute at issue here requires an independent application of the Mathews test. The
test requires the consideration of the following factors:
“First, the private interest that will be affected by the official action; second,
the risk of an erroneous deprivation of such interest through the procedures used,
and the probable value, if any, of additional or substitute procedural safeguards;
and finally, the Government’s interest, including the function involved and the
fiscal and administrative burdens that the additional or substitute procedural
requirement would entail.” (Emphasis added.) Mathews at 335, 96 S.Ct. at 903,
47 L.Ed.2d at 33.
The Mathews Test Applied
Private Interest
{¶ 15} Applying the first prong of the Mathews test to Hochhausler’s
argument, it is easily determined that the private interest at issue is Hochhausler’s
stake in the continued possession and use of his driver’s license pending the
outcome of the ALS appeal. This interest is substantial, in part because the state
“will not be able to make a driver whole for any personal inconvenience or
economic hardship suffered by reason of any delay in redressing an erroneous
suspension through postsuspension review procedures.” Mackey, at 11, 99 S.Ct. at
2617, 61 L.Ed.2d at 330. The determinative factors we must consider in
determining the actual weight to be given to this interest include (1) the duration of
the license suspension, (2) the availability of prompt postsuspension review, and
(3) the availability of hardship relief. Id. at 11-12, 99 S.Ct. at 2617-2618, 61
L.Ed.2d at 330-331.
{¶ 16} The duration of the license suspension for a person who takes and
fails a chemical test is dictated by R.C. 4511.191(F). Division (F)(1) provides that
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the period of suspension shall be ninety days where the defendant has not been
convicted of a drunk-driving offense within the previous five-year period. The
length of the suspension increases to one, two, or three years where the defendant
has previously been convicted of one, two, or three or more drunk-driving offenses,
respectively, during the preceding five-year period. R.C. 4511.191(F)(1) through
(4). The record demonstrates that Hochhausler’s license was suspended for one
year due to one prior conviction of a drunk-driving offense within the past five
years. Hochhausler contends that the burden imposed by this period of suspension
is so severe that due process requires that a pre-suspension hearing be given. We
disagree.
{¶ 17} This court and the United States Supreme Court, when reviewing
statutes substantially similar to R.C. 4511.191(F), have consistently held that the
burden imposed on an individual by a summary administrative license suspension
is not so great that the specific dictates of due process required prior notice and an
opportunity to be heard. See, e.g., Dixon, 431 U.S. 105; 95 S.Ct. 1723, 52 L.Ed.2d
172; Gabriel, 35 Ohio St.3d 60; 518 N.E.2d 558; see, also, State v. Starnes (1970),
21 Ohio St.2d 38, 50 O.O.2d 84, 254 N.E.2d 675. We adopt the rationale of the
decisions in those cases and conclude that the suspensions that may be imposed
pursuant to R.C. 4511.191(F) are not so burdensome that a presuspension hearing
is required.
{¶ 18} We next consider the availability of prompt postsuspension review
and its effect on the private interest. R.C. 4511.191(H)(1) permits a defendant to
appeal an administrative license suspension at the initial appearance for the criminal
charge, which must be held within five days of arrest. Division (H)(1) also provides
that the defendant may raise issues pertaining to four specified conditions, which
include questions regarding the reasonableness of the initial stop by the arresting
officer. See R.C. 4511.191(H)(1)(a) through (d). Moreover, the statute requires
the trial court to terminate the suspension where any of the specified conditions are
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January Term, 1996
not met. R.C. 4511.191(H)(2). These appeal provisions provide an aggrieved
licensee with an adequate means of obtaining prompt post-suspension review of an
administrative license suspension. Accordingly, we conclude that the burden on
the private interest implicated by an ALS is significantly reduced by the availability
of the review procedures of R.C. 4511.191(H), and any wrongful deprivation of the
driver’s license prior to the time of the hearing is minimal.
{¶ 19} Finally, the availability of hardship relief, while not extensive, is
sufficient to satisfy the private-interest element. Under R.C. 4511.191(I),
occupational driving privileges are made available to a driver whose license has
been administratively suspended. Although the statute does not provide for
immediate hardship relief, we conclude that the statutory scheme is not so onerous
as to significantly elevate the private interest implicated by an ALS. Mackey, 443
U.S. at 12, 99 S.Ct. at 2618, 61 L.Ed.2d at 330 (Hardship relief is “in no sense the
‘controlling’ factor.”).
