DocketNumber: No. 95-C-21.
Citation Numbers: 685 N.E.2d 308, 115 Ohio App. 3d 319
Judges: COX, Judge.
Filed Date: 11/15/1996
Status: Precedential
Modified Date: 1/13/2023
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 321
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 322
The within appeal arises from the March 28, 1995 conviction and sentencing of Ronald T. Campbell, Sr. (appellant), following a jury trial, for violations of R.C.
Appellant filed a notice of appeal on April 3, 1995. In a journal entry dated May 5, 1995, this court, sua sponte,
dismissed, as the order appealed was found to be not final as defined by R.C.
Appellant was arrested on December 6, 1994, and charged by an Ohio State Highway Patrol officer with violations of R.C.
Appellant appeared for arraignment and submitted a plea of not guilty on December 9, 1994. On January 17, 1995, appellant filed a motion to suppress the BAC result and a motion to dismiss based on constitutional grounds. In a judgment entry dated February 8, 1995, the trial court sustained the motion to *Page 323
suppress. The decision on the motion to dismiss was rendered on March 28, 1995, just prior to the scheduled jury trial. The trial court overruled the motion. However, the trial court did find R.C.
"The final branch of [appellant's] challenge concerns the different statutory treatment accorded a person who refuses the chemical test as opposed to the person who takes but fails the test, when both ar [sic] later convicted by way of a plea to O.M.V.I. Under the current statutory scheme, the A.L.S. imposed int he [sic] first instance automatically terminates (R.C. Sec.
"Once both persons are convicted of O.M.V.I., they become `similarly situated' and must be treated alike unless distinguishing them bears a rational relationship to a legitimate governmental interest. Menefee v. Queen City Metro
(1990),
"In this limited context, wherein the legislation precludes the termination of the A.L.S. when the driver who takes the test is later convicted upon a plea to the underlying O.M.V.I., this Court finds the same to violate the Equal Protection Clause of the
A jury trial was conducted on March 28, 1995. The jury returned a verdict of guilty to the charge of violating R.C.
It must first be noted that the trial court's equal protection interpretation of R.C.
Appellant's sole assignment of error states:
"The trial court erred as a matter of law to the prejudice of the defendant when it overruled the defendant's motion to dismiss the charge of violation of *Page 324
O.R.C. Section
Appellant sets forth numerous contentions why R.C.
This court must note at the outset that a party challenging a legislative enactment has the burden of demonstrating its unconstitutionality. Hudson v. Albrecht, Inc. (1984),
Appellant cites Weems v. United States (1910),
Appellant notes that a violation of R.C.
"`Reviewing courts * * * should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes * * *.'" State v. Frambach (1992),
Returning to the facts before this court, it is highly doubtful that the punishment imposed for a violation of R.C.
Appellant's next contention is that R.C.
Appellant points out that R.C.
It must be noted that as a threshold matter, people in appellant's position are not "similarly situated" to felons, and hence, appellant's equal protection argument is flawed. As this court is not permitted to make appellant's argument for him, his equal protection contention must fail.
Appellant then reverts to an
Appellant argues that the driver's license forfeiture under R.C.
The
"Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."
Section
The party alleging that a statute is unconstitutional must prove this assertion beyond a reasonable doubt in order to prevail. Hilton v. Toledo (1980),
Appellant's next contention is that R.C.
A state is justified in punishing recidivists more severely than it punishes first-time offenders. Incidentally, appellant is only a first-time offender, and, therefore, his contention is rendered moot in this appeal.
Appellant's last argument concerning penalties is that R.C.
Section
Next, appellant directs this court's attention to the administrative license suspension ("ALS") under R.C.
To overturn a state law because its effects are discriminatory, the challenger must first demonstrate an intent to discriminate by the state. See Crawford v. Los Angeles Bd. ofEdn. (1982),
Appellant's next argument is that a driver's license is a substantial right, which cannot be taken away without due process and, thus, the ALS is unconstitutional.
A driver's license does confer a limited property interest on its owner, and a person may not be deprived of it without the procedural due process mandated by the
The United States Supreme Court and Ohio Supreme Court both use the test expressed in Mathews v. Eldridge (1976),
"First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of that interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail." Eldridge, at 335,
In Mackey, supra, the United States Supreme Court encountered a Massachusetts statute that required a ninety-day suspension for any driver who refused a breath analysis test upon arrest for operating a motor vehicle while under the influence of an intoxicating liquor. The Mackey court found the driver's interest in the continued possession and use of a driver's license pending the outcome of a hearing to be a substantial interest. However, the Mackey court reasoned that *Page 328 the ALS did not violate the Due Process Clause since a postsuspension hearing was available immediately upon a driver's suspension and could easily be initiated by the driver, the risk of erroneous observation or deliberate misrepresentation of the facts by a police officer was insubstantial, and because the state's interest in removing drunken drivers from the road was substantially served by the summary suspension.
The Ohio Supreme Court addressed the issue of a license suspension pursuant to R.C.
