531 N.E.2d 775 | Ohio Ct. App. | 1987
Dale A. Hilderbrand entered pleas of guilty to charges that he violated R.C.
This appeal is prompted by the unusual fact that Hilderbrand was riding a bicycle at the time in question.
For his first assignment of error, Hilderbrand, who was apparently uncounseled at the time he entered his guilty pleas, contends that the trial court erred in entering a judgment of conviction because the complaint failed to charge an offense.
We disagree. This assignment does not present a novel issue. The Hamilton County Court of Appeals was presented with the identical issue in State v. Shepard (1981),
R.C.
"As used in sections
"(A) `Vehicle' means every device, including a motorized bicycle, in, upon, or by which any person or property may be transported or drawn upon a highway, except devices moved by power collected from overhead electric trolley wires, or used exclusively upon stationary rails or tracks, and except devices other than bicycles moved by human power."
We hold, as did the court in Shepard, that while R.C.
Because the statute includes bicycles, Hilderbrand's arguments for exempting bicyclists from the operation of R.C.
The first assignment is overruled.
For his second assignment of error, Hilderbrand asserts that "[t]he trial court erred in suspending appellant's operator's license as such sentence is not authorized by law where the conviction is based on the operation of a bicycle and not a motor vehicle."
The offenses occurred on June 28, 1986, and Hilderbrand's license was suspended pursuant to R.C.
"Except as otherwise provided in this section, the trial judge of any court of record, in addition to or independent of all other penalties provided by law or by ordinance, shall revoke the operator's or chauffeur's license or permit or nonresident operating privilege of any person who is convicted of or pleads guilty to a violation of section
"(1) If the offender has not been convicted, within five years of the offense, of a violation of section
Hilderbrand contends that the statute only permits the trial court to suspend a driver's license where the violation of R.C.
He puts great reliance on Wauseon v. Badenhop (1984),
"In reaching this conclusion, this court is giving plain meaning to the language of the statutes. If the General Assembly intended that one found guilty of driving while intoxicated, even if that person is driving a tractor, be subject to license revocation or suspension, then it is incumbent upon the General Assembly to so provide." Id. at 154, 9 OBR at 443,
Badenhop, however, construed an earlier version of R.C.
"The trial judge of any court of record shall, in addition to, or independent of all other penalties provided by law or by ordinance, suspend for not less than thirty days nor more than three years or revoke the license of any person who is convicted of or pleads guilty to any of the following:
"* * *
"(B) Operating a motor vehicle while under the influence of alcohol or any drug of abuse[.]" (Emphasis added.) (See 137 Ohio Laws, Part II, 2763.)
This earlier version of R.C.
The version of R.C.
R.C.
As we read this statutory language, "relating to operating a motor vehicle" refers to both R.C.
The state contends that the legislature has resolved the question of whether the R.C.
"(B) Except as otherwise provided in this section, the trial judge of any court of record, in addition to or independent of all other penalties provided by law or by ordinance, shall revoke the operator's or chauffeur's license or permit or nonresident operating privilege of any person who is convicted of or pleads guilty to a violation of section
"(1) If the offender has not been convicted, within five years of the offense and before or after March 16, 1983, of a violation of section
The state's contention is probably correct. In paragraph (B), the statute now refers to "vehicle" rather than "motor vehicle" in its reference to DWI violations of municipal ordinances. (Curiously, in subparagraphs [1], [2], and [3], "vehicle" replaces "motor vehicle" in the reference to DWI convictions under municipal ordinances, but "motor vehicle" is mentioned in the reference to per se convictions under municipal ordinances.)
Regardless of whether the state's position is correct, the latest revision of R.C.
The second assignment of error is sustained.
The judgment of the Vandalia *45 Municipal Court will be reversed and the case will be remanded for the sole purpose of vacating the license suspension.
Judgment accordingly.
BROGAN and WILSON, JJ., concur.