Risk of Erroneous Deprivation
{¶ 20} The second prong of the Mathews test requires us to consider the risk
of an erroneous deprivation of a driver’s license as a result of the procedures used.
While this prong also requires consideration of the reliability of the procedures, the
Due Process Clause has never been construed to mandate that the procedures used
be so comprehensive as to preclude any possibility of error. Thus, “‘something less
than an evidentiary hearing is sufficient prior to adverse administrative action.’”
Dixon, at 113, 97 S.Ct. at 1728, 52 L.Ed.2d at 180. Further, when prompt
postdeprivation review is available to correct administrative error, no more is
generally required “than that the predeprivation procedures used be designed to
provide a reasonably reliable basis for concluding that the facts justifying the
official action are as a responsible government official warrants them to be.”
Mackey, at 13, 99 S.Ct. at 2618, 61 L.Ed.2d at 331.
9
SUPREME COURT OF OHIO
{¶ 21} The procedures followed by an arresting officer pursuant to R.C.
4511.191 simply do not present so substantial a risk of erroneous deprivation as to
require a full presuspension hearing. The underlying circumstances for the
administrative license suspension -- an arrest, reasonable grounds for the arrest, and
either a refusal to take the chemical test, or taking the chemical test and failing --
may be accepted as objective facts. These facts are recorded in a sworn report
completed by the arresting officer pursuant to R.C. 4511.191(D)(1)(c). This report
is prima facie proof of the information and statements included in the report by the
arresting officer. R.C. 4511.191(D)(3). Moreover, the use of chemical testing
procedures in drunk-driving cases is widely accepted by courts. State v. Vega
(1984), 12 Ohio St.3d 185, 186, 12 OBR 251, 252-258, 465 N.E.2d 1303, 1305.
The tests have been generally recognized for over twenty-seven years as being
reasonably reliable when conducted with proper equipment and by competent
operators. Id., citing Westerville v. Cunningham (1968), 15 Ohio St.2d 121, 44
O.O.2d 119, 239 N.E.2d 40. While the risk of an erroneous deprivation may
increase when the result of a chemical test, rather than a refusal to submit to the
test, serves as the basis of the suspension, the risk would not rise to a level requiring
a result different from that reached in Mackey. Therefore, we conclude that the risk
of an erroneous suspension of a driver’s license pursuant to R.C. 4511.191 is not
so substantial as to require that the accused receive prior notice and an opportunity
to be heard prior to the suspension.
Governmental Interest
{¶ 22} The final prong of the Mathews test requires consideration of the
governmental interest served by the provisions of R.C. 4511.191(F). The state
interest served by the reasonable use of an administrative license suspension is
obvious and compelling. In view of the death and injury caused by persons driving
on public roads and highways while intoxicated, the General Assembly, by a
perpetual process of amending Ohio’s “drunk driving” laws, and the courts, by their
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January Term, 1996
sentencing practices, have unequivocally stated the state’s interest in removing
intoxicated drivers from public roadways.
{¶ 23} For all of the foregoing reasons, we hold that the administrative
license suspension provisions of R.C. 4511.191 do not violate an individual’s right
to procedural due process.
II
Separation of Powers
{¶ 24} Hochhausler contends that the “no stay” provision of R.C.
4511.191(H)(1) violates the doctrine of separation of powers. R.C. 4511.191(H)(1)
provides in part:
“If the person appeals the suspension [of his driver’s license] at his initial
appearance, the appeal does not stay the operation of the suspension. Subject to
division (H)(2) of this section, no court has jurisdiction to grant a stay of a
suspension imposed under division (E) or (F) of this section, and any order issued
by any court that purports to grant a stay of any suspension imposed under either
of those divisions shall not be given administrative effect.” (Emphasis added.)
