dissenting
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 interventionprogram. 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 or ordinances, 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 time or revoke the driver's license or commercial driver's license of any person so convicted or pleading guilty to such offenses for 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 seat belt fastened, or his failure to drive entirely within the marked lanes of travel. Such violations are codified in R.C. 4511.33 and R.C. 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:
"(A) A vehicle or trackless trolley shall be driven, as nearly as is practicable, entirely within a single lane or line of traffic and shall not be moved from such lane or line until the driver has first ascertained that such movement can be made with safety. "* * (Emphasis added.)
The penalties for violation of sections R.C. 4511.33 and R.C. 4513.263 are minor misdemeanors for a first offense. Nevertheless the trial court determined that appellant, by failing to wear a seat belt, 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 disapproved 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 utilized R.C. 4507.34 in order to determine that the driver's violations "related" to reckless operation, simply to impose a suspension to drive for one year.
We affirmed similar procedure by the same trial judge in State v. Kirkpatrick (June 22, 1987), Preble App. No. CA87-02-003, unreported. On November 16, 1987, we reversed the same trial judge on similar facts, in State v. Hartman (1987), 41 Ohio App. 3d 142. 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 *545suggested herein, that evidence of any minor traffic violation in combination with consumption of a marginal quantity of alcohol, ipso facto, means an operator's driving is reckless." (Emphasis added.) Hartment, supra, at 143, fn. 3.
R. C. 4507.34, at 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 munici pal 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 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 offenses 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 offenses. 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 of such offense, even though such serious charge is voluntarily dismissed by the state