State v. Raitz, Unpublished Decision (8-13-2004) , 2004 Ohio 4274 ( 2004 )

{¶ 13} I respectfully dissent. The majority fails to address appellee's argument with respect to former R.C. 4507.16(I), which I find persuasive. Both R.C. 2903.06 (B)(3) and R.C.2903.08(B)(2) mandate an operator's license suspension, "* * * pursuant to section 4506.16 of the Revised Code * * *."

{¶ 14} Former R.C. 4507.16(A)(2) provides that, "* * * 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 the driver's license * * * of any person who is convicted of or pleads guilty to a violation of [R.C. 2903.06 or 2903.08.] The suspension shall be for the period of time specified in [R.C.2903.06 or 2903.08.]"

{¶ 15} The majority properly states that a criminal sentence may not be modified absent statutory authority. Applying standard rules of statutory construction, however, former R.C. 4507.16(I) provides such authority. The statute provided, "No judge shall suspend the first thirty days of suspension of a driver's license or permit or a nonresident operating privilege required under division (A) of this section * * *." A suspension imposed for a violation of R.C. 2903.06 or 2903.08 comes through former R.C.4507.16(A)(2) and is, therefore, "required under division (A)."

{¶ 16} Statutes defining offenses or penalties are to be strictly construed against the state and liberally construed in favor of the accused. R.C. 2901.04(A). Moreover, courts are directed to avoid statutory construction which result in an unreasonable or absurd result. State ex rel. Webb v. Bliss,99 Ohio St.3d 166, 2003-Ohio-3049, paragraph 22.

{¶ 17} It would be nonsensical to prohibit a court from suspending a suspension for the first 30 days of the suspension period if the court had no authority to grant such a suspension at all. Such an interpretation would violate the rule of statutory construction: expressio unis est exclusio alterius, the mention of one excludes the other.

{¶ 18} Work driving privileges constitute a partial suspension of a driver's license suspension. Under former R.C.4507.16(I), reasonably read, except for the first 30 days of the license suspension, the court has authority to suspend the suspension. Accordingly, I would affirm the judgment of the trial court.Heard

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4, amended 1/1/98.

Knepper, J., Lanzinger, J., Concur.

Arlene Singer, J. dissents.