{¶ 25} The principle of separation of powers is embedded in the
constitutional framework of our state government. The Ohio Constitution applies
the principle in defining the nature and scope of powers designated to the three
branches of the government. State v. Warner (1990), 55 Ohio St.3d 31, 43-44, 564
N.E.2d 18, 31. See State v. Harmon (1877), 31 Ohio St. 250, 258. It is inherent in
our theory of government “‘that each of the three grand divisions of the
government, must be protected from the encroachments of the others, so far that its
integrity and independence may be preserved. * * *’” S. Euclid v. Jemison (1986),
28 Ohio St.3d 157, 159, 28 OBR 250, 252, 503 N.E.2d 136, 138, quoting Fairview
v. Giffee (1905), 73 Ohio St. 183, 187 76 N.E. 865, 866.
{¶ 26} In order to preserve the constitutionality of R.C. 4511.191(H)(1), the
court of appeals interpreted the “no stay” provisions “as merely prohibiting a
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municipal court, county court, mayor’s court or other court of original jurisdiction
from staying a license suspension imposed under R.C. 4511.191(E) or (F) pending
an ALS appeal.” The court of appeals also said, “We do not believe that the ‘no
stay’ provisions of R.C. 4511.191(H)(1) were intended to preclude a court of
appeals or the Ohio Supreme Court from staying an ALS appeal.” Although we
agree that a court should not declare a statute to be unconstitutional if a
constitutional construction is available, State ex rel. Steffen v. Kraft (1993) 67 Ohio
St.3d 439, 440, 619 N.E.2d 688, 689, the holding of the court of appeals strains that
principle beyond its purpose.
{¶ 27} We have held that “[t]he administration of justice by the judicial
branch of the government cannot be impeded by the other branches of the
government in the exercise of their respective powers.” State ex rel. Johnston v.
Taulbee (1981), 66 Ohio St.2d 417, 20 O.O.3d 361, 423 N.E.2d 80, paragraph one
of the syllabus. We have also held that “[c]ourts of general jurisdiction, whether
named in the Constitution or established pursuant to the provisions thereof, possess
all powers necessary to secure and safeguard the free and untrammeled exercise of
their judicial functions and cannot be directed, controlled or impeded therein by
other branches of the government.” (Citations omitted.) Id. at paragraph two of
the syllabus.
{¶ 28} The legislative branch has no right to limit the inherent powers of
the judicial branch of the government. Hale v. State (1896), 55 Ohio St. 210, 212-
213, 45 N.E. 199, 200. Inherent within a court’s jurisdiction, and essential to the
orderly and efficient administration of justice, is the power to grant or deny stays.
See Landis v. N. Am. Co. (1936), 299 U.S. 248, 254, 57 S.Ct. 163, 166, 81 L.Ed.
153, 158; State v. Smith (1989), 42 Ohio St.3d 60, 61, 537 N.E.2d 198, 200. To the
extent that R.C. 4511.191(H) deprives courts of their ability to grant a stay of an
administrative license suspension, it improperly interferes with the exercise of a
court’s judicial functions. Thus, the part of R.C. 4511.191(H)(1) that prevents “any
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January Term, 1996
court” from granting a stay violates the doctrine of separation of powers and is
unconstitutional.
{¶ 29} Having found part of R.C. 4511.191 unconstitutional, we next
determine whether the offending “no stay” provision may be severed from the
remainder of the statute. R.C. 1.50 provides that statutory provisions are severable:
“If any provisions of a section of the Revised Code or the application thereof to any
person or circumstances is held invalid, the invalidity does not affect other
provisions or applications of the section or related sections which can be given
effect without the invalid provision or application, and to this end the provisions
are severable.”
{¶ 30} Prior to severing a portion of a statute, we must first determine that
the severability will not fundamentally disrupt the statutory scheme of which the
unconstitutional provision is a part. State ex rel. Maurer v. Sheward (1994), 71
Ohio St.3d 513, 523, 644 N.E.2d 369, 377. The test for determining whether part
of a statute is severable was set forth in Geiger v. Geiger (1927), 117 Ohio St. 451,
466, 160 N.E. 28, 33:
“‘(1) Are the constitutional and the unconstitutional parts capable of
separation so that each may be read and may stand by itself? (2) Is the
unconstitutional part so connected with the general scope of the whole as to make
it impossible to give effect to the apparent intention of the Legislature if the clause
or part is stricken out? (3) Is the insertion of words or terms necessary in order to
separate the constitutional part from the unconstitutional part, and to give effect to
the former only?’” Id., quoting State v. Bickford (1914), 28 N.D. 36, 147 N.W.
