City of Kettering v. Baker

We concur in the decision affirming the judgment of the Kettering Municipal Court, but we disagree with that part of Judge Whiteside's opinion which holds that R. C. 4511.191 requires a police officer to administer a chemical test of the blood, breath or urine of every person arrested for driving a motor vehicle while under the influence of alcohol unless such person refuses to take the test or is dead, unconscious, or otherwise incapable of refusing. The second sentence of that section merely designates who is authorized to give the test, if one is given. It does not require that the police officer so designated shall give a test in every case. Our view that the giving of the test is not mandatory adds support to the conclusion that the first assignment of error is not well taken.

Hence, we reach the same conclusion as did Judge Whiteside, that the judgment should be affirmed.

WHITESIDE, J., of the Tenth Appellate District, sitting by designation in the Second Appellate District. *Page 571