dissenting. I am compelled to dissent in case No. 72-158 for the very patent reasons reflected by the record before us that the arrest of the appellant without a warrant was without probable cause under R. C. 2935.-03,* and that there is an absence of proof of appellant’s *278operating a vehicle while under the influea.ee of intoxicating liquor.
Appellant’s motion to suppress the evidence, which was overruled, challenges the legality of the arrest.
The record establishes that the arresting police officer, Patrolman Dickenson, arrived at 1:50 a. m. at the scene of a collision between two vehicles, one of which had struck the rear of the other, hi the city of Oregon. When the officer got there, there were no individuals in either of the vehicles involved. There were individuals standing around, and he inquired as to who was the driver of the rear vehicle. The appellant came forward and identified himself as the driver. The police officer then asked appellant to come hack to the squad car. At that time, the officer noticed ° that the man’s speech was somewhat slurred when I spoke with Mm. He was a little unstable on his feet and somewhat incoherent. He had to be told a couple of times to come back to the police car.” In Ms opinion, the * * man appeared to be under the influence of some sort of intoxicant from his physical appearance.”
At the trial, the arresting officer testified that he took a statement from defendant, “as to how the accident occurred.” This statement is not in the record before us. These questions were then asked of the officer:
“Q. At this time, did you charge him with any offense?
“A. Not until we had his complete statement to what happened.
“Q. After that, did you charge him?
*279“Q. What did you then do?
“A. Well, he was informed that he was going to be transported to our station being charged with operating a vehicle under the influence of intoxicants and I informed his wife, who was with him, what was going to happen. He was brought to the station and he was given the standard physical and Breathalyzer test for intoxication.”
Upon cross-examination of this police officer, he testified as follows:
“Q. ° ® You say you did not observe anybody driv-
ing any cars, Is that right?
“A. Yes, sir.
“Q. You arrested the defendant?
“A. Yes, sir.
<4Q. You have a warrant?
“A. No, sir.
“Q. Did you Issue [sic] a warrant after you got him down here?
“A. No, sir, affidavit citation.
íáQ. Pías there ever been a warrant issued?
áíA. No, sir.
“<Q. Just the affidavit?
(lA. Yes, sir.
ÍÍ(Q. You did not see the man driving?
UA„ No, sir.
“Q. Did your partner see him drive It?
“A. No, sir.”
It is noteworthy that Officer Dickenson did not arrest the defendant for Intoxication. The record is also without any warning to defendant relative to the consequences of refusing the test provided for under R. C. 4511.191(G) and (D)„
The appellant was not observed in the operation of the automobile. There is absolutely not a particle of evidence as to the time of operating the motor vehicle, or as to the time when there was evidence to show some influence of intoxicants. The record fails to show how long before *280the police arrived that the alleged rear-end collision occurred. It also fails to show the alleged intoxicated condition of defendant at the time the collision allegedly occurred, or what the defendant was doing in the indefinite period between the time the alleged collision occurred and the precise moment when the police arrived.
With such a chronological lacuna gapping the proof of the alleged violation in the record before us, I have grave doubts that due process was accorded this defendant. One of the essential elements of this offense, which the state must prove beyond a reasonable doubt, is the answer to the question: “Was the defendant found operating a vehicle at the time and place of his arrest?” Part of the evidence, which I must assume satisfies the majority on this essential element, is circumstantial. But circumstantial evidence must be consistent only with the hypothesis of guilt; if it is consistent with any hypothesis of innocence, then it fails as proof of that essential element. Certainly, if the rear-end collision occurred some substantial time before the police arrived at the scene, then the appellant could have consumed intoxicants after he had the collision, accounting for the results of the test. But the record does not provide a continuum of proof, beyond a reasonable doubt, as to each essential element of the crime of operating a motor vehicle while under the influence of intoxicating liquor.
As Justice Zimmerman pointed out in Mentor v. Giordano (1967), 9 Ohio St. 2d 140, chronology is an important element in a prosecution for driving while intoxicated, and relationship must be established between the time there was evidence to show the influence of intoxicants and the time of operation of a vehicle.
In paragraph two of the syllabus in Giordano, this court held:
“Penal statutes and ordinances are to be interpreted and applied strictly against the accuser and liberally in favor of the accused, and where the accused is charged under a statute or ordinance with operating a motor ve*281hide while under the influence of intoxicating liquor—a misdemeanor—the burden rests upon the prosecution to prove every essential element of the offense beyond a reasonable doubt. ’ ’
Accordingly, based on the factual pattern presented to us, I conclude that under statutory and due process requirements the arrest here was invalid; that appellant’s motion to suppress should have been sustained; and that there was a failure of proof beyond a reasonable doubt as to each essential element of the crime charged.
I would reverse the judgment of the Court of Appeals and discharge the defendant.
R. C. 2935.03 reads as follows:
“A sheriff, deputy sheriff, marshal, deputy marshal, or police officer shall arrest and detain a person found violating a law of this state, or an ordinance of a municipal corporation, until a warrant can be obtained.
“When there has been a violation or there is reasonable ground to believe there has been a violation of Section 2901.25, 2907.20, 2909.12, insofar [as] it relates to shooting at trains, motor vehicles, or vessels, *278or Section 2923.01 of the Sevised Code, or of any ordinance of a municipal corporation which substantially incorporates any offense contained in such chapters or section, a sheriff, deputy sheriff, marshal, deputy marshal, or police officer may arrest without a warrant any person whom he has reasonable cause to believe is guilty of the violation, and detain him. until a warrant can. be obtained.
“A constable within the limits of the township in which said constable has been appointed or elected, shall arrest and detain a person found by him in the commission of a misdemeanor, either in violation of a law of this state or an ordinance of a village, until a warrant can be obtained.”