State v. Wilson , 2022 Ohio 3202 ( 2022 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Wilson, Slip Opinion No. 2022-Ohio-3202.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2022-OHIO-3202THE STATE OF OHIO, APPELLANT, v. WILSON, APPELLEE.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State v. Wilson, Slip Opinion No. 2022-Ohio-3202.]
R.C. 4510.14(A)—Driving under a license suspension imposed for operating a
vehicle while under the influence of alcohol or drugs—Definition of
“operate” under R.C. 4510.14(A)—Court of appeals’ judgment vacating
defendant’s conviction affirmed.
(No. 2020-0721—Submitted June 16, 2021—Decided September 14, 2022.)
APPEAL from the Court of Appeals for Hamilton County,
No. C-190281, 2020-Ohio-1584.
__________________
BRUNNER, J., announcing the judgment of the court.
I. FACTS AND PROCEDURAL HISTORY
{¶ 1} The parties do not dispute the facts of this case. During the night of
February 13 through early February 14, 2018, appellee, Katherine Wilson, and
three of her friends were up late and were thrown out of one of the friends’ house
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by the friend’s parent. They then decided to sleep in a car parked near the house.
Wilson occupied the driver’s seat and, because it was cold outside, turned the car
on and ran the heater. That is how the four friends were discovered hours later, all
asleep, by a police officer responding to a call from a concerned neighbor. There
was no evidence that Wilson had moved the car that morning. But because she was
in the driver’s seat while the car was running and her license was suspended at the
time due to a prior conviction for operating a vehicle while under the influence of
alcohol or drugs (“OVI”), the officer cited her for driving under a suspended
license. Though the ticket had indicated a violation of R.C. 4510.16 (which
concerns driving under a license suspension imposed for financial-noncompliance
reasons), the charge was amended to reflect a violation of R.C. 4510.14 for driving
under an OVI suspension.
{¶ 2} Despite there being no evidence that Wilson had moved the car, the
trial court found her guilty of driving under an OVI suspension, sentenced her to
three days in jail, and imposed a $250 fine. The trial court stayed execution of
Wilson’s sentence pending her appeal of the conviction.
{¶ 3} The First District Court of Appeals reversed Wilson’s conviction.
2020-Ohio-1584, 154 N.E.3d 208, ¶ 28. It noted that this court had twice defined
“operation of a motor vehicle” as a person’s being in the driver’s position of a
vehicle while having possession of the ignition key. Id. at ¶ 8-9, citing State v.
Cleary, 22 Ohio St.3d 198, 199, 490 N.E.2d 574 (1986), and State v. Gill, 70 Ohio
St.3d 150, 154, 637 N.E.2d 897 (1994). And it noted that under R.C. 4510.14(A),
a person whose license is suspended for an OVI offense shall not “ ‘operate any
motor vehicle upon the public roads or highways.’ ” 2020-Ohio-1584 at ¶ 6,
quoting R.C. 4510.14(A). However, it determined that the General Assembly
signaled a departure from the judge-made definition of “operate” when, in 2002, it
enacted R.C. 4511.01(HHH), which defines “operate” as “to cause or have caused
movement of a vehicle,” and enacted R.C. 4511.194, the separate offense of having
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physical control of a vehicle while under the influence, which forbids a person from
being intoxicated while “in the driver’s position * * * of a vehicle * * * [while]
having possession of the vehicle’s * * * ignition key.” 2020-Ohio-1584 at ¶ 10-21.
The court of appeals thus concluded that in order for the state to prove the element
of “operated” under R.C. 4510.14(A), it must present sufficient evidence showing
some movement of the vehicle. 2020-Ohio-1584 at ¶ 28.
{¶ 4} We accepted the state’s discretionary appeal to consider the following
issue:
In proving whether a defendant has violated
the law by operating a motor vehicle under one of the suspensions
set forth in R.C. 4510, whether the definition of the term “operate”
is governed by R.C. 4511.01(HHH) or this Court’s interpretation of
the term as set forth in State v. Cleary and its
progeny.
See 160 Ohio St.3d 1494, 2020-Ohio-5634, 159 N.E.3d 281. For the reasons that
follow, we affirm the judgment of the First District.
II. STANDARD OF REVIEW
{¶ 5} This case concerns a question of statutory interpretation, which we
review de novo. See State v. Pountney, 152 Ohio St.3d 474, 2018-Ohio-22, 97
N.E.3d 478, ¶ 20.
III. ANALYSIS
{¶ 6} Wilson was convicted of driving under an OVI suspension, in
violation of R.C. 4510.14(A), which prohibits any person whose driver’s license is
suspended for an OVI offense from operating a motor vehicle on Ohio’s public
roads or highways. There is no dispute that Wilson’s license was suspended for an
OVI offense at the time of the alleged offense. At issue is whether, by sleeping in
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the driver’s seat of the parked motor vehicle with the key in its ignition and its
engine running, when there was no evidence that she had moved or intended to
move the vehicle, there was sufficient evidence that Wilson “operated” it such that
she could be guilty of driving under an OVI suspension pursuant to R.C.
4510.14(A).
{¶ 7} No provision in the Revised Code directly answers this question.
Nothing in R.C. Chapter 4510 or the definitions or general provisions in R.C.
Chapter 4501 defines the term “operate.” R.C. 4511.01(HHH) is the only relevant
provision in the Revised Code that defines “operate,” stating that “ ‘operate’ means
to cause or have caused movement of a vehicle.” But that definition is limited by
R.C. 4511.01’s general caveat that its definitions apply “[a]s used in this chapter [,
i.e., R.C. Chapter 4511,] and in Chapter 4513 of the Revised Code.” There is no
legislative or caselaw authority requiring that the definition (“to cause or have
caused movement of a vehicle”) be applied to offenses contained in R.C. Chapter
4510, including the offense involved here, R.C. 4510.14(A).
