[Cite as Lachowski v. Petit, 2019-Ohio-3328.]


                                     IN THE COURT OF APPEALS

                                 ELEVENTH APPELLATE DISTRICT

                                      PORTAGE COUNTY, OHIO


 STEPHEN M. LACHOWSKI,                            :         OPINION

                   Appellee,                      :
                                                            CASE NO. 2018-P-0070
         - vs -                                   :

 DONALD J. PETIT, REGISTRAR,                      :
 DEPARTMENT OF PUBLIC SAFETY,
 BUREAU OF MOTOR VEHICLES,

                   Appellant.                     :


 Appeal from the Portage County Court of Common Pleas, Case No. 2018 CV 00430.

 Judgment: Affirmed.


 Robert G. Walton, and Gretchen A. Ebner, The Law Office of Robert G. Walton, 1496
 South Green Road, South Euclid, OH 44121 (For Appellee).

 David Yost, Ohio Attorney General, 30 East Broad Street, 16th Floor, Columbus, OH
 43215, Dale Thomas Vitale, Assistant Attorney General, and Brian R. Honen, Assistant
 Attorney General, 30 East Broad Street, 26th Floor, Columbus, OH 43215 (For
 Appellant).



THOMAS R. WRIGHT, P.J.

        {¶1}      Appellant, Donald J. Petit, Registrar of the Ohio Bureau of Motor Vehicles,

appeals the trial court’s decision reversing disqualification of Stephen M. Lachowski’s

commercial driver’s license because disqualification is not authorized. We affirm.

        {¶2}      The facts are undisputed.
       {¶3}   On January 6, 2018, Lachowski was arrested in Portage County, Ohio for

operating his personal vehicle, a 2005 Saturn, under the influence in a private parking lot.

The administrative license suspension/CDL disqualification form, completed by the officer

and admitted at the hearing, states that Lachowski failed the field sobriety tests and

refused to submit to a chemical test for alcohol and/or controlled substances. The form

also indicates that Lachowski’s driver’s license and commercial driver’s license were

seized. Lachowski signed the document agreeing that the advice on the back of the form

was read to him.

       {¶4}   The investigative report supplement, completed by the arresting officer and

admitted at the hearing, provides that upon the officer’s arrival at the VFW parking lot,

Lachowski was “sitting in the driver seat with the vehicle’s engine still running. * * *

Stephen admitted he was driving the vehicle, and as a result of his reckless driving, [his

car] got stuck in a snow bank.” He was arrested and charged with OVI, refusal, and failure

to maintain reasonable control.

       {¶5}   Following receipt of the disqualification form, the Ohio BMV recorded

Lachowski’s administrative license suspension under R.C. 4511.191, and it separately

began the disqualification process regarding his CDL via R.C. 4506.17.

       {¶6}   The administrative license suspension (ALS) of Lachowski’s regular driver’s

license, under R.C. 4511.191, was subsequently “terminated” in his related Portage

County Municipal Court criminal case. The ALS appeal hearing transcript confirms that

the prosecuting attorney agreed with Lachowski’s argument that R.C. 4511.191 did not

apply because Lachowski was on private property at the time of his OVI arrest. The trial




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court acknowledged the parties’ agreement and held that Lachowski’s “Administrative

License Appeal is granted.”

      {¶7}   The corresponding Ohio Bureau of Motor Vehicles ALS Court Disposition

Notification form, signed by the municipal court judge and dated February 18, 2018, states

that “the appeal was granted,” and the box is checked next to the preprinted text stating:

“ALS terminated per plea agreement, ALS reinstatement fee not to be collected.”

      {¶8}   The Ohio BMV notice sent to Lachowski regarding his pending CDL

disqualification states that his CDL is being disqualified for one year based on a

“conviction” for ALS/refusal based on R.C. 4506.17.            Lachowski appealed the

disqualification to the Bureau arguing that neither R.C. 4511.191 nor R.C. 4506.17

applied, and as such, the disqualification of his CDL was contrary to law. He argued that

R.C. 4511.191 did not apply because he was operating his personal vehicle on private

property at the time of his OVI arrest. Lachowski also argued that R.C. 4506.17 did not

apply because a plain reading of R.C. 4506.17(B) establishes that this statute only applies

when an individual is operating or driving a commercial motor vehicle.

      {¶9}   Following an administrative hearing, the hearing examiner disagreed with

Lachowski’s arguments and found that because Lachowski was the “holder” of a

commercial driver’s license, R.C. 4506.17(A) applied and was the applicable implied

consent statute. She recommended a one-year disqualification of his CDL. Lachowski

objected, but Petit nevertheless adopted the hearing officer’s recommendation and

disqualified Lachowski’s CDL for one year based solely on R.C. 4506.17.

