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State v. Shrader2/7/1997
MELVIN L. RESNICK, Presiding Judge.
This case comes before the court on appeal from a judgment of the Ottawa Municipal Court wherein appellant was convicted on one count of operating a motor vehicle with a prohibited concentration of alcohol in his body in violation of R.C. 4611.19(A)(3).
Appellant, Walter M. Shrader, appeals his conviction and asserts the following assignments of error:
"The trial court erred in denying the special jury instructions regarding the definition of operation requested by appellant."
"Appellant's conviction is against the manifest weight of the evidence."
On the evening of August 5, 1995, appellant drove to a bowling alley located in Elmore, Ottawa County, Ohio. He parked his motor vehicle in the municipal parking lot and went inside the bowling alley to talk with friends and have some drinks.
Appellant left the bowling alley at approximately 11:00 p.m. Realizing that he had consumed too many drinks to drive, appellant decided to sleep in his car. Appellant got into his car, locked the doors, put the car keys on the console between the front driver seat and the front passenger seat, and went to sleep.
Shortly thereafter, Officer Jeff Jacob of the village of Elmore Police Department observed appellant's car in the municipal parking lot. After seeing that an individual was "slouched down" in the driver's seat, Officer Jacob decided to investigate the situation. He knocked on the driver's side window of appellant's vehicle and received no response. After he knocked a second time, appellant awoke and attempted to open the power windows of the car by inserting the keys into the ignition, but was unable to do so.
Either appellant or the officer then opened the car door. Officer Jacob immediately noticed an intense smell of alcohol coming from the vehicle and appellant's person. He also observed that appellant appeared disoriented. Officer Jacob saw the keys to the car on the console between the driver and passenger seats. The engine of the vehicle was not running.
The officer asked appellant to step out of the car and then asked appellant to perform four types of field sobriety tests. Appellant failed all four tests. According to Officer Jacob, he then offered to provide appellant with transportation to appellant's residence. Jacob testified that appellant refused, stating that he was going to "sleep off' the effects of the alcohol in his car and then go home. Appellant denied that the officer ever offered to take him to his residence.
The officer placed appellant under arrest for operating a vehicle while under the influence of alcohol and transported him to the Oak Harbor Police Department. At the police department, appellant agreed to submit to a breathalyzer test, which resulted in a reading of .229, a breath-alcohol content greater than the legal limit. Appellant was charged with violations of R.C. 4511.19(A)(1) and 4511.19(A)(3).
Prior to his jury trial, appellant filed a written request for a special instruction, which read, in material part:
" f a person is drunk, asleep in a motor vehicle, with no key in the ignition, and there is no evidence of any conduct which might be included within the broad category of operation, he is not guilty of drunk driving ."
At trial, the municipal court gave a jury instruction encompassing the broad definition of the "operation" of a motor vehicle found in 4 Ohio Jury Instructions (1993), Section 545.26(2), and, despite appellant's objection, declined to give the requested special instruction.
The jury returned a verdict of guilty o
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