{¶ 8} In 1986, before any definition of the term “operate” existed in the
Revised Code, this court was tasked with determining the meaning of that term in
the context of an OVI offense under R.C. 4511.19. See Cleary, 22 Ohio St.3d 198,
490 N.E.2d 574, superseded by statute as stated in Doe v. Marlington Local School
Dist. Bd. of Edn., 122 Ohio St.3d 12, 2009-Ohio-1360, 907 N.E.2d 706(“Marlington”). In Cleary, police found a drunk man passed out in his car and
slumped over its steering wheel with his foot on the accelerator, causing the car’s
engine to race. Id. at 198. But the car’s parking brake was engaged, and its
transmission was not in gear. Id. This court reasoned:
Th[e] [OVI] statute has been reviewed and amended over the years
and the General Assembly continues to adhere to the word
“operate.” Therefore, the prohibition contained in the statute is
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against “operating” a vehicle while under the influence, not merely
“driving” it. The term “operating” encompasses a broader category
of activities involving motor vehicles than does “driving.” Many
jurisdictions have found that a person may operate a vehicle even
though the vehicle is not moving. Operation of a motor vehicle
within contemplation of the statute is a broader term than mere
driving and a person in the driver’s position in the front seat with
the ignition key in his possession indicating either his actual or
potential movement of the vehicle while under the influence of
alcohol or any drug of abuse can be found in violation of R.C.
4511.19(A)(1).
Id. at 199. “Such a broad definition” of “operate,” we explained, was “essential to
achieve the legislative purpose of the statute, discouraging those who have
consumed too much alcohol from undertaking the operation of motor vehicles.” Id.
at 200. We later clarified that in OVI cases in which the vehicle’s engine was not
running but the keys were in the ignition, the definition from Cleary applied. See
Gill, 70 Ohio St.3d 150, 637 N.E.2d 897, at syllabus; see also State v. McGlone, 59
Ohio St.3d 122, 570 N.E.2d 1115 (1991), syllabus.
{¶ 9} Approximately a decade after our decision in Gill, in 2002, the
General Assembly enacted through Am.Sub.S.B. No. 123, 149 Ohio Laws, Part II,
3001 (“S.B. 123”), the new offense of “[h]aving physical control of [a] vehicle
while under the influence,” R.C. 4511.194, and delayed its effective date until 2004.
The current version of R.C. 4511.194 prohibits a person from being intoxicated
while in “physical control” of a vehicle and defines “physical control” as “being in
the driver’s position of the front seat of a vehicle * * * and having possession of
the vehicle’s * * * ignition key or other ignition device,” R.C. 4511.194(A)(2).
S.B. 123 also established a statutory definition of “operate” for purposes of R.C.
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Chapters 4511 and 4513, which respectively address the operation of motor
vehicles and motor-vehicle equipment and loads. Under the statutory definition, “
‘[o]perate’ means to cause or have caused movement of a vehicle.” R.C.
4511.01(HHH). In other words, as to OVI offenses (and the other offenses
prescribed in R.C. Chapters 4511 and 4513), the General Assembly superseded the
Cleary/Gill definition of “operate.”
{¶ 10} Thus, today, the definition of “operate” in R.C. 4511.01(HHH)
applies by its own terms to only R.C. Chapters 4511 and 4513 and not, for instance,
the offenses involving “operating” a vehicle while under various types of
suspensions found in R.C. Chapter 4510. And again, that definition superseded the
definition of “operate” that this court established in the context of OVI offenses
under R.C. 4511.19 in Cleary and Gill. For the offense at issue, which is set forth
in R.C. 4510.14, there is no binding definition of “operate” provided by our caselaw
or the Revised Code. We therefore must look to other sources for its definition in
this context.
{¶ 11} In Marlington, 122 Ohio St.3d 12, 2009-Ohio-1360, 907 N.E.2d
706, a student was molested by another student on a moving school bus, prompting
the former’s guardians to sue the school district, a school official, and the bus
driver. Id. at ¶ 3-6. A key issue we considered was whether the school district’s
alleged failure to supervise the students constituted “negligent operation of a motor
vehicle within the meaning of R.C. 2744.02(B)(1),” such that the plaintiffs could
avoid the political-subdivision-immunity defense generally available to a school
district under R.C. Chapter 2744. Marlington at ¶ 1.
{¶ 12} We determined in Marlington that the plaintiffs’ reliance on
Cleary’s broad definition of the term “operate” was “misplaced,” because Cleary
involved an OVI offense under a prior version of R.C. 4511.19 and not the General
Assembly’s more recent relevant enactments. Marlington at ¶ 22-23; see also
Cleary, 22 Ohio St.3d at 198-199, 490 N.E.2d 574. We stated that the Cleary
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definition of “operate” may not “be taken as a license for expanding the meaning
of operation of a motor vehicle under R.C. 2744.02(B)(1) to include anything a
driver may do [or not do] while driving.” Marlington at ¶ 22. We found that
notwithstanding the facial inapplicability of R.C. 4511.01(HHH)’s definition of
“operate” outside of R.C. Chapters 4511 and 4513, “the General Assembly’s
addition of R.C. 4511.01(HHH)’s definition of ‘operate[]’ * * * nevertheless sheds
light on the meaning of ‘operation’ in R.C. 2744.02(B)(1).” Marlington at ¶ 24.