      {¶10} Lachowski appealed to the court of common pleas and secured a stay of

his CDL disqualification pending appeal. Following briefing, the trial court agreed with




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Lachowski and held that the plain language of R.C. 4506.17(B) confirms that this

provision is inapplicable because he was operating his personal vehicle at the time of his

OVI arrest. Consequently, the trial court found that Petit’s order disqualifying Lachowski’s

CDL via R.C. 4506.17 was contrary to law.

       {¶11} Petit appeals and raises two assigned errors, which we address collectively:

       {¶12} “[1.] The trial court committed prejudicial error by holding that the plain

language in Revised Code 4506.17(B) limits the application of the Revised Code 4506.17

only to persons operating commercial vehicles. T.d. 11.

       {¶13} “[2.]   The trial court erred by not affirming the lawful and reasonable

application of the statute by the Registrar. T.d. 11.”

       {¶14} In administrative appeals, the common pleas court reviews an agency’s

decision and assesses whether it is supported by reliable, probative, and substantial

evidence and whether it is in accordance with law. MacKnight v. Lake Cty. Dept. of

Human Serv., 107 Ohio App.3d 181, 184, 667 N.E.2d 1287 (10th Dist.1995), citing Univ.

Hosp., Univ. of Cincinnati College of Medicine v. State Emp. Relations Bd., 63 Ohio St.3d

339, 587 N.E.2d 835, paragraph one of the syllabus (1992). Upon reviewing questions

of law, however, our review and the court of common pleas’ review is plenary. Id; R.C.

2506.04; Henley v. Youngstown Bd. of Zoning Appeals, 90 Ohio St.3d 142, 2000-Ohio-

493, 735 N.E.2d 433. Thus, we exercise our independent judgment and determine

whether the administrative order is in accordance with law. Akron v. Ohio Dept. of Ins.,

10th Dist. Franklin No. 13AP-473, 2014-Ohio-96, 9 N.E.3d 371, ¶19.

       {¶15} Upon applying a statute, a court must determine and give effect to

the legislative intent of a statute, and the intent should be determined from the plain




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language of the statute. State ex rel. Solomon v. Police & Firemen's Disability & Pension

Fund Bd. of Trustees, 72 Ohio St.3d 62, 65, 647 N.E.2d 486 (1995); Stewart v. Trumbull

Cty. Bd. of Elections, 34 Ohio St.2d 129, 130, 296 N.E.2d 676 (1973).

       {¶16} “When the statutory language is plain and unambiguous, and conveys

a clear and definite meaning, we must rely on what the General Assembly has

said.” Jones v. Action Coupling & Equip., Inc., 98 Ohio St.3d 330, 2003-Ohio-1099, 784

N.E.2d 1172, ¶12, citing Symmes Twp. Bd. of Trustees v. Smyth, 87 Ohio St.3d 549, 553,

721 N.E.2d 1057 (2000). When a statute is ambiguous, however, courts must employ

the rules of statutory interpretation and determine the legislative intent. Wingate v.

Hordge, 60 Ohio St.2d 55, 58, 396 N.E.2d 770 (1979).

       {¶17} The at-issue statute here is R.C. 4506.17, “Alcohol and controlled

substance testing; disqualification of drivers,” which states in part:

       {¶18} “(A) Any person who holds a commercial driver's license or commercial

driver's license temporary instruction permit, or who operates a commercial motor vehicle

requiring a commercial driver's license or permit within this state, shall be deemed to have

given consent to a test * * * for the purpose of determining the person's alcohol

concentration or the presence of any controlled substance or a metabolite of a controlled

substance.

       {¶19} “(B) A test or tests as provided in division (A) of this section may be

administered at the direction of a peace officer having reasonable ground to stop or detain

the person and, after investigating the circumstances surrounding the operation of the

commercial motor vehicle, also having reasonable ground to believe the person was

driving the commercial vehicle while having a measurable or detectable amount of alcohol




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or of a controlled substance or a metabolite of a controlled substance in the person's

whole blood, blood serum or plasma, breath, or urine. Any such test shall be given within

two hours of the time of the alleged violation.

       {¶20} “(C) A person requested by a peace officer to submit to a test under division

(A) of this section shall be advised by the peace officer that a refusal to submit to the test

will result in the person immediately being placed out-of-service for a period of twenty-

four hours and being disqualified from operating a commercial motor vehicle for a period

of not less than one year, and that the person is required to surrender the person's

commercial driver's license or permit to the peace officer.

       {¶21} “(D) If a person refuses to submit to a test after being warned as provided

in division (C) of this section or submits to a test that discloses the presence of an amount

of alcohol or a controlled substance * * * the person immediately shall surrender the

person's commercial driver's license or permit to the peace officer. The peace officer shall

forward the license or permit, together with a sworn report, to the registrar of motor

vehicles certifying that the test was requested pursuant to division (A) of this section and

that the person * * * refused to submit to testing * * *. The form and contents of the report

required by this section shall be established by the registrar, by rule but shall contain the

advice to be read to the driver and a statement to be signed by the driver acknowledging

that the driver has been read the advice and that the form was shown to the driver.