407, paragraph nineteen of the syllabus.
{¶ 31} Denying a court the power to grant a stay is not so essentially
connected with the remainder of R.C. 4511.191 that, if eliminated, the statute loses
its intent. Thus modified, the remainder of R.C. 4511.191(H) continues to give
effect to the intention of the General Assembly. Therefore, we hold that the “no
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stay” provision of R.C. 4511.191(H)(1) is unconstitutional as a violation of the
doctrine of separation of powers and is severable from the rest of the statute.
III
R.C. 4511.195—Procedural Due Process
{¶ 32} Omni contends that the newly enacted vehicle-seizure provisions of
R.C. 4511.195 are unconstitutional because no hearing is provided prior to a vehicle
being seized and immobilized.1 The relevant portion of R.C. 4511.195 provides:
“(B)(1) If a person is arrested for a violation of section 4511.19 of the
Revised Code or of a municipal OMVI ordinance and, within five years of the
alleged violation, he previously has been convicted of or pleaded guilty to one or
more violations of section 4511.19 of the Revised Code [or] a municipal OMVI
ordinance * * *, the arresting officer or another officer of the law enforcement
agency that employs the arresting officer, in addition to any action that the arresting
officer is required or authorized to take by section 4511.191 of the Revised Code
or by any other provision of law, shall seize the vehicle that the person was
operating at the time of the alleged offense and its identification license plates.
Except as otherwise provided in this division, the officer shall seize the vehicle and
license plates under this division regardless of whether the vehicle is registered in
the name of the person who was operating it or in the name of another person.”
(Emphasis added.)
1. In Bennis v. Michigan (1996), 516 U.S. ___, 116 S.Ct. 994, 134 L.Ed.2d 68, 64 LW 4124, the
United States Supreme Court reaffirmed a long line of cases in which the court held that an innocent
owner’s interest in property may be forfeited by reason of the use of the property. We note that
Bennis is distinguishable from the case at bar in that Bennis involves an equitable action on a
nuisance abatement. In contrast to Omni’s appeal, the Bennis court stated:
“The gravamen of petitioner’s due process claim is not that she was denied notice or an
opportunity to contest the abatement of her car; she was accorded both.*** Rather, she claims she
was entitled to contest the abatement by showing she [was an innocent owner].” Id. at ___, 116
S.Ct. at 998, 134 L.Ed.2d at 74-75. Thus, it was the lack of an “innocent owner” defense in the
challenged statute that was at issue in Bennis. Such a defense is available in R.C. 4511.195 pursuant
to 4503.235. However, the trial court here found Omni not to be an “innocent owner,” and that issue
is not before this court.
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January Term, 1996
{¶ 33} Omni argues that it is being denied its right to procedural due process
because a vehicle that it owns was seized without adequate notice and a meaningful
hearing to determine the status of the ownership of the vehicle. Consequently, we
must again apply the Mathews three-pronged balancing test, which requires
consideration of the private interest that will be affected by the official action, the
risk of erroneous deprivation, and the governmental interest, including the burdens
that would be imposed on the government by additional procedural requirements.
The Matthews Test Applied
Private Interest
{¶ 34} Clearly, there is a substantial interest in the possession and use of a
vehicle. “Automobiles occupy a central place in the lives of most Americans,
providing access to jobs, schools, and recreation as well as to the daily necessities
of life.” Coleman v. Watt (C.A.8, 1994), 40 F.3d 255, 260-261. The private interest
in a vehicle, however, is different from the interest in a driver’s license. A motor
vehicle may be the subject of multiple private interests, i.e., a jointly owned family
automobile or, as here, a company-owned vehicle, and the due process constriction
on the state should be afforded to any person or entity with an interest in the
instrumentality of the criminal offense. A private interest in a vehicle is
transferable, whereas a driver’s license is unique to that individual. Further, an
individual whose vehicle is seized pursuant to R.C. 4511.195 must wait until the
initial appearance on the criminal violation, which must occur within five days of
arrest, for the first opportunity to recover the vehicle. Such a delay, with no
statutory mechanism to provide for immediate review, significantly increases the
weight of the private interest of the vehicle owner.
