478 N.E.2d 1098 | Ohio Ct. App. | 1984
This cause is before the court on an appeal from the judgment of the Bryan Municipal Court. Appellant, Todd A. Martin, was convicted of *479
violating a municipal ordinance of the village of Pioneer, i.e.,
Section
For our review, appellant asserts the following two assignments of error:
"1. The court erred in overruling appellant's motion to suppress the intoxilyzer results and allowing said results to be introduced into evidence because the intoxilyzer had not been calibrated properly according to the rules and regulations of the Ohio Department of Health.
"2. The court erred in suspending appellant's driver's license because under the Ohio Revised Code there is no authority for a court to suspend a driver's license for a violation of a city `DWI' ordinance."
Appellant, under his first assignment of error, argues that the trial court erred in admitting as evidence the results of his intoxilyzer test since appellee failed to prove that the intoxilyzer machine had been calibrated according to the rules and regulations of the Ohio Department of Health. It is difficult to determine from appellant's argument set forth under his first assignment of error whether he is contesting the proper calibration of the intoxilyzer machine prior to or subsequent to the test given him. For purposes of our decision, however, it makes very little difference.
This court, in Bryan v. Hunter (May 18, 1984), Williams App. No. WMS-84-2, unreported, held the following:
"Quite obviously, the purpose of proper calibration is to ensure accurate test results. Thus, the purpose of the seven-day calibration requirement is that pre-test calibrations occur, as to a particular test, within seven days of the test. In this case, appellant would have us exclude his intoxilyzer test result on the ground that the next calibration after his test occurred more than seven days after the one preceding his test. This argument is without merit." (Emphasis sic.)
Our holding in Hunter, supra, clearly states that as long as the proper pretest calibration of the intoxilyzer machine occurs, the test result is admissible as evidence. Thus, the question regarding a subsequent calibration, in light of our holding inHunter, is no longer an issue. Likewise, a proper calibration within seven days of a particular test is sufficient and renders that test in compliance with rules and regulations of the Ohio Department of Health. Appellant's first assignment of error is not well-taken.
Appellant argues under his second assignment of error that the legislature, by its passage of R.C.
The relevant portion of 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, of a violation of section
"(2) If the offender has been convicted, within five years of the offense, of a violation of section
"(3) If the offender has been convicted, within five years of the offense, of more than one violation of section
Appellant vigorously contends that the language of this statute does not permit a trial judge to suspend the license of a person who is convicted under a municipal ordinance of operating a motor vehicle while influenced by alcohol. Appellant relies on the following language:
"(B) Except as otherwise provided in this section, the trialjudge of any court of record, * * * shall revoke the operator's ** * license * * * of any person who is convicted of or pleadsguilty to a violation of section
Immediately noticeable, however, is that the language upon which appellant relies addresses only revocation of a license. The suspension of a license is governed by the statutory phrase immediately following that part of R.C.
"* * * or suspend the license * * * as follows:
"(1) If the offender has not been convicted, within five years of the offense, of a violation of section
"(2) If the offender has been convicted, within five years of the offense, of a violation of section
"(3) If the offender has been convicted, within five years of the offense, of more than one violation of section
The record plainly reveals the trial court suspended, rather than revoked, appellant's license for a violation of a municipal ordinance relating to the operation of a motor vehicle while under the influence of alcohol. Quite clearly, *481
the trial judge possessed the authority to levy such a suspension by virtue of R.C.
The legislature, in drafting R.C.
In view of the distinction between "revoke" and "suspend" contemplated by the legislature, we hold that a trial judge is possessed with authority by virtue of R.C.
The judgment of the Bryan Municipal Court is, hereby, affirmed. The cause is remanded to said court for execution of sentence and assessment of costs.
Judgment affirmed.
CONNORS, P.J., and HANDWORK, J., concur.