"We emphasize that an operator's license in the state of Ohio is a privilege and is not a property right." Id. at 52,
More particularly, the Supreme Court of the United States has found the driver's interest to be the continued possession of a driver's license pending the outcome of a hearing, and that interest to be a substantial one. In Mackey, supra,
"* * * The driver's interest is in the continued possession and use of his license pending the outcome of the hearing due him. As we recognized in Love, that interest is a substantial one, for the commonwealth will not be able to make a driver whole for any personal inconvenience and economic hardship suffered by reason of any delay in redressing an erroneous suspension through postsuspension review procedures * * *."Mackey,
Therefore, under the first part of the Eldridge test, we must conclude that the private interest that will be affected by the official action is substantial.
The second part of the Eldridge test requires a consideration of the likelihood of an erroneous deprivation. For a police officer to suspend an individual's driver's license, certain basic steps must be followed. First, the officer must havereasonable and articulable suspicion that a motorist is operating a vehicle in violation of the law to make an initial traffic stop. Hamilton v. Lawson (1994),
We must agree with the Mackey court that the risk of an erroneous observation or deliberate misrepresentation by a police officer is insubstantial. In addition, a suspension may be appealed at the initial appearance on the charge, which must be held within five days. This safeguard limits the duration of any potentially wrongful deprivation of the driver's property interest, the duration being an important factor in evaluating the impact of the state action on the private interest involved.Fusari v. Steinberg (1975),
The final element of the Eldridge test concerns the government's interests. The Mackey court found the government to have a compelling interest in keeping people who are driving while under the influence of alcohol off the roads. The Mackey court stated:
"States surely have at least as much interest in removing drunken drivers from their highways as in summarily seizing mislabeled drugs or destroying spoiled food stuffs." Id.,
Consistent with Mackey, we find that the state's interest in removing drunken drivers from the road is substantially served by the summary suspension.
Appellant's due process argument is without merit.
Appellant next contends that the ALS violates the Due Process Clause by not advising the person under arrest of all of the consequences of submitting to or refusing to take the breath test. After a driver has been arrested on suspicion of DUI, the arresting officer need not inform the driver of each and every possible consequence of refusing to submit to a breath test or for registering over the legal limit on a breath test.Sgambellone v. Ohio Bur. of Motor Vehicles (1993),
Appellant then argues that because it is unclear whether the initial appearance for an appeal of a suspension under R.C.
Appellant does not fully develop his argument and neglects to cite any case law to support his contention. Furthermore, the procedure to be followed by the courts and the process of appeal are sufficiently laid out in the statute so as not to violate the Due Process Clause. Appellant's argument is without merit.
Appellant cites Section
"The supreme court shall prescribe rules governing practice and procedure in all courts of the state, which rules shall not abridge, enlarge, or modify any substantive right. * * * All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect."
Appellant then notes that R.C.
"The sworn report of an arresting officer completed and sent to the registrar and the court under divisions (D)(1)(c) and (D)(2) of this section is prima facie proof of the information and statements that it contains and shall be admitted and considered as prima facie proof of the information and statements that it contains in any appeal under division (H) of this section relative to any suspension of a person's driver's or commercial driver's license or permit or nonresident operating privilege that results from the arrest covered by the report."
Appellant contends:
"O.R.C.
Appellant also points out that this practice switches the burden of proof to the accused on whether the suspension was justified. Appellant then goes on to claim that the statute is unconstitutional as it attempts to expand the Ohio Supreme Court's Rules of Evidence, citing In re Coy (1993),
Evid.R. 802 provides:
"Hearsay is not admissible except as otherwise provided by the Constitution of the United States, by the Constitution of the State of Ohio, by statute enacted by the General Assembly not in conflict with a rule of the Supreme Court of Ohio, by these rules, or by other rules prescribed by the Supreme Court of Ohio."
Evid.R. 803(8) excludes the following from the rule of inadmissibility:
"Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (a) the activities of the office or agency, or (b) *Page 331 matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, unless offered by defendant, unless the sources of information or other circumstances indicate lack of trustworthiness."
The sanctions imposed pursuant to R.C.
Appellant's next assertion is that R.C.
If a person's driver's license is suspended under R.C.
Appellant's separation of powers argument is without merit.
In his final contention, appellant reiterates his due process argument as to the immediate forfeiture and seizure of a driver's license by the arresting officer. As this issue was previously addressed, we need not consider it again.
In conclusion, the trial court's ruling on R.C.
Judgment affirmed.
JOSEPH E. O'NEILL, P.J., and GENE DONOFRIO, J., concur. *Page 332
State v. Antill , 91 Ohio App. 3d 589 ( 1993 )
State v. Frambach , 81 Ohio App. 3d 834 ( 1992 )
In Re Bailey , 64 Ohio App. 3d 291 ( 1989 )
City of Hamilton v. Lawson , 94 Ohio App. 3d 462 ( 1994 )
Weems v. United States , 30 S. Ct. 544 ( 1910 )
MacKey v. Montrym , 99 S. Ct. 2612 ( 1979 )
Fusari v. Steinberg , 95 S. Ct. 533 ( 1975 )
Mathews v. Eldridge , 96 S. Ct. 893 ( 1976 )
Crawford v. Board of Ed. of Los Angeles , 102 S. Ct. 3211 ( 1982 )
Bell v. Burson , 91 S. Ct. 1586 ( 1971 )
Dixon v. Love , 97 S. Ct. 1723 ( 1977 )
Austin v. United States , 113 S. Ct. 2801 ( 1993 )