Risk of Erroneous Deprivation
{¶ 35} The state argues that the risk of erroneous deprivation of an
individual’s vehicle is exceedingly low. While we agree that a clerical search
performed by the arresting officer may quickly and accurately determine whether
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an individual has a prior conviction warranting seizure of the vehicle, that is no
comfort to the owner of a vehicle that has been seized because someone else
operated it in violation of the law. Under R.C. 4511.195(B)(1), the officer shall
seize the vehicle operated by the arrestee regardless of the identity of the vehicle’s
actual owner or the manner in which the vehicle operator obtained the vehicle.
Resolution of that issue must wait until the arrestee’s initial appearance for the
underlying drunk-driving charge and depends on a favorable determination of
several factors, including whether “the vehicle owner knew or should have known
after a reasonable inquiry that the vehicle was used or involved or likely to be used
or involved in the offense or violation [and] * * * the vehicle owner or his agent
expressly or impliedly consented to the use or involvement of the vehicle in the
offense or violation.” R.C. 4503.235(B)(3)(b)(i) and (ii). Thus, it is obvious that
the risk of erroneous deprivation is extremely high under the summary seizure
provisions of R.C. 4511.195. Unlike the relatively straight forward factual
situations involved in an administrative license suspension, vehicle seizure and
immobilization are inextricably linked with the drunk-driving charge, which
presents a wide array of factual issues that have a direct impact on the resolution of
the vehicle impoundment. Because the factual disputes are not resolved until trial
on the criminal charge, the likelihood of erroneous deprivation is significantly
higher than in an ALS. Although the erroneous deprivation ultimately would be
terminated, given the importance of the property interest affected, even the
temporary denial of possession and use of the vehicle inflicts too severe a hardship
on the individual wrongfully deprived.
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Governmental Interest
{¶ 36} As previously stated, the government has a compelling interest in
protecting the public by removing from Ohio’s streets and highways persons who
operate motor vehicles while intoxicated. However, the statutory scheme of R.C.
4511.195 is designed to remove from public roadways the instrumentality of the
drunk-driving offense regardless of whether the vehicle is owned by the person
arrested for that offense. The lack of a direct effect on public safety is readily
apparent. For example, R.C. 4511.195, which is unique among the states, treats an
owner of a stolen vehicle operated by a drunk driver the same as the owner-operator
who drives while drunk. The owner of the stolen vehicle, which is now in the hands
of the police, nonetheless must wait until the initial appearance of the drunk driver.
This could be as long as five days, during which time the vehicle owner is subject
to impoundment fees. As the statute is one step more removed from the clear
compelling interest of public safety, the governmental interest under R.C. 4511.195
is decreased.
{¶ 37} Recently, the United States District Court for the Southern District
of Ohio reviewed a constitutional challenge to the due process afforded under R.C.
4507.38, which requires an arresting officer to seize and immobilize any vehicle
operated by an individual driving without a valid driver’s license. Kutschbach v.
Davies (S.D.Ohio 1995), 885 F.Supp. 1079, 1093. A comparison of R.C. 4507.38
with 4511.195 reveals the two statutes to be virtually identical in all relevant
respects. After subjecting R.C. 4507.38 to analysis under the Mathews test, Judge
Beckwith in Kutschbach stated that the violation to due process by the statute was
“manifest.” The court concluded that “[t]he procedures set forth in the statute
virtually ensure the erroneous deprivation of *** property. No governmental
interest justifies a delay of several days before the government is required to
establish probable cause for the detention of a [a person’s] vehicle.” Id. at 1093.
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{¶ 38} Likewise, we conclude that the governmental interest advanced
under R.C. 4511.195 is insufficient to outweigh the private interest in a vehicle and
the attendant risk of erroneous deprivation under the present statutory scheme, and
does not justify the deprivation of a vehicle owner’s property interest when that
vehicle is operated by a third party. R.C. 4511.195 is unconstitutional as applied
to the owner of a vehicle that has been seized and immobilized because the vehicle
was being operated by a third person when that person was arrested on a drunk-
driving charge.
