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State v. Stolich4/19/1995
the affirmative.)
"Q. What happened? And then you were-
"A. Well, they stayed there. He didn't take him away. He just took him to his car.
"Q. Took him to his car?
"A. Mmm-hmm.
"Q. Right. And then you stayed in your car?
"A. Right.
"Q. What happened immediately after that? What happened next?
"A. He brought my license back and handed them to me and told me I was free to go home.
"Q. Did you have any discussion with him about what was going to happen to Roger?
"A. No.
"Q. Did you say anything or talk to him at all about bond or to get bond for Roger?
"A. No, I don't believe so.
"Q. Okay. Could you have told the officer that you would go get bond, try to find a bondsman for him?
"A. No, I did not.
"Q. Okay. And was the officer at all concerned to you about having the car parked or getting it moved from where it was parked, was there any discussion about illegally parked or anything like that?
"A. No. "Q. And when the-. Okay. Did the officer have you do any field sobriety tests?
"A. No.
"Q. Nothing like that at all. And just had basically the kind of contact that you testified here to, is that-
"A. Right? He just-
"Q. Most of the attention would be fair to say, was focused on Roger?
"A. Right."
Following Stolich's testimony, argument, was presented by counsel for both parties. Following the argument, the trial, court found Stolich guilty on the no contest plea, and imposed sentence accordingly. Stolich appeals from her conviction and sentence.
Stolich's sole assignment of error is as follows:
"The trial court erred in failing to recognize, as a defense to a DUI charge, the fact that the state through its police officers had instructed defendant to drive in the same condition that led to the DUI charge."
Essentially, Stolich contends that because she had received an order to drive her car away from the place where it was parked, she had the unacceptable choice of either refusing to obey the order of a police officer, or driving while she might be, and was in fact, intoxicated.
Stolich acknowledges that she has not found any Ohio cases directly on point, but cites State v. Melvan (1992), 80 Ohio App.3d 443, 449, 609 N.E.2d 595, 599600, as a case in which some sympathy was expressed for the proposition that following the direction of a police officer is a defense to a charge of drunk driving . In that case, the first officer to stop the defendant told him to go home, but it appeared that the defendant made no effort to do so. Consequently, the court of appeals concluded that the defense was not available to the defendant in that case, even if it would otherwise be a valid defense, because he was not following the direction of a police officer when he ,vas stopped the second time.
We, also, would find some sympathy for Stolich if we could accept as proven her proposition of fact that she had been ordered to leave the scene by the police officer who arrested her companion, Roger Conley. However, we cannot accept this proposition of fact as having been proven to the satisfaction of the trial court.
In her direct testimony, Stolich was asked whether anyone had told her to leave the area. In response to that question, Stolich asserted that the police officer who arrested Conley had told her to go on home. However, on cross-examination, in response to a more open-ended qu
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