The judge of the Eaton Municipal Court has once again utilized R.C. 4507.34 to impose a harsh sentence upon a person charged, but never convicted, of DUI.
The record indicates that appellant might well have been guilty of DUI, contrary to R.C. 4511.19(A)(1), in that he refused to perform coordination tests at the request of the arresting officer, and refused a breathalyzer test. It is indeed probable that he would have been convicted of DUI based upon the testimony of the state trooper who observed him and recognized his condition. Prior to any finding of guilt as to driving while intoxicated, the court required appellant to appear at a "detox" center for a weekend intervention program. Thereafter, when the DUI charge was dismissed, the court suspended appellant's right to drive for one year, pursuant to R.C. 4507.34, which reads, in part, as follows:
"Whenever a person is found guilty under the laws of this state or any ordinance of any political subdivision thereof,of operating a motor vehicle in violation of such laws orordinances, relating to reckless operation, the trial court of any court of record may, in addition to or independent of all other penalties provided by law, suspend for any period of timeor revoke the driver's license or commercial driver's license of any person so convicted or pleading guilty to such offensesfor such period as it determines, not to exceed one year." (Emphasis added.)
Once the DUI charge was dismissed, the basis of the one-year suspension could only have been appellant's failure to have his seatbelt fastened, or his failure to drive entirely within the marked lanes of travel. Such violations are codified in R.C.4511.33 and 4513.263. R.C. 4511.33 reads, in pertinent part, as follows:
"Whenever any roadway has been divided into two or more clearly marked lanes for traffic, or wherever within municipal corporations traffic is lawfully moving in two or more substantially continuous lines in the same direction, the following rules apply: *Page 169
"(A) A vehicle or trackless trolley shall be driven, asnearly as is practicable, entirely within a single lane or line of traffic and shall not be moved from such lane or line untilthe driver has first ascertained that such movement can be madewith safety." (Emphasis added.)
Violations of R.C. 4511.33 and 4513.263 are minor misdemeanors for a first offense. Nevertheless, the trial court determined that appellant, by failing to wear a seatbelt, or by crossing the center line (absent any proof that such movement could not be made with safety) was guilty of an offense "relating to reckless operation" in violation of R.C. 4507.34.
It is readily apparent that the trial court is invoking seldom-used R.C. 4507.34 in order to punish one charged with DUI, even though there is no conviction. I totally disapprove of such procedure. Such is a novel way for the prosecutor and the judge to assure that a defendant suspected of driving while under the influence of alcohol is punished, while avoiding the time and trouble involved in a trial. The court thereby denies a defendant due process. If a driver is charged with DUI, he should be tried for the offense — absent a plea bargain to a lesser offense such as reckless operation. If the DUI charge is dismissed, however, the court should not utilize R.C. 4507.34 in order to determine that the driver's violations "related" to reckless operation, simply to impose a driving suspension for one year.
We affirmed similar procedure by the same trial judge inState v. Kirkpatrick (June 22, 1987), Preble App. No. CA87-02-003, unreported, 1987 WL 13060. On November 16, 1987, we reversed the same trial judge on similar facts, in State v.Hartman (1987), 41 Ohio App.3d 142, 534 N.E.2d 933. In Hartman,supra, we distinguished Kirkpatrick, supra, without overruling such case, as follows:
"We affirm our position in Kirkpatrick, supra, that a court of record, in deciding whether to suspend a driver's license pursuant to R.C. 4507.34, is entitled to consider all the evidence the record reveals which is probative of whether a defendant's operation of a motor vehicle was reckless, including his state of sobriety. We however reject the notion, which we find to be suggested herein, that evidence of any minor trafficviolation in combination with the consumption of a marginalquantity of alcohol, ipso facto, means an operator's driving is reckless." (Emphasis added.) Hartman, supra, at 143,534 N.E.2d at 935, fn. 3.
R.C. 4507.34, a law virtually unknown to the bench and bar, grants a trial court virtually unbridled discretion to determine that anyone found guilty of violating any state law or municipal ordinance, while operating a motor vehicle, may have thereby committed an offense "relating to reckless operation." The court can then, in its discretion, in addition to or independent of all *Page 170 other penalties provided by law, "suspend * * * or revoke the driver's license * * * for such period as it determines, not to exceed one year."
I pity the poor unfortunate who commits a minor traffic offense within the jurisdiction of Eaton Municipal Court. He just might be suspended for a year. Quite clearly, R.C. 4507.34 is anomalous. Punishment should fit the crime, but only that crime for which a driver is convicted.
In the case at bar, appellant was charged with DUI, and he should have been tried for such offense. If convicted, he should have been appropriately punished. It is totally improper, however, for such an individual to simply be charged with the offense of DUI, and be punished as if found guilty, even though such serious charge is voluntarily dismissed by the state.