And we concluded that “the exception to immunity in R.C. 2744.02(B)(1) for the
negligent operation of a motor vehicle pertains only to negligence in driving or
otherwise causing the vehicle to be moved.” (Emphasis added.) Id. at ¶ 26. Thus,
in Marlington, this court acknowledged that the broad definition of “operate” from
Cleary and Gill was applicable in limited (and earlier occurring) contexts, but we
chose to construe the statutory definition in R.C. 4511.01(HHH) as persuasive
authority even though, by its terms, it did not directly apply outside of R.C.
Chapters 4511 and 4513.
{¶ 13} The common definition of “operate,” when viewed in the context of
what is being operated, also persuades us that Wilson did not operate the vehicle.
The Oxford English Dictionary defines the word “operate” as “[t]o cause or actuate
the working of; to work (a machine, etc.).” Oxford English Dictionary 848 (2d
Ed.1989). And although there are many machines that can be “operated” without
their being moved, the particular function of a “motor vehicle” is to move and
provide transportation on roads. See R.C. 4501.01(B). R.C. 4501.01(B) excludes
from the definition of “motor vehicle” many incidentally mobile machines,
including certain construction equipment, farm machinery, and other machinery
that is slow-moving or “not designed for or employed in general highway
transportation.” Thus, operating a motor vehicle “upon the public roads or
highways,” R.C. 4510.14(A), consists of utilizing the vehicle for its definitive
purpose—movement and transportation.
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{¶ 14} It is also persuasive that R.C. 4510.14 is titled “[d]riving under OVI
suspension,” and that the prohibited conduct under R.C. 4510.14(A) is “operat[ing]
any motor vehicle upon the public roads or highways within this state during the
period of [an OVI] suspension.”1 (Emphasis added.) Perhaps there is a certain
equivalence between the terms “driving” and “operating” in this limited context.
The term “driving” is not defined in the Revised Code, but this court has previously
noted that “[t]he words, ‘driving,’ and, ‘propulsion,’ are not used as words of art in
the motor fuel use and sales tax statutes,” Shafer v. Glander, 153 Ohio St. 483, 489,
92 N.E.2d 601 (1950). According to this court in Shafer, those terms are therefore
“to be given their generally understood meanings. Both of the words connote
forward movement.” Id.; see also Oxford English Dictionary 1058 (2d Ed.1989)
(defining “drive,” in relevant part, as “[t]o guide a vehicle * * * to act as driver;
also, to travel * * * under one’s own direction or at one’s disposal”).
{¶ 15} Finally, overusing the expanded definition of “operate” from Cleary
and Gill might lead to a finding of criminal conduct when there was none. For
1. The dissenting opinion criticizes us for noting that this offense is named “[d]riving under OVI
suspension,” R.C. 4510.14. We agree with the dissenting opinion’s statement that statutes’ titles
“ ‘do not constitute any part of the law.’ ” Dissenting opinion, ¶ 55, quoting R.C. 1.01. Still, we
may find what has been used to organize a law’s enactment worth noting, especially when, as here,
the title is designated by the enacted statutory text and appears four times within the language of the
enactment. See R.C. 4510.14(B)(1) through (3). Thus, even though “the original version of R.C.
4510.14 enacted by the legislature in 2002 * * * did not contain any section titles,” dissenting
opinion at ¶ 55, the enactment did designate the title to which we have referred. Every enacted
version of R.C. 4510.14(B) includes, within the statutory text, the following language setting forth
the title: “Whoever violates this section is guilty of driving under OVI suspension.” R.C.
4510.14(B); S.B. 123, 149 Ohio Laws, Part II, 2467, 2889; Am.Sub.H.B. No. 490, 149 Ohio Laws,
Part V, 9484, 9772; 2011 Sub.H.B. No. 5. And the enacted text refers to the offense by this name
four times. See R.C. 4510.14(B)(1) through (3); 149 Ohio Laws, Part II, at 2889-2991; 149 Ohio
Laws, Part V, at 9772-9774; 2011 Sub.H.B. No. 5. That the title “[d]riving under OVI suspension”
reflects this language and has done so consistently since R.C. 4510.14 was first enacted in 2002
(with an effective date of 2004) is not an affront. We simply note it as a guide for helping to
understand what exists in the law itself. Thus, it is not that we “should know better” than to refer to
it, dissenting opinion at ¶ 55, but rather, in service to those who rely on the law to conform their
conduct to it and advise others of the same, we may point out what the law means to help Ohioans
be well-informed about what it allows and what it does not.
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instance, R.C. 4510.12 prohibits “operat[ing] any motor vehicle upon a public road
or highway * * * unless the person has a valid driver’s license.” But if the definition
of “operate” were to include a person’s merely sitting in the driver’s seat of a motor
vehicle while in possession of the key, then a child who listens to music while
sitting in the driver’s seat of a car parked on a public road while the key is in the
ignition is guilty of “operating a motor vehicle without a valid license,” R.C.
4510.12(B). The broad, judicially created definition of “operate” from Cleary and
Gill could also result in the criminalization of conduct necessitated by unfortunate
economic circumstances, such as a person’s temporarily taking shelter in a car
against inclement weather when the person’s driver’s license is suspended. See
also R.C. 4510.11 (prohibiting operating a motor vehicle under a suspended
license); R.C. 4510.22 (authorizing courts to suspend a person’s license for failure
to pay fines); R.C. 4510.111 (prohibiting operating a motor vehicle when the
person’s license is suspended for nonpayment of fines or child support); R.C.
4510.16(B) (prohibiting operating a motor vehicle when the person’s license is
suspended for failure to maintain automobile insurance or other proof of financial
responsibility). These outcomes would upend the statutory presumption that the
General Assembly’s enactments are intended to create just and reasonable results.
