463 N.E.2d 52 | Ohio Ct. App. | 1983
This is an appeal from the Maumee Municipal Court. The appellant herein, a Michigan resident and holder of a valid Michigan driver's license, was found guilty by the court after entering a plea of no contest to the charge of operating a motor vehicle while under the influence of alcohol, in violation of R.C.
Appellant does not appeal his conviction; however, appellant does assign as error the following:
"The trial judge of an Ohio municipal court lacks jurisdiction to suspend or hold a driver's license issued by a foreign state even though the licensee has been convicted of violating R.C. §
The case sub judice provides this court with the opportunity to review the issue of whether a trial court of this state may suspend or revoke and take physical possession of a nonresident's driver's license, which was issued by a foreign state, upon the nonresident's conviction of operating a motor vehicle while under the influence of alcohol. This court has previously addressed this precise issue in State v. Mendez (1976), 3 O.O. 3d 352, and determined therein that a trial court not only has the authority, but the duty to so suspend and take physical possession of a nonresident's foreign-issued driver's license.
Our reading of Mendez, supra, reveals that the court relied on the language of R.C.
"The trial judge of any court of record shall, * * * 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 * * *." (Emphasis added.)
The Mendez court, looking solely at the language of R.C.
Although we are confident that the Mendez court believed its decision to be not only proper, but also necessary to protect the traveling public from the irresponsible actions of those persons, both residents and nonresidents alike, who insist on driving while intoxicated (see Mentor v. Giordano [1967],
Initially, we recognize, as did the court in Mendez, that by using the term "shall" in R.C.
We believe, however, that the Mendez court improperly defined the word "license." Our reading of Mendez, supra, reveals that the court considered a license to be only a tangible, physical permit which evidences that a person has been granted the privilege to operate a motor vehicle by the issuing state.2
We must look to R.C.
"* * *
"(C) `License' includes any license, permit, or privilege to operate a motor vehicle issued under the laws of this state including:
"* * *
"(3) Any nonresident's operating privilege."
The privilege granted to a nonresident which permits that nonresident to operate a motor vehicle upon the highways of this state arises by operation of R.C.
"Nonresidents, permitted to drive upon the highways of their own states, may operate any motor vehicle upon any highway in this state without examination or license under sections
Thus, when a trial judge of any court of record suspends or revokes the license of a nonresident because that nonresident has pled guilty to or has been convicted of operating a motor vehicle while under the influence of alcohol, as the trial judge is required to do by R.C.
We also find that the Superior Court of Pennsylvania expressed a similar view in the case of Commonwealth v. Levy (1961),
"The license is issued to appellee [Ms. Levy] only in Pennsylvania, and only Pennsylvania can suspend or revoke it. New Jersey does not suspend the operator's license, but withdraws from the licensee the privilege of operating on its highways. * * *"
Finally, we note that the court in Mendez, supra, indicated that it was concerned with preventing the discriminatory treatment which would result if a court of this state could suspend or revoke a resident's license, but only a nonresident's privilege to operate a motor vehicle within this state. In addressing this concern, it must first be emphasized thatwhoever violates R.C.
"No person whose license or registration or nonresident's operating privilege has been suspended or revoked * * * shall, during such suspension or revocation, drive any motor vehicle upon any highway. * * *"
Thus, when a resident's license or a nonresident's operating privilege has been suspended or revoked, the person so affected is not permitted to operate any motor vehicle upon the streets of Ohio during the period of such suspension or revocation, thereby equally protecting the public in either instance.3
We note that the privilege of driving a motor vehicle upon the streets of Ohio is subject to suspension by the Registrar of Motor Vehicles ("registrar"). See R.C.
On the basis of the foregoing, this court's holding in State v.Mendez (1976), 3 O.O. 3d 352, is overruled. In the case subjudice, the judgment of the Maumee Municipal Court is herein modified to read:
"Defendant-appellant's privilege to operate a motor vehicle upon the streets and highways within the state of Ohio is suspended for thirty days. The clerk of the Maumee Municipal Court is hereby instructed, pursuant to R.C.
Judgment of the Maumee Municipal Court, as herein modified, is affirmed. Cause remanded to said court for execution of judgment as herein modified and assessment of costs. Costs to appellee.
Judgment affirmed as modified and cause remanded.
CONNORS, P.J., and HANDWORK, J., concur.
"No person who is under the influence of alcohol * * * shall operate any vehicle, * * * within this state."