Opinion
No. 92-TRD-5942.
Decided February 12, 1993.
Page C. Schrock III, for the state.
Robert Hanwell, for defendant.
The defendant, Richard Bostwick, is charged with violating R.C. 4507.02(B)(1). The state alleges that the defendant did knowingly allow Wayne Allen to operate a motor vehicle owned by the defendant while the defendant was under an FRA suspension.
R.C. 4507.02(B)(1) prohibits a person whose license has been suspended pursuant to R.C. Chapter 4509 from knowingly allowing such operation unless such operation is specifically authorized by R.C. Chapter 4509.
R.C. 4509.101(A)(1) prohibits the operation of a motor vehicle in the state unless proof of financial responsibility is maintained with respect to such vehicle or, in the case of a driver that is not the owner, with respect to his operation of such vehicle.
This court finds that if Wayne Allen was covered by an insurance policy while he was operating the defendant's vehicle, then the defendant would not be guilty of violating R.C. 4507.02(B)(1).
The court's reasoning in reaching the above holding is that criminal statutes are to be liberally construed in favor of the accused and strictly construed against the state. R.C. 2901.04. Therefore, the exception contained in R.C. 4509.101 which allows the operation of a motor vehicle by another as long as that person can show proof of financial responsibility should also apply in a prosecution under R.C. 4507.02(B)(1).
The next issue to be decided is whether the phrase "except as specifically authorized by Chapter 4509. of the Revised Code" sets forth an affirmative defense. If it does, then the defendant would have the burden of showing that such authorization existed. Such authorization would have to be shown by a preponderance of the evidence. R.C. 2901.05.
R.C. 4507.02(B)(1) does not designate the establishing of such authorization as an affirmative defense. Nor does this court find that it is "peculiarly within the knowledge" (R.C. 2901.05[C][2]) of the accused whether Wayne Allen has insurance. Such information can be obtained by either party by talking or attempting to talk with Wayne Allen. Both parties have an equal right to issue process to compel him to come to court to testify. Therefore, the court finds that the establishing of such authorization is not an affirmative defense.
The court also finds that the state has to show that the defendant knowingly permitted Wayne Allen to operate defendant's motor vehicle and that such permission was made knowing that R.C. Chapter 4509 did not authorize such operation. The court further finds that the definition of "knowingly" in R.C. 2901.22(B) applies in this case.
This court is not aware of any reported or unreported decisions that deal with this particular issue. In reaching the above conclusion, this court found it helpful to analogize this case to one of a defendant knowingly permitting an unlicensed minor to operate a motor vehicle. In such a case, it has been held that the state has to show that the defendant knew or should have known that such a minor did not have a valid operator's license. State v. Puthoff (1985), 18 Ohio Misc.2d 12, 18 OBR 412, 482 N.E.2d 384.
In this case, the court believes that the state should have to show that the defendant knew or should have known that the operation of his motor vehicle by Wayne Allen was not authorized by R.C. Chapter 4509.
As a result, the elements of the crime that the state has charged the defendant with committing are as follows:
(1) That on or about the date alleged in the complaint, the defendant did knowingly permit Wayne Allen to operate his motor vehicle; and
(2) At the time of such operation, the defendant knew or should have known that Wayne Allen's operation of defendant's motor vehicle was not authorized by R.C. Chapter 4509.
The trial in this case shall be conducted in accordance with the findings made above.
So ordered.