See R.C. 1.47(C).
{¶ 16} The dissenting opinion criticizes our view as “effectively
overrul[ing]” Cleary and Gill and accuses us of engaging in legislation to apply
R.C. 4511.01(HHH) to a context in which it facially does not apply. Dissenting
opinion, ¶ 50. This is a mischaracterization. We do not overrule Cleary and Gill.
And there is no need to do so. Cleary and Gill were decided in the context of the
OVI statute, were superseded by the legislature in that context, and this is not an
OVI case. Also, we do not directly apply R.C. 4511.01(HHH) because, according
to its plain terms, it is inapplicable to R.C. 4510.14 offenses. Rather, we
acknowledge that neither caselaw nor statute provides a clearly applicable
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definition of “operate” in this context, and we then ask, looking at the statutory
scheme as a whole, whether the broad conception in Cleary and Gill or the narrower
movement-based definition in R.C. 4511.01(HHH) more persuasively captures the
“just and reasonable results” we are required to presume, R.C. 1.47(C). In doing
so, we do no more than what courts routinely do when confronted with undefined
words in a statute; we examine their plain meaning and the context in which they
are used and determine and apply the appropriate definition of the word.
{¶ 17} We thus conclude that the plain-language definition of “operating”
a vehicle (the purpose of which is transportation) involves movement. This is
consistent with R.C. 4511.01(HHH) and the legislature’s choice, after Cleary and
Gill, to distinguish between the concepts of operation and mere physical control of
a vehicle. Compare R.C. 4511.19 with R.C. 4511.194. As the dissenting opinion
even admits, “[o]ne can certainly question the logic of Gill: it is doubtful that
anyone in common parlance would refer to someone sitting in a parked car with the
engine off as operating the car.” Dissenting opinion at ¶ 44.
{¶ 18} Though the definition of “operate” in R.C. 4511.01(HHH) is not
facially applicable to R.C. 4510.14, we conclude that the definition is relevant
when, as in this case, “operate” is not specifically defined in the statute under which
the offense was charged. We determine that in order for a person whose license is
suspended for an OVI offense to be guilty of driving under an OVI suspension, the
person must cause movement of a motor vehicle on the public roads or highways
within this state. See R.C. 4510.14(A); R.C. 4511.01(HHH).
IV. CONCLUSION
{¶ 19} In order for a person whose license is suspended for an OVI offense
to be guilty of driving under an OVI suspension, the person must be in more than
mere physical control of a motor vehicle. The person must cause or have caused
movement of the motor vehicle on the public roads or highways within this state
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during the period of the suspension. We affirm the judgment of the First District
Court of Appeals vacating Wilson’s conviction.
Judgment affirmed.
DONNELLY and STEWART, JJ., concur.
FISCHER, J., concurs in judgment only, with an opinion.
O’CONNOR, C.J., dissents.
DEWINE, J., dissents, with an opinion joined by KENNEDY, J.
_________________
FISCHER, J., concurring in judgment only.
{¶ 20} I concur in the court’s judgment, but I would not go as far as to say
that the definition of the term “operate” in R.C. 4511.01(HHH) applies to all
statutes that employ the term without defining it. Nevertheless, based on the
context of R.C. 4510.14 and the definition of “operate” in R.C. 4511.01(HHH),
which was adopted by the General Assembly in Am.Sub.S.B. No. 123, 149 Ohio
Laws, Part II, 2467, 2951 (“S.B. 123”), I would hold that the term “operate” in R.C.
4510.14 does require movement of the vehicle involved in the alleged offense.
{¶ 21} First, this court’s decisions in State v. Cleary, 22 Ohio St.3d 198,
490 N.E.2d 574 (1986), superseded by statute as stated in Doe v. Marlington Local
School Dist. Bd. of Edn., 122 Ohio St.3d 12, 2009-Ohio-1360, 907 N.E.2d 706, and
State v. Gill, 70 Ohio St.3d 150, 637 N.E.2d 897 (1994), are not mandatory or
persuasive authority in this case because their holdings did not apply to R.C.
Chapter 4510 violations and the reasoning in those cases does not apply outside the
context of drunk-driving violations under R.C. Chapter 4511. This court based its
holdings in Cleary and Gill on the legislature’s “clear purpose” of discouraging
“persons from putting themselves in the position in which they can potentially
cause the movement of a motor vehicle while intoxicated or under the influence of
any drug of abuse.” Gill at 154; see also Cleary at 199-200. This court held in
both cases that the term “operate” in R.C. Chapter 4511 did not require movement
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of a vehicle because the statute was meant to discourage intoxicated people from
getting behind the wheel and accidentally placing a vehicle in drive or making a
drunken decision to drive. See Cleary at 201; Gill at 154.
{¶ 22} That same reasoning does not apply to situations involving sober
people whose licenses have been suspended for operating a vehicle while under the
influence of alcohol or drugs (“OVI”). Nor does it apply to situations involving
individuals whose licenses have been suspended for other reasons. Yet those
individuals are likewise prohibited from “operating” a motor vehicle under R.C.
4510.11. There is no reason to believe that such individuals would accidentally
place their vehicle in drive or make a drunken decision to drive the vehicle.
Therefore, the reasoning for the decisions in Cleary and Gill does not apply to R.C.
4510.14, the law at issue in this case.
{¶ 23} As Justice Pfeifer recognized in his dissent in Gill, interpreting the
term “operate” to include a person’s running a vehicle without moving it would
prevent sober people whose licenses have been suspended from using their vehicles
to listen to the radio or as a “four-wheeled, heated hotel room.” Gill at 157-158
(Pfeifer, J., dissenting). It seems unlikely that this was the General Assembly’s
intent.