       {¶22} “(E) Upon receipt of a sworn report from a peace officer as provided in

division (D) of this section, or upon receipt of notification that a person has been

disqualified under a similar law of another state or foreign jurisdiction, the registrar shall




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disqualify the person named in the report from driving a commercial motor vehicle for the

period described below:

       {¶23} “(1) Upon a first incident, one year[.]” (Emphasis added.)

       {¶24} An administrative license suspension (ALS) under R.C. 4511.191 is distinct

from a license disqualification under R.C. 4506.17. R.C. 4511.191(G) makes it clear that

a driver may be subject to both an ALS and a disqualification for the same offense or

incident and that a disqualification runs concurrent with a license suspension when both

provisions apply. And while an ALS under R.C. 4511.191 terminates upon the individual’s

guilty plea or conviction for operating a vehicle in violation of R.C. 4511.19, a first refusal

or failed test under R.C. 4506.17 requires a one-year disqualification of the person’s CDL

regardless of the outcome of the criminal proceedings. A disqualification under R.C.

4506.17 does not hinge on or arise from a conviction. R.C. 4506.17(D).

       {¶25} Because the statutory provisions here are clear, we apply them as

written. Boley v. Goodyear Tire & Rubber Co., 125 Ohio St.3d 510, 2010-Ohio-2550, 929

N.E.2d 448, ¶ 20. A plain reading of R.C. 4506.17, the only authority relied on by Petit

for disqualifying Lachowski’s CDL, compels affirmance of the trial court’s decision.

       {¶26} Petit urges that because subsection (A) provides that it applies to “[a]ny

person who holds a commercial driver's license[,]” and states that any CDL holder is

deemed to have given consent, our analysis should stop there. And because Lachowski

was a CDL holder, he impliedly consented.           However, subsection (A) provides no

guidance on when the statute applies. Further, we must read the statute as a whole, not

piecemeal, to ascertain its plain meaning.




                                              7
       {¶27} The next subsection, subsection (B), provides that CDL holders and

persons operating a commercial vehicle are deemed to have impliedly consented to a

test when an officer has “reasonable ground[s] to stop or detain the person and, after

investigating the circumstances surrounding the operation of the commercial motor

vehicle, also having reasonable ground[s] to believe the person was driving the

commercial vehicle while having * * * alcohol or * * * a controlled substance or a metabolite

of a controlled substance in the person's” system. (Emphasis added.) Then, subsection

(C) provides that when a person, as defined in subsection (A), is “requested by a peace

officer to submit to a test” and the driver refuses, then the driver will be “disqualified from

operating a commercial motor vehicle for a period of not less than one year[.]” R.C.

4506.17(C). One cannot reach the meaning of the refusal subsection until ascertaining

who the provision applies to, as outlined in subsection (A), and when an officer can

request a driver or operator to submit to a test, as spelled out in subsection (B).

       {¶28} As found by the trial court, the plain language of R.C. 4506.17(B) confirms

that a disqualification thereunder arises only when the incident involves a commercial

vehicle. The legislature’s intent that this provision only applies when a person is driving

a commercial vehicle is evident based on its decision to use words stating that the officer’s

investigation must show that incident involved a commercial motor vehicle.

       {¶29} Petit’s argument that the language in R.C. 4506.17(A) evinces the

proposition that this statute applies to holders of CDLs regardless of the vehicle he or she

is operating is not supported by the statutory language.          Petit’s desired, expanded

application of R.C. 4506.17 renders meaningless the language in subsection (B).




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       {¶30} Thus, because Petit disqualified Lachowski’s CDL via R.C. 4506.17, and

this provision is clear, it is inappropriate to delve into the drafters’ legislative intent and

the federal regulations relied on by Petit. “[A]bsent ambiguity, a court will

not delve into legislative intent but will give effect to the plain meaning of the statute, R.C.

1.49, even when a court believes that a statute results in an unfavorable outcome. It is

the province of the legislature to gauge public sentiment and to determine what is just.”

Wright v. State, 69 Ohio App.3d 775, 781, 591 N.E.2d 1279 (10th Dist.1990).

       {¶31} Accordingly, we do not consider the legislative intent and the FAA

regulations, as relied on by Petit. And to the extent that the statutory language is

inconsistent with the stated intent and any applicable federal regulations, achieving that

goal is not the function of the courts, but the legislature. Id.

       {¶32} Because the undisputed facts confirm that Lachowski was driving his

personal vehicle at the time of his OVI arrest, and not a commercial vehicle, R.C. 4506.17

does not apply.       And because R.C. 4506.17 was the sole authority for Petit’s

disqualification of Lachowski’s CDL for the duration of the proceedings, the

disqualification via R.C. 4506.17 is contrary to law.

       {¶33} Based on the foregoing, Petit’s assigned errors lack merit, and the trial

court’s decision is affirmed.



CYNTHIA WESTCOTT RICE, J.,

MATT LYNCH, J.,

concur.




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