Opinion
Nos. 90CRB33354-A, 90CRB33354-B and 90CRB33354-C.
Decided November 30, 1990.
Arthur M. Ney, Jr., prosecuting attorney, and Timothy A. Garry, Jr., assistant prosecuting attorney, for plaintiff.
James N. Perry, for defendant.
The defendant, John R. Gentry, has filed a motion for an order dismissing all criminal charges because the Hamilton County Municipal Court lacks jurisdiction over the subject matter. This issue has been raised as a challenge to prosecutions for watercraft violations on the Ohio River as defined in R.C. Chapter 1547. The basic facts for deciding the issues in this motion are not in dispute.
I
On September 3, 1990, the defendant, John R. Gentry, was operating his watercraft without a proper stern light on the Ohio River just east of the "Big Mac" Bridge opposite the shores of Cincinnati, Ohio. Law enforcement officers from the Ohio Department of Natural Resources, Division of Watercraft, stopped the vessel and identified the defendant as the operator. The officers boarded the vessel and conducted a safety inspection resulting in alleged safety violations. While still on the Ohio River, it appeared that the defendant had an odor of an alcoholic beverage and it also appeared that he failed five out of six clues of the eye gaze nystagmus test. At this point, the officers advised the defendant that more field tests for alcohol consumption would be performed on shore. The defendant was taken to the Cincinnati riverfront and escorted to a concrete shoreline; psychomotor tests were given and observed by the officers. The defendant was then placed under arrest for operating a vessel while under the influence of alcohol pursuant to R.C. 1547.11. Subsequently, while in Cincinnati, Ohio, the defendant was administered a breath test which determined his blood-alcohol level. The eventual citations for the alleged offenses directed the defendant to appear to answer all charges in the Hamilton County Municipal Court.
II
It is important to recognize that the Supreme Court of the United States, in Ohio v. Kentucky (1985), 471 U.S. 153, 105 S.Ct. 2011, 85 L.Ed.2d 119, stated that the state of Ohio and the Commonwealth of Kentucky each have concurrent jurisdiction on and over the Ohio River. Of course, this court can take judicial notice of the fact that the waters of the Ohio River do surface on the land of Hamilton County, Ohio. Also, it is clear that Hamilton County itself is a subdivision of the state of Ohio.
The defense argues that the Hamilton County Municipal Court does not have concurrent jurisdiction with the courts of the Commonwealth of Kentucky (even though the state of Ohio does have jurisdiction) since Hamilton County does not have statutory authority in this matter. The state argues that since the Ohio River touches the boundaries of Hamilton County, jurisdiction is then vested specifically under R.C. 1901.20(A).
III
First of all, it is important to note that "waters in this state" (R.C. 1547.11[A]) means "all * * * rivers * * * which are situated wholly or partially within this state or within its jurisdiction, and are used for recreational boating." R.C. 1547.01(B)(9). In addition, "in operation" means that a watercraft "is being navigated or otherwise used on the waters in this state." R.C. 1547.01(B)(11).
Now it is important to review the language of R.C. 2901.12, venue, which reads in part:
"(A) The trial of a criminal case in this state shall be held in a court having jurisdiction of the subject matter, and in the territory of which the offense or any element of the offense was committed.
"(B) When the offense or any element of the offense was committed in an aircraft; motor vehicle, train, watercraft, or other vehicle, in transit, and it cannot reasonably be determined in which jurisdiction the offense was committed, the offender may be tried in any jurisdiction through which the aircraft, motor vehicle, train, watercraft, or other vehicle passed." (Emphasis added.)
It is established that Ohio has jurisdiction to prosecute criminal cases (watercraft or otherwise) on the Ohio River; also the Ohio River passes by and surfaces on the boundaries of Hamilton County, Ohio.