{¶ 24} Eight years after this court decided Gill, the General Assembly
enacted S.B. 123, which defined “operate” under R.C. Chapter 4511 to require
movement of the vehicle. Given the numbers of years that had passed, it seems
unlikely that the General Assembly was acting in response to this court’s decisions
in Cleary and Gill. And if the General Assembly was unaware of this court’s
decisions in Cleary and Gill, then it must have always intended the term “operate”
to require movement of the vehicle. Otherwise, the General Assembly would have
amended the law to prohibit “driving” a vehicle while under the influence. Instead,
the General Assembly retained the word “operate” and simply defined it to require
movement of the vehicle. The dissenting opinion conversely argues that we must
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assume the General Assembly was aware of our interpretation of the word
“operate” in Cleary and Gill and that the General Assembly responded to that
definition with S.B. 123. But S.B. 123 defined “operate” to require movement of a
vehicle. If the dissenting opinion is correct that the General Assembly was acting
in response to Cleary and Gill, then the General Assembly expressly rejected the
definition this court applied in those cases.
{¶ 25} S.B. 123 also created the new offense of “having physical control of
a vehicle while under the influence,” which is codified at R.C. 4511.194. “Physical
control” is defined as “being in the driver’s position of the front seat of a vehicle
* * * and having possession of the vehicle’s * * * ignition key.” R.C.
4511.194(A)(2). The Ohio Legislative Service Commission’s analysis of S.B. 123
referred to the physical-control offense as a “new offense.” Ohio Legislative
Service Commission, Final Analysis, Am.Sub.S.B. No. 123, at 116. But that offense
would not have been new under the bill if the General Assembly’s original
definition of “operate” was meant to include controlling the vehicle without moving
it. And again, if the General Assembly thought that the definition of “operate”
already included simply controlling the vehicle, it likely would have split the
original offense of operating a vehicle while under the influence into two offenses:
“driving” while under the influence and “having physical control” while under the
influence. Instead, the General Assembly retained the original offense of operating
a vehicle while under the influence and created a new offense for having control of
a vehicle while under the influence, indicating that the definition of “operate” never
included a person’s having simple physical control without moving the vehicle.
{¶ 26} The state points out that S.B. 123 created the R.C. 4511.01(HHH)
definition of “operate” and expressly limited its application to R.C. Chapters 4511
and 4513 while simultaneously amending the offense of driving under an OVI
suspension and moving it to R.C. Chapter 4510. The state argues that this shows
the General Assembly understood that the definition would apply to only R.C.
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Chapters 4511 and 4513 and that a different definition would apply to R.C. 4510.14.
But why would the General Assembly use the word “operate” multiple times in the
same bill, intend for it to have different definitions within that bill, and define it
only once? It seems far more likely that the General Assembly inadvertently
neglected to add the new R.C. Chapter 4510 to the list of chapters to which the
definition applies. Indeed, the language in R.C. 4511.01 limiting its definitions’
application existed before the General Assembly passed S.B. 123’s definition of
“operate.”
{¶ 27} While we cannot assume that the General Assembly acted
inadvertently and rewrite an unambiguous statute, we may examine the General
Assembly’s actions to determine its intent. Regarding the law at issue in this case,
the General Assembly enacted only one definition of “operate.” That definition
requires movement of the vehicle. Rather than assume the General Assembly
intended two definitions (one express, one implied) to apply to the same word
within the same bill, I would infer that the General Assembly intended the
definition of “operate” to apply throughout the bill. There is no evidence that the
General Assembly intended any other definition to apply, and the General
Assembly did not enact any other definition.
{¶ 28} Further evidence of the General Assembly’s intent is the fact that the
section is titled “driving under OVI suspension” and the offense is called the same
within the actual text of the statute. (Emphasis added.) R.C. 4510.14(B). If the
General Assembly had intended to criminalize mere control of a vehicle while
under the influence, it would have named the offense “having physical control of a
vehicle while under the influence,” as it did in R.C. 4511.194(D). Because the
language of R.C. 4510.14 and the history of S.B. 123 indicate that the General
Assembly intended the term “operate” in R.C. 4510.14 to require movement of the
vehicle, I would affirm the decision of the First District Court of Appeals.
{¶ 29} I accordingly concur in judgment only.
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_________________
DEWINE, J., dissenting.
{¶ 30} The question in this case is what does it mean to “operate” a car?
Does a person who runs the engine of a car operate the car? Or does one actually
have to drive a car to operate it?
{¶ 31} Under the ordinary meaning of the word, one operates a car by
engaging its engine. While the words “operate” and “drive” may possess
overlapping usages, one can operate a car without driving it. And in this case, our
precedent and statutory context reinforce that the ordinary usage of the word
“operate” is the correct one.
{¶ 32} The lead opinion, though, concludes otherwise. It says that a person
who engages the engine of a car is not operating the car for purposes of an Ohio
statute, R.C. 4510.14(A), which forbids someone who is under a drunk-driving
license suspension from operating a motor vehicle. In its view, while the statute
uses the word “operate,” what it really means is “drive.”
{¶ 33} I disagree—so I dissent.
I. Background
{¶ 34} One February morning, a police officer responded to a call about a
suspicious vehicle. He discovered Katherine Wilson and three friends asleep in a
car parked on a public street. Wilson was in the driver’s seat, the key was in the
ignition, the engine of the car was running, and the heater was on. The four
apparently had been asked to leave a party at a house on the street and decided to
sleep in the car.
