City of Oregon v. Szakovits

Leach, J.,

concurring. In State v. Lewis (1893), 50 Ohio St. 179, it was held thats

“Where 0 * 0 the officer was absent when * # ° [the] offense was committed, and did not appear there until after the affray had ended, public order restored, and the guilty parties had departed from the vicinity, and all the information the officer had of the affray and of the parties to it, was the statements of by-standers who witnessed it, he has no authority in law to pursue and arrest the persons charged with the offense without first obtaining a warrant therefor.”

The holding in Lewis was predicated upon the conclusion that the power to arrest without warrant for breach of peace or other minor offense is given in order to maintain the public peace; that it therefore ceases when the offense is an accomplished fact which can no longer he prevented.

In the instant cases, the presence of an intoxicated individual in, or in the vicinity of, an automobile which obviously had been driven by Mm clearly indicates that he was intoxicated while driving. Under such circumstances, I am of the opinion that the offense is not “an accomplished *276fact,” which could no longer be prevented since such individuals could have easily resumed driving, in such intoxicated condition, unless prevented from doing so by the officer. Thus, I am of the opinion that, even as to the offense of driving while intoxicated, the defendants herein were “found violating a law of this state, or an ordinance of a municipal corporation” within the purview of R. C. 2935.-03. Here, knowledge by the officer of the violation is acquired through his own senses. See 5 American Jurisprudence 2d, 721 et seq., Section 31, Arrest (What amounts to committing offense in officer’s presence).

In any event, I think it clear that the officers were empowered to arrest for intoxication and that the validity of the arrest is not dependent upon the understanding of the arresting officer as to his authority to arrest for driving while intoxicated, or even as to his intent with respect thereto. In this aspect of the case I am in full agreement with the following statement of Crawford, J., in State v. Hatfield (1965), 1 Ohio App. 2d 346, at pages 347 and 348:

a* * « Jt is argued that defendant was arrested for driving while intoxicated by an officer who did not actually see him committing that offense. It is no answer to this contention to say that the circumstances pointed overwhelmingly to guilt.

“However, the answer does lie in the fact that the defendant was Hound violating a law of this state’ as required in Section 2935.03, Revised Code, for he was Hound in a state of intoxication,’ a misdemeanor under Section 3773.22, Revised Code. Therefore, it was lawful for the patrolman to arrest him. It mattered not what charge was thereafter filed or whether any charge was filed, if the original arrest was lawful. City of Columbus v. Glenn (1950), 60 Ohio Law Abs. 449; State v. Williams (1954), 98 Ohio App. 513.

“In each of these cases cited there is a syllabus indicating that a police officer may arrest without a warrant a person found in a state of intoxication who admits driving a motor vehicle which has been involved in a collision. *277However, the admission by the accused' that he was operating a motor vehicle is not necessary to authorize the arrest. As stated by Judge Miller in the opinion in Columbus v. Glenn, supra, 'The fact that he was found in a state of intoxication was sufficient to warrant the officer to make the arrest. Whether or not any charges were ever filed would not go to the arrest ab initio. It is our conclusion that the arrest in this instance was not illegal.’

“If one is found by a police officer committing a misdemeanor, he may he lawfully arrested, charged with that or any other misdemeanor, or charged with no offense whatsoever, without the arrest being thereby rendered illegal. Many an offender has been lawfully apprehended for a minor traffic violation and found' upon examination to he guilty of another offense or offenses, either felonies or misdemeanors, and either related or unrelated to the misdemeanor witnessed by the officer and justifying the original arrest.. If other misdemeanors are thus discovered, the offender enjoys no immunity from prosecution for them because they were not committed in the presence of the arresting officer. If the initial arrest was lawful he has suffered no deprivation of his rights.”

O’Neill, C. J., concurs in the foregoing concurring op-ion.