{¶ 39} Accordingly, we affirm the judgment of the court of appeals as to
Hochhausler’s due process challenge to R.C. 4511.191. Further, having severed
the “no stay” portion of R.C. 4511.191(H), we reverse and remand that issue, which
was raised by Hochhausler through a motion to dismiss, to the court of appeals to
determine whether Hochhausler was unfairly prejudiced. Based on our
determination of R.C. 4511.195, we reverse the judgment of the court of appeals as
to the issue of the seizure and immobilization of Omni’s vehicle.
Judgment affirmed in part,
reversed in part
and cause remanded.
DOUGLAS, RESNICK and KARPINSKI, JJ., concur.
F.E. SWEENEY, J., concurs, except with paragraph three of the syllabus and
the related discussion in the opinion, to which he dissents.
PATTON and COOK, JJ., concur in part and dissent in part.
JOHN T. PATTON, J., of the Eighth Appellate District, sitting for WRIGHT, J.
DIANE KARPINSKI, J., of the Eighth Appellate District, sitting for PFEIFER, J.
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January Term, 1996
COOK, J., concurring in part and dissenting in part.
{¶ 40} I concur with paragraph one of the syllabus but respectfully dissent
from paragraphs two and three.
I.
The “No Stay” Provision
{¶ 41} I dissent from paragraph two of the syllabus, holding that the “no
stay” provision violates the doctrine of separation of powers in that it interferes
with the exercise of a court’s inherent powers. The majority reaches this conclusion
by reasoning that among a court’s inherent powers necessary “‘to secure and
safeguard the free and untrammeled exercise of their judicial functions’” and to
secure “‘the orderly and efficient administration of justice’” is a court’s ability to
grant or deny stays. Among the authority the majority cites for this proposition is
Hale v. State (1896), 55 Ohio St. 210, 212-213, 45 N.E. 199, 200. In Hale, we held
that the court possesses the inherent authority to issue contempt orders. Unlike the
power to stay, the power to issue contempt orders deals with the court’s ability to
regulate the conduct of the parties and witnesses before it and to ensure that each
party is given a fair opportunity to collect and present its evidence. Such
safeguarding is at the core of a court’s ability to administer justice. However, such
is not always the case with regard to the court’s power to stay proceedings.
{¶ 42} By the majority’s own standard, a court’s inherent ability to grant or
deny a stay is not a general power, but is an extraordinary remedy limited to those
times when necessary to the administration of justice. For example, the majority
cites Landis v. N. Am. Co. (1936), 299 U.S. 248, 254-255, 57 S.Ct. 163, 166, 81
L.Ed.2d 153, 158, where the Supreme Court held that a stay of proceedings is
incidental to the court’s inherent power to control and manage its docket and will
be granted only in the rare case. Because the appeal of an ALS is limited in scope
and defined by statute, courts do not need to stay the license suspension for the
outcome in the criminal case in order to streamline the issues in the appeal. See
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R.C. 4511.191(H)(2). Therefore, such a stay does not implicate a court’s ability to
manage or control its docket as contemplated in Landis, supra.
{¶ 43} A stay is also necessary to the administration of justice where a court
seeks to prevent the undue hardship or irreparable injury resulting from the
enforcement of a determination which may have been wrong. See, e.g., State v.
Smith (1989), 42 Ohio St.3d 60, 61, 537 N.E.2d 198, 200 (courts have no inherent
authority to suspend criminal sentences except to suspend execution of a sentence
pending appeal or a motion for a new trial).
{¶ 44} Initially, we note that the circumstances under which an ALS is
imposed all but ameliorates the wrong determination concern. An ALS is imposed
for one of two reasons -- refusing to submit to chemical testing or failing the test.
Because the ALS for refusing the test is not ultimately dependent on the accused’s
conviction of an OMVI offense, that judicial determination has no bearing on the
propriety of the enforcement of the ALS. On the other hand, where an ALS is
imposed for failing the test, there is a good indication that the driver was, in fact,
operating a motor vehicle with a prohibited blood-alcohol level. While the accused
still enjoys the judicial safeguards requisite to a criminal conviction, the interim
suspension imposed for remedial purposes is justified. The suspension is
reasonably likely to remove a threat from the roadways pending a judicial
determination of guilt, thereby promoting public safety.