{¶ 35} Wilson’s driver’s license had previously been suspended for
operating a motor vehicle while intoxicated (“OVI”). As a result, she was charged
with and convicted of operating a motor vehicle while under an OVI suspension in
violation of R.C. 4510.14(A). That provision provides: “No person whose driver’s
* * * license * * * has been suspended * * * for a conviction of a violation of a
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municipal OVI ordinance shall operate any motor vehicle upon the public roads or
highways within this state during the period of the suspension.” The First District
Court of Appeals reversed the conviction in a two-to-one decision. 2020-Ohio-
1584, 154 N.E.3d 208, ¶ 28.
II. Analysis
{¶ 36} This case presents a question of law: Does R.C. 4510.14(A)’s use of
the word “operate” encompass a car running idly or does it require movement of
the car?
A. The Ordinary Meaning of “to Operate” a Motor Vehicle
{¶ 37} Start with the ordinary meaning of “operate.” The verb “to operate”
and its various conjugates—operates, operated, operating, operator, operation—
appear in the Ohio Revised Code thousands of times across hundreds of chapters.
In some instances, a statute defines the meaning of operate, see, e.g., R.C.
1547.11(I)(3); R.C. 4511.01(HHH); R.C. 5501.70(E), in which case the
legislature’s definition controls, see State v. Faggs, 159 Ohio St.3d 420, 2020-
Ohio-523, 151 N.E.3d 593, ¶ 15; R.C. 1.42. Other times, such as with the law at
issue, operate is undefined. Generally, when a word is undefined, we apply its
ordinary meaning unless context indicates otherwise. State v. Chappell, 127 Ohio
St.3d 376, 2010-Ohio-5991, 939 N.E.2d 1234, ¶ 17.
{¶ 38} Webster’s Dictionary provides several definitions of “operate.” See
Webster’s Third New International Dictionary 1580-1581 (1986). The most
relevant for our purposes is “to cause to function usually by direct personal effort.”
Id. at 1581. The example it uses for this definition is “to operate a car.” Id. The
Random House Dictionary provides a similar definition: “[T]o work or use a
machine, apparatus, or the like.” Random House Dictionary of the English
Language 1357 (2d Ed.1987); see also Shorter Oxford English Dictionary 2005
(5th Ed.2002) (“Cause or direct the functioning of; control the working of (a
machine etc.)”).
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{¶ 39} Plugging that ordinary meaning into the statute at hand, Wilson’s use
of her car constituted operation. By engaging the engine, Wilson caused the car to
function. No doubt, a car’s primary operation is transportation. But cars function
in additional ways, too, such as by playing music, producing an electric charge
(think jumper cables), and, as applicable here, heating and cooling. All of these are
ways in which a person might operate a car without driving it.
{¶ 40} Indeed, it is significant that the General Assembly chose to
criminalize the operation of a vehicle while under an OVI suspension, not simply
the driving of a vehicle. The legislature’s choice of verb—operate, not drive—
strongly suggests that operation does not require movement. “Drive,” the lead
opinion correctly observes, connotes the use of a vehicle’s movement function, lead
opinion, ¶ 14, whereas “operate”—surely the broader word—implicates the full
range of a car’s functions. “Certainly, had the General Assembly intended”
operation to require movement, “it would have chosen words to that effect.” In re
Application of Columbus S. Power Co., 138 Ohio St.3d 448, 2014-Ohio-462,
8 N.E.3d 863, ¶ 26.
B. Context and Caselaw Reinforce that the Ordinary Meaning of Operate Applies
{¶ 41} Rather than apply the ordinary meaning, the lead opinion adopts a
statutory definition of operate that by its own terms applies only to other chapters
of the Revised Code. See R.C. 4511.01(HHH). This is a misstep. A little
background helps to explain why.
{¶ 42} The statutory definition was enacted after this court in several
decisions construed what it meant to “operate” a motor vehicle. In State v. Cleary,
a police officer found a man who was drunk and passed out in the driver’s seat of
his running car, which was parked outside of a bar. 22 Ohio St.3d 198, 198, 490
N.E.2d 574 (1986), superseded by statute as stated in Doe v. Marlington Local
School Dist. Bd. of Edn., 122 Ohio St.3d 12, 2009-Ohio-1360, 907 N.E.2d 706.
This court held that “[e]ntering a motor vehicle, putting the key in the ignition[,]
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and starting and engaging the engine in a stationary position are sufficient acts to
constitute operation within the meaning of R.C. 4511.19(A)(1).” Id. at paragraph
two of the syllabus. Central to the court’s reasoning was that operating
“encompasses a broader category of activities” than does driving. Id. at 199. This
court later reaffirmed that holding in State v. McGlone, 59 Ohio St.3d 122, 570
N.E.2d 1115 (1991).
{¶ 43} This court further broadened its construction of operate in
consolidated cases in which police found each defendant drunk and sleeping in the
driver’s seat of his motor vehicle. State v. Gill, 70 Ohio St.3d 150, 151, 637 N.E.2d
897 (1994). In each case, the ignition key to the vehicle was in the ignition but the
engine was not running. Id. One of the lower courts had attempted to distinguish
Cleary by drawing a line between having the keys in the ignition and having the
engine running. Gill at 151, 155. But this court rejected that construction of operate
and held that placing the key in the ignition, without starting the car, sufficed to
trigger R.C. 4511.19’s prohibition on operating a motor vehicle while intoxicated.
Gill at 154.
