State v. White , 29 Ohio St. 3d 39 ( 1987 )

Moyer, C.J.

The sole issue raised by this appeal is whether R.C. 4507.16(A) authorizes a trial court, in its discretion, to permanently revoke a person’s operator’s license. We hold that it does.

R.C. 4507.16(A) provides:

“The trial judge of any court of record, in addition to or independent of all other penalties provided by law or by ordinance, shall suspend for not less than thirty days nor more than three years or revoke the operator’s or chauffeur’s license or permit or nonresident driving privileges of any person who is convicted of or pleads guilty to any of the following:

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“(2) Any crime punishable as a felony under the motor vehicle laws of this state or any other felony in the commission of which a motor vehicle is used * * (Emphasis added.)

We note first that the General Assembly’s use of both “suspend” and “revoke” implies that these terms are not synonymous. A review of other sections in R.C. Chapter 4507 reveals these terms are not used interchangeably. Pioneer v. Martin (1984), 16 Ohio App. 3d 478, at 481, 16 OBR 561, at 563-564, 476 N.E. 2d 1098, at 1100-1101. Neither “suspend” nor “revoke” is defined in the Revised Code. Thus, these terms should be afforded their common, everyday meaning. See Eastman v. State (1936), 131 Ohio St. 1, 5 O.O. 248, 1 N.E. 2d 140, paragraph five of the syllabus; State v. Dorso (1983), 4 Ohio St. 3d 60, at 62, 4 OBR 150, at 151-152, 446 N.E. 2d 449, at 451. The term “suspend” ordinarily contemplates the temporary taking away of something. “Revocation,” however, is a permanent taking without the expectation of reinstatement.

Furthermore, R.C. 4507.16(A) provides that a license suspension is explicitly limited to a minimum term of thirty days up to a maximum term of three years. No such limiting phrase, however, follows the conjunctive phrase “or revoke.” It is thus apparent that the General Assembly left to the discretion of the trial judge the length of time for a license suspension under R.C. 4507.16(A) within certain parameters and further granted the trial court judge the discretion to revoke the license.

This conclusion is buttressed by a consideration of the policy manifest in the entire statute. Obviously, the General Assembly sought to prevent certain persons who unlawfully drive their vehicles from continuing to enjoy the privilege of driving. The length of the deprivation of the privilege is dependent on the severity of the offense. R.C. 4507.16(C) mandates permanent revocation for those persons convicted of aggravated vehicular homicide or vehicular homicide. State v. Smith (1984), 16 Ohio App. 3d 114, 16 OBR 121, 474 N.E. 2d 685. It would be anomalous to require permanent revocation of operator’s licenses for these two offenses, but to leave no authority to permanently revoke an operator’s license where a defendant is convicted of involuntary manslaughter and is the type of lethal drunk driver from whom the General Assembly seeks to withhold driving privileges.

White contends that the distinction between suspension and revocation is that the duration of a suspension is set by the judge, whereas the duration of a revocation is one year as defined in R.C. 4507.08, which provides in part:

“No temporary instruction permit or operator’s or chauffeur’s license shall be issued to any person whose license, whether as operator or chauffeur, has been suspended, during the period for which the license was suspended, nor to any person whose license, whether as operator or chauffeur, has been revoked, under sections 4507.01 to 4507.39 of the Revised Code, until the expiration of one year after the license was revoked. ” (Emphasis added.)

White’s contention is without merit. While there are circumstances under which a person may apply for a new license following revocation, thus implying all revocations may not be permanent, it is clear from other sections of R.C. Chapter 4507 that a revocation may last for more than one year.¹

White also maintains that, because R.C. 4507.16(C) is the only section specifically requiring the court to impose a permanent revocation, under the doctrine of expressio unius est exclusio alterius other provisions of R.C. 4507.16 are mutually exclusive of such penalty. We disagree, as this argument ignores the discretion granted to the trial judge under R.C. 4507.16(A). The mandatory penalty in the case of a conviction for vehicular homicide under R.C. 4507.16(C) does not preclude a similar discretionary penalty under R.C. 4507.16(A).

White contends that, if R.C. 4507.16(A) permits a trial court to revoke an operator’s license for any period, such a discretionary provision violates due process of law under both the Ohio and the United States Constitutions. This contention ignores the meaning of the term “revoke” as previously discussed. Furthermore, R.C. 4507.16(A) is merely an additional sanction which a trial court, in its discretion, may invoke. See Columbus v. Tyson (1983), 19 Ohio App. 3d 224, 19 OBR 374, 484 N.E. 2d 155. Moreover, it is clear that the defendant was afforded notice of the crimes charged by the indictment and was given a full opportunity to be heard at the plea proceedings. Imposition of the lifetime revocation under R.C. 4507.16(A)(2) in this instance does not violate due process.

Finally, White essentially maintains that the trial court was required to make a specific finding that the offender was under the influence of alcohol before imposing revocation. However, White pleaded no contest herein to both counts of the indictment, thereby admitting the facts alleged in the indictment. An election to have sentence passed under either the aggravated vehicular homicide charge or the involuntary manslaughter charge would allow the permanent revocation given the facts alleged in the indictment. We need not reach the question raised by White in view of these circumstances.

Accordingly, we find the trial court properly imposed a permanent revocation of White’s operator’s license, and the judgment of the court of appeals is reversed.

Judgment reversed.

Locher, Holmes, Douglas and H. Brown, JJ., concur. Sweeney and Wright, JJ., dissent.

1 For example, R.C. 4507.163 provides the following:

“(C) No application for a motorized bicycle license or probationary motorized bicycle license shall be received from any person whose probationary motorized bicycle license has been revoked under this section until the person reaches sixteen years of age.”

According to R.C. 4507.01, one can obtain a probationary motorized bicycle license at age fourteen, so that a revocation under R.C. 4507.163 can last more than one year. In addition, White’s contention ignores the common, everyday meaning of the term “revoke.”