City of Akron v. Doane

391 N.E.2d 755, 59 Ohio Misc. 1, 13 Ohio Op. 3d 48, 1978 Ohio Misc. LEXIS 87

• Court: Akron Municipal Court
• Decided: August 11, 1978
• Docket: No. 78 TRD 10791
• Status: Published

Opinion

Geoege. J.

The defendant, Patricia S. Doane, was. charged! with failing" to stop and" disclose her identity at the scene of an accident, under Section 436.11, Akron City Code of 1970, as amended. The language used in the Akron City Code is the same as that in R. C. 4549.02.

On June 20, 1978, the defendant pled no contest and the court found her. guilty of failing to stop and disclose her identity at the scene of an' accident. The matter was scheduled for sentencing at a future date. Briefs were submitted by the city and the defendant, .concerning the question of whether or not the first thirty days of a license suspension, required to be imposed by reason of R. C, 4507.16, is absolute, or whether it may be modified in a hardship case, by an occupational right to drive.

It is stipulated by the parties that the defendant is the mother of a six-vear-old child and that sheds the sole support of. that, child. Further it is stipulated that the ..defendant is employed'oh a part-time basis ás á barmaid áhd as a painter and that it is necessary for her to drive tó and froiñ these employments. \ - ■

R. C. 4507.16, in pertinent part, reads:

‘‘.The- trial judge of. any court of: record shall * * * suspend for not less than,'thirty days * * * the license of any person' who is convicted of or pleads guilty to. * * *

(E)/Failing to stop and disclose identity at the scene of the accident' when required by law to do so * * *

“"N'o court shall suspend the first thirty days of. suspension of license provided for under this section.” (Emphasis added.), ......... .. . ....

Sentencing was set for August 8, 197¿, and oral argument was had concerning the issue of the mandatory.thirty-day license suspension and whether or not such suspension CQuld.be qualified to permit occupational driving.

The defendant argued that the case of Cincinnati v. Phelps (Cin. Mun. Ct. 1961), 85 Ohio Law Abs. 602, supported the proposition that the court could, within.^ its plenary .-powers, and, in-: a ¡ hardship ..case.:rniodi£y the. first thirty days of a license suspension/-The. defendant/contends that the court has inherent power- to' suspend any ^art o’f á sentence when-"conditions justify' such modifies-’ tion. Further, the defendant árgued that contiguous- municipal courts allow license suspension modifications in "similar eases and that the equal protection bf the laws provision of the constitution would therefore require that this court do likewise. ' ■":'

■ The prosecution- argued' that the language bf B.‘ O.-4507.16 is mandatory and that -the principle of law laid down in State, ex rel. Moraites, v. Gorman (1975), 42 Ohio St. 2d 175, is controlling. That case dealt with the mandat tory three-day ■ jail term' in ' driving-While-under-the-in-flueriee convictions-. The city argues that'the case is analogous to the'one at hand, since the statute places a duty upon the court to unequivocally impose a three-day jail term. And the-ease so holds. Such imposition is to be made without qualification or modification. Therefore, it follows that the mandatory' license suspension must be imposed' without any privileges to drive during the first thirty -days. The prosecution further relied upon 1968 Ohio Atty. Glen. Opsi 2-82, No. 68-070, which discusses this very subject.

■ - The court' has reviewed - the -authorities' cited by both parties, ;the applicable 'statutes, Ohio Jurisprudence- 2d, and Words and Phrases. , :

This court is of the opinion1 -that the- meaning of the word “suspend,” ás-used in It. 0. 4507.16, is Controlling to a determination as to whether or nbt the first thirty days-bf á license suspension may be modified of' otherwise qualified só'ásto permit'driving for work purposes.

• - .“Suspend” is-defined as to-cause to cease for a time, to interrupt, to delay, hold in abeyance, render temporarily inoperative, arrest, to stop for a time but wdth the expectation or purpose of resumption. 40A Words and Phrases, Suspend; Suspension (Perm. Ed).

The first part of R. C. 4507.16 states, in effect, that the trial judge shall suspend for a minimum of thirty days the license of a person who has been convicted of failing to stop at the scene of an accident. It is not disputed that at the very least a thirty-day license suspension is mandated by reason of such language. Therefore, the license of this defendant must be rendered temporarily inoperative or stopped for a minimum of thirty days.

But R. C. 4507.16 goes on further to say that the first thirty days of such license suspension shall not be suspended. Again the language of the statute is.mandatory by requiring that the first thirty days of such license suspension is not to be interrupted or arrested. In other words, the first thirty days of such a suspension is to be absolute; to bo imposed without interruption or interference. Therefore, it cannot be modified or qualified to allow any driving privileges during that first thirty-day period.

From the foregoing, the court finds that the first thirty days of a license suspension, imposed by reason of R. C. 4507.16 is absolute.

With regard to the defendant’s argument of due process of law, the court believes that should other courts allow such modifications, they are in conflict with the statutory duty which requires an unqualified thirty-day license suspension. As such, this cannot be said to be a denial of due process of law since it is contrary to law.

The law provides no authority to suspend, for any reason, the first thirty days of a license suspension provided under R. C. 4507.16. Therefore, the first thirty days of such a license suspension is absolute.

In view of the foregoing, the court sentences the defendant to the following: A fine of $100.00 and the costs of this action; three days in the Summit County Jail, which three days are suspended on condition that the defendant not repeat this offense; and a thirty-day license suspension.

Judgment accordingly.