{¶ 44} One can certainly question the logic of Gill: it is doubtful that anyone
in common parlance would refer to someone sitting in a parked car with the engine
off as operating the car. And the legislature ultimately responded. It enacted
legislation that split what had previously been considered an OVI offense into two
separate crimes. It created a statutory definition of operate for purposes of the OVI
statute that defined the word to mean “to cause or have caused movement of a
vehicle.” Am.Sub.S.B. No. 123, 149 Ohio Laws, Part II, 2467, 2951, codified at
R.C. 4511.01(HHH). At the same time, it created a separate offense, subject to a
lesser punishment, of having physical control of a vehicle while under the
influence. 149 Ohio Laws, Part II, at 3001. The physical-control offense prohibits
an intoxicated person from possessing the car key while sitting in the driver’s seat.
R.C. 4511.194(A)(2) and (B).
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January Term, 2022
{¶ 45} The legislature could have applied the new definition of operate to
the operation-of-a-vehicle-under-an-OVI-suspension offense. But it chose not to
do so. The new definition of operate applies only “[a]s used in [Chapters 4511]
and * * * 4513 of the Revised Code,” R.C. 4511.01—not to Chapter 4510, the
chapter at issue here. Nevertheless, the lead opinion does what the legislature opted
not to do—it applies this new definition to the operation-while-under-an-OVI-
suspension offense.
{¶ 46} There are all kinds of problems with this approach. Most notably, it
is inconsistent with the express intent of the General Assembly. We “presume that
the General Assembly is fully aware of any prior judicial interpretation of an
existing statute when enacting an amendment.” Clark v. Scarpelli, 91 Ohio St.3d
271, 278, 744 N.E.2d 719 (2001). Thus, not only was the General Assembly aware
of the definition of operation set forth by this Court in Gill and Cleary, but it was
also aware that the definition had been regularly applied to operating-while-under-
suspension offenses. See, e.g., State v. Ewing, 6th Dist. Erie No. E-94-39, 1995
Ohio App. LEXIS 1650, *6-8 (Apr. 21, 1995); State v. Silva, 12th Dist. Warren No.
CA95-10-100, 1996 Ohio App. LEXIS 1811, *3-7 (May 6, 1996); State v. Peters,
2d Dist. Montgomery No. 20574, 2005-Ohio-3658, ¶ 33-34; State v. Cochran, 2d
Dist. Montgomery No. 22240, 2008-Ohio-3612, ¶ 23-27; Dayton v. Ahmad, 2d
Dist. Montgomery No. 24165, 2011-Ohio-2302, ¶ 56-59.
{¶ 47} Aware of this precedent, the General Assembly “made a considered
judgment to retain the relevant statutory text” in Chapter 4510. Texas Dept. of
Hous. & Community Affairs v. Inclusive Communities Project, Inc., 576 U.S. 519,
536, 135 S.Ct. 2507, 192 L.Ed.2d 514 (2015). A majority of this court may think
that the General Assembly should have amended the operating-while-under-
suspension statute, but that doesn’t give it the power to do what the legislature opted
not to do.
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{¶ 48} The lead opinion nevertheless implicitly amends the language in
R.C. 4511.01 setting forth the scope of the new definition of operate (“as used in
this chapter and Chapter 4513”) to include Chapter 4510. In the same vein, the
opinion concurring in judgment only “would infer that the General Assembly
intended the [new, statutory] definition of ‘operate’ to apply” to R.C. 4510.14.
Opinion concurring in judgment only, ¶ 27. The express limitation on the reach of
the new definition, as enacted, to Chapters 4511 and 4513 squarely contradicts that
“infer[ence].” These Justices just don’t believe the General Assembly meant what
it plainly said. But if that’s the case, the General Assembly could easily correct
course. Rather than wait on the legislature, though, the lead opinion impatiently
“rewrite[s] the statute in a manner that is pleasing to [it]” to correct perceived
legislative “inadvertence or inattention,” State ex rel. Clay v. Cuyahoga Cty. Med.
Examiner’s Office, 152 Ohio St.3d 163, 2017-Ohio-8714, 94 N.E.3d 498, ¶ 40 (lead
opinion).
{¶ 49} If it is ever permissible for us to rewrite a statute simply because we
believe the legislature made a mistake, such a power is reserved for the rarest of the
rare cases—ones in which it is indisputable that some technical error occurred in
the drafting process. See Sturges v. Crowninshield, 17 U.S. 122, 202-203, 4 L.Ed.
529 (1819) (Marshall, C.J.) (“if, in any case, the plain meaning of a provision * * *
is to be disregarded, because we believe the framers of that instrument could not
intend what they say, it must be one in which the absurdity and injustice of applying
the provision to the case, would be so monstrous, that all mankind would, without
hesitation, unite in rejecting the application”); United States v. X-Citement Video,
Inc., 513 U.S. 64, 82, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994) (Scalia, J., dissenting)
(“any ‘scrivener’s error’ doctrine” requires “the meaning genuinely intended but
inadequately expressed [to] be absolutely clear; otherwise we might be rewriting
the statute rather than correcting a technical mistake”); Antonin Scalia & Bryan
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January Term, 2022
Garner, Reading Law: The Interpretation of Legal Texts 237 (2012). This is not
such a case.
{¶ 50} In addition to being inconsistent with the legislation enacted by the
General Assembly, the court’s action is contrary to principles of stare decisis. The
statutory amendment was explicit that the new definition of operate applies only as
the word is “used in [Chapter 4511] and in Chapter 4513.” R.C. 4511.01. Until
now, at least, the definition from Cleary and its progeny remained good law outside
those two chapters. Today, the court effectively overrules these cases. In doing so,
however, it does not take into account any of the traditional considerations that we
apply in overruling established precedent. See, e.g., Westfield Ins. Co. v. Galatis,
100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256, ¶ 48; State v. Harper, 160
Ohio St.3d 480, 2020-Ohio-2913, 159 N.E.3d 248, ¶ 40. The court simply decides
that it will do what the legislature declined to do.