Basically, the importance of venue is to give the defendant the right to be tried in the vicinity of his alleged criminal activity; the need to have venue is to limit the state from indiscriminately seeking a favorable location for trial or selecting a site that might be an inconvenience or disadvantage for the defendant. See State v. Loucks (1971), 28 Ohio App.2d 77, 82, 57 O.O.2d 160, 163, 274 N.E.2d 773, 776-777. This right of venue is a personal privilege that may be waived by the defendant, but "[v]enue is neither a jurisdictional issue nor a material element of a criminal offense. * * *" State v. McCartney (1988), 55 Ohio App.3d 170, 563 N.E.2d 350.
The defendant has entered his plea of not guilty in this case, and has filed the motion to dismiss on jurisdictional grounds. Any challenge to the factual issue of venue is waived.
IV
The Ohio River is the southern boundary of the municipal corporation of Cincinnati, Hamilton County, Ohio. There is no implied or expressed authority to the contrary.
"* * * `Jurisdiction' which was given the states possessing the `shore' of the Ohio [R]iver, is nothing more than the right to prescribe and enforce the rules of conduct to be observed on the waters of that river. * * *" (Emphasis added.) Dickow v. Cincinnati (C.P. 1920), 31 Ohio Dec. 266, 273-274, 23 Ohio N.P.(N.S.) 1, 9.
This leads us to the ultimate conclusion that "[n]o person can be convicted of a crime except in the county where the offense was committed," and "a crime committed on the Ohio [R]iver is punishable in the county bordering upon the river opposite the place where the act was committed. * * *" (Emphasis added.) State v. Savors (1911), 15 Ohio C.C.(N.S.) 65, 69, 23 Ohio C.D. 224, 228. Logically, then, the "jurisdictional limits of the county extend over the river to enforce the laws on the river, just the same as on the land. * * *" (Emphasis added.) Id.
Nowhere can this court find authority that the legislature intended to make the Ohio River jurisdictionally excludable from a just forum for prosecuting the enacted legislative laws of R.C. Chapter 1547. In this case, the search was made on the defendant's boat opposite the shores of Hamilton County; the arrest was made on the shores of Hamilton County; the breath test was made in Hamilton County; and this court sits in Hamilton County, Ohio. This is a just forum for jurisdiction.
See R.C. 1547.521(C).
See R.C. 1547.51 and 1547.521(D) and (E).
Even in a dissent, but on other grounds, Judge Metcalfe stated, in State v. Savors, supra, that "* * * [n]either do I question that the jurisdiction of every county in the state bordering on the Ohio [R]iver extends to crimes and offenses committed on the river, so that if a crime is committed upon the Ohio [R]iver within the lines of a county extended across the river, the jurisdiction of that county extends to that crime. * * *" (Emphasis added.) Id. at 70, 23 Ohio C.D. at 229.
V
Additionally, this court is persuaded by the Committee Comment to R.C. 2901.11, criminal law jurisdiction, stating logical insights describing legislative intent:
"This section is designed to allow the state the broadest possible jurisdiction over crimes and persons committing crimes in or affecting this state, consistent with constitutional limitations. In addition, the section eliminates some paradoxes and legal fictions arising out of the common law doctrine that the location of a crime fixes jurisdiction and that the location depends on where the `gist' of the offense occurs. Also, the section provides a new rule determining criminal law jurisdiction over disputed territory."
This court agrees that the legislature expected that enforcement of its watercraft laws be implemented by the courts already existing and bordering the Ohio River; no new courts were established. This court is not willing to invade the wisdom of the legislature by requiring that body to reaffirm what it has already intended.
Therefore, this court is not per se denied jurisdictional authority as the forum for hearing cases involving crimes committed on the Ohio River opposite the shores of Hamilton County, Ohio.
Unless and until the legislature expressly states otherwise, this court is persuaded by the common-law decisions and statutes that permit jurisdictional authority to be vested with the respective bordering courts along the Ohio River.
To rule otherwise would frustrate the rights, welfare and safety of innocent citizens properly using the waterways.
The defendant's motion to dismiss is denied.
Reporter's Note: The defendant entered a negotiated plea on January 16, 1991 and there was no appeal.