{¶ 45} Moreover, the granting of a license is a privilege and not an absolute
property right, State v. Williams (1996), 76 Ohio St.3d 290, 667 N.E.2d 932;
Dobbins v. Ohio Bur. of Motor Vehicles (1996), 75 Ohio St.3d 533, 538, 664 N.E.2d
908, 912; Doyle v. Ohio Bur. of Motor Vehicles (1990), 51 Ohio St.3d 46, 51, 554
N.E.2d 97, 102, and the temporary loss or suspension of this privilege is an
“inconvenience.” Columbus v. Adams (1984), 10 Ohio St.3d 57, 60, 10 OBR 348,
350, 461 N.E.2d 887, 890. Thus, an ALS imposed under R.C. 4511.191 does not
by law qualify as an undue hardship or irreparable injury.
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January Term, 1996
{¶ 46} A stay of an ALS is neither necessary to control or manage a court’s
docket nor necessary to prevent undue hardship or irreparable harm. Accordingly,
I would find that the “no stay” provision does not violate the separation of powers
doctrine because the power to stay the ALS is not an inherent power essential to
the administration of justice.
{¶ 47} By allowing the judiciary to stay the ALS, the majority thwarts the
remedial purpose of driver’s license suspensions. The ALS is intended to protect
the public by removing drunk drivers from our highways until a judicial
determination of the four statutory criteria set forth in R.C. 4511.191(H)(1) is made.
If R.C. 4511.191 is to have any meaningful remedial purpose, the “no stay”
provision must be enforced.
II.
Due Process and R.C. 4511.195
{¶ 48} The majority also holds that R.C. 4511.195 violates due process as
applied to the owner of a vehicle that has been seized and immobilized when the
vehicle was being operated by a third party, primarily because a possible five-day
delay exists before an “innocent owner” can assert this defense. This possible delay,
according to the majority, “significantly increases the weight of the private interest
of the vehicle owner,” causes an “obvious” and “extremely high” risk of erroneous
deprivation, and removes the statute one more step from a compelling public safety
interest. Yet, the trial court here has found that Omni, a closely held corporation,
could not be an “innocent owner” in light of Hochhausler’s roles as Omni’s
president and majority shareholder. That finding has not been challenged and,
therefore, is not at issue today.
{¶ 49} In Calero-Toledo v. Pearson Yacht Leasing Co. (1974), 416 U.S.
663, 94 S.Ct. 2080, 40 L.Ed.2d 452, the United States Supreme Court considered
and rejected a due-process challenge to the seizure of a yacht when its owner was
not involved in any criminal activity and was unaware that the lessee of the yacht
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had engaged in illegal activities upon it. The court held that a seizure without prior
notice and opportunity to be heard does not violate due process where the seizure
serves a significant government interest, there is a special need for prompt action,
and the seizure is not initiated by self-interested parties. Id. at 678-680, 94 S.Ct. at
2089-2090, 40 L.Ed.2d at 465-466.
{¶ 50} As was held in Calero-Toledo, due process is not violated by the
seizure in this case. This seizure serves the important government interest of
promptly eliminating recidivist drunk driving by immediately removing the
instrumentality of the drunk-driving offense. There also exists a special need for
prompt seizure, since a car, like a yacht, could be removed to another jurisdiction
or concealed if advance notice of the seizure were to be given. Id. at 679, 94 S.Ct.
at 2090, 40 L.Ed.2d at 466. The seizure is not initiated by self-interested private
parties, but rather is initiated by law enforcement officers under narrowly tailored
circumstances. The seizure is warranted only when a driver has at least one prior
OMVI conviction within the preceding five years, the driver’s record of prior
arrests is easily verifiable, the arrest may be weighed according to objective criteria,
and the statute employs extensive notice provisions.
{¶ 51} Moreover, persons affected by the seizure are given a prompt
opportunity to be heard. The driver or innocent owner is given an opportunity to
appeal the immobilization at the initial hearing, which must be held within five days
of the arrest. The request for an appeal may also be made at any time thereafter.
{¶ 52} For these reasons, I cannot agree that R.C. 4511.195 violates due
process or that the “no stay” provision of R.C. 4511.191 violates the separation of
powers doctrine.
PATTON, J., concurs in the foregoing opinion.
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