{¶ 51} This flips on its head the principle that precedent that “involves
statutory interpretation” is owed greater stare decisis effect than other sources of
law, because the legislature can always amend a statute in light of a court’s
construction. Rocky River v. State Emp. Relations Bd., 43 Ohio St.3d 1, 6, 539
N.E.2d 103 (1989); see also Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406,
52 S.Ct. 443, 76 L.Ed. 815 (1932) (Brandeis, J., dissenting). Here, the legislature
had a prime opportunity to amend the statute but chose not to, even though it was
amending other sections of the Revised Code. Yet the court refuses to give stare
decisis effect to our precedent.
{¶ 52} The lead opinion strives mightily to get around the precedent
problem posed by Clearly and Gill. Those cases, it announces, are not controlling
because the court there interpreted the OVI statute “and this is not an OVI case.”
Lead opinion at ¶ 16. That distinction, however, is fanciful. There is no language
in Cleary or Gill that limits their application to the OVI statute.
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{¶ 53} Indeed, the crime of OVI consists of the following elements: (1)
operating, (2) “any vehicle,” (3) “within this state,” (4) while “under the influence
of alcohol” or drugs. R.C. 4511.19(A)(1). No one contested in Cleary or Gill that
the defendants had been under the influence, occupying a vehicle, or within Ohio.
The sole question in both cases was whether the defendant’s conduct met the
crime’s operating-a-vehicle element. See Cleary, 22 Ohio St.3d at 199, 490 N.E.2d
574; Gill, 70 Ohio St.3d at 154, 637 N.E.2d 897. The law at issue today likewise
criminalizes “operat[ing] any motor vehicle” in certain circumstances. R.C.
4510.14(A). The two crimes have different circumstantial elements: OVI requires
intoxication whereas the suspension law requires a suspended license and adds an
on-public-roads element. But on the issue before us, the OVI law and the
suspension law are alike: the actus reus for both is operating a vehicle. The
circumstantial difference between operating a car while under the influence versus
operating one while under a license suspension does not change the meaning of
operating a vehicle. That precedent is on point and, for purposes of Chapter 4510,
has not been supplanted by the legislature.
C. Precious Little
{¶ 54} The lead opinion’s interpretation of the statute flies in the face of
plain meaning. It is contrary to the intention of the legislature as demonstrated by
its enactments. And it defies principles of stare decisis. So what does the lead
opinion offer in support of its reading? Precious little.
{¶ 55} The lead opinion finds it “persuasive” that R.C. 4510.14 is titled
“[d]riving under OVI suspension” and infers from this that operating simply means
driving. Lead opinion at ¶ 14. It should know better. To start, Ohio law explicitly
provides otherwise. The very first provision of the Revised Code states that
statutes’ titles “do not constitute any part of the law.” R.C. 1.01. Thus, we have
deemed statutes’ titles “irrelevant to the substance of a code provision.” Cosgrove
v. Williamsburg of Cincinnati Mgt. Co., 70 Ohio St.3d 281, 284, 638 N.E.2d 99122
January Term, 2022
(1994). And if that weren’t enough, a review of the original version of R.C. 4510.14
enacted by the legislature in 2002 reveals that the original enactment did not contain
any section titles at all. See Am.Sub.S.B. No. 123, 149 Ohio Laws, Part II, 2889;
see also United States v. Castro, 837 F.2d 441, 442 (11th Cir.1988), fn. 1 (titles that
were not part of a statute passed by the legislature, but rather were added “by those
responsible for the codification of legislation,” cannot be used to ascertain
legislative intent). The lead opinion’s reliance on the law’s title underscores the
weakness of its textual analysis.
{¶ 56} The lead opinion tries to hinge its result on public policy. It suggests
that the broad definition of operate may criminalize innocent conduct, leading to
“[un]just and [un]reasonable results.” Lead opinion at ¶ 15. And certainly one can
debate the pros and cons of a broad definition of operate. Is it fair to punish
someone with an OVI license suspension for merely sleeping off their intoxication
in a running car? On the other hand, shouldn’t we be worried about someone with
a history of driving drunk being one gear-shift away from endangering others?
{¶ 57} But those kinds of judgments are best left to the General Assembly,
not to this court. Indeed, the history here demonstrates exactly why those kinds of
public-policy considerations are reserved for the General Assembly. In enacting
R.C. 4511.01(HHH), the legislature split the baby between the viewpoint that we
ought not unnecessarily punish those who aren’t actually driving and the viewpoint
that those who are drunk ought not be in the driver’s seat of a car. It did not let a
person in physical control off without punishment, but rather provided a lesser
penalty for that offense and a more severe penalty for those who actually drive
while drunk. See R.C. 4511.19; R.C. 4511.194.
{¶ 58} This court, though, does not have the institutional competence to
make such policy judgments. Nor do we have the capability to institute the kind of
calibrated legislative response that the legislature enacted by separating the
physical-control offense from the OVI offense. And this is precisely why we
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should stick to our job and leave policymaking and legislating to the General
Assembly.
III. Conclusion
{¶ 59} Because Wilson operated her vehicle, I respectfully dissent.
KENNEDY, J., concurs in the foregoing opinion.
_________________
Andrew W. Garth, Cincinnati City Solicitor, William T. Horsley, Cincinnati
City Prosecuting Attorney, and Jonathon Vogt and Meagan D. Woodall, Assistant
Prosecuting Attorneys, for appellant.
Raymond T. Faller, Hamilton County Public Defender, and David
Hoffmann, Assistant Public Defender, for appellee.
_________________
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