Opinion
No. 30005
Decided October 10, 1967.
Motor vehicles — Suspension of driver's license — Violation of Section 4511.21, Revised Code — An offense relating to reckless operation, Section 4507.34, Revised Code.
1. Violation of the prima facie speed statute, to wit: Section 4511.21, Revised Code, is not, as a matter of law, an offense relating to reckless operation. Each individual case presents a question of fact for the trial court.
2. Individuals charged with violation of Section 4511.21, Revised Code, are entitled to know before trial whether the charge includes the violation of a statute related to "reckless operation."
3. Where the only evidence produced on trial showed that a motorist was traveling 90 m. p. h. in a 70 m. p. h. zone on a divided super highway, and that nine automobiles were passed over a distance of approximately 4 1/4 miles, the Municipal Court was without power to impose, as a part of the sentence for a violation of Section 4511.21, Revised Code, a suspension of the motorist's driver's license.
Mr. Michael R. McKinley, Ashland city law director, for appellee.
Messrs. Lutz Oxley and Mr. Howard S. Lutz, for appellant.
In the Ashland Municipal Court the defendant pled guilty to a charge that on May 3, 1967, at 9:45 a. m. he operated his 1967 Ford automobile at a speed of 90 miles per hour in a 70 mile zone, which was "unreasonable for conditions" in violation of Section 4511.21, Revised Code. The sentence imposed by the court was a fine and costs and suspension of defendant's license for 90 days. The defendant has appealed from that portion of the judgment and sentence suspending his license for 90 days.
The record discloses that the affidavit was on a form prescribed by the Ohio State Highway Patrol, and that said form had spaces for checking numerous types of violations of statutes, and a place for insertion of the section number of the Revised Code which the officer claimed had been violated. Among the places to check appeared a space for a check mark opposite this language: "Endangering persons or property (described below)." Blank lines were provided for insertion of statements as to the manner in which persons or property were endangered. There was no check mark opposite the language "endangering persons or property," indicating that there was no claim on behalf of the patrolman making the arrest that any persons or property were endangered by the operation of defendant's automobile. The only place checked in the section provided for outline of the nature of the violation was: "Speed unreasonable for conditions (90 m. p. h. in 70 m. p. h. zone)."
The only other information in the record as to the manner of defendant's driving is the reading of the patrolman's statement following the plea of guilty, which was:
"If it please the Court, your Honor, this is Patrolman Johnson's statement. It states the violation occurred on the 3rd day of May at approximately 9:45 a. m.; that the defendant was observed south bound on Interstate 71 at State Route 539 in Wayne County driving at what appeared to be a high rate of speed. Pursuit was given and the defendant was clocked at 90 and above from County Road 138 to the Richland County line. During this time he passed nine other vehicles and was alone in the car. Signed by Patrolman Johnson."
The essence of the state's position is that upon a plea of guilty to any violation of Section 4511.21, Revised Code, at any speed in excess of the prima facie lawful speed, the court has authority to suspend the defendant's driver's license by virtue of the provisions of Section 4507.34, Revised Code. This contention is based on the state's interpretation of the decision of the Supreme Court in the case of Akron v. Willingham, 166 Ohio St. 337, 142 N.E.2d 653, 2 O. O. 2d 248, this being a per curiam opinion without syllabus. It is the recognized rule of the Supreme Court that the syllabus states the law of Ohio only with reference to the facts upon which it is predicated and must be read in view of the facts found in such case. B. O. Railroad Company v. Baillie, 112 Ohio St. 567, 148 N.E. 233. It is true that a per curiam opinion is entitled to the same weight as the syllabi, but here, also, it must be read in the light of the facts in the particular case decided.
In the case of Akron v. Willingham, supra, the court quoted Section 4511.20, Revised Code, titled "Reckless Operation of Vehicles," which reads now as it did at the time of the decision:
"No person shall operate a vehicle, trackless trolley or street car without due regard for the safety and rights of pedestrians and drivers and occupants of all other vehicles, trackless trolleys, and street cars, so as to endanger the life, limb, or property of any person while in the lawful use of the streets and highways."
While the opinion stated that a law or ordinance prohibiting speeding is a prohibition "relating to reckless operation" of a motor vehicle within the meaning of Section 4507.34, Revised Code, and authorizes suspension of a driver's license, that pronouncement must be read in conjunction with the facts found by the court to justify the suspension in that particular case. These facts are stated at pages 338 and 339 of the opinion:
"This court is of the opinion that defendant's plea of guilty to a charge of unlawfully operating a motor vehicle `at the rate of 60 miles per hour in a 25 mile zone, such speed being greater than was reasonable and proper, having due regard to the traffic, surface and width of said street, and other conditions then existing, in violation of Section 79, Chapter No. 24, Code of the City of Akron,' is an admission that he was driving without `due regard' for the rights of others."
It is apparent in construing Akron v. Willingham, supra, that the suspension of license would not have been affirmed unless there was evidence in the record, and in that case, in the affidavit itself that the defendant was actually guilty of reckless driving. It is not difficult to determine from those facts, as a matter of law, that driving 35 miles faster than a very low speed limit, in what had to be a congested city area for a 25 mile limit, that lives and property of others at a 60 mile speed must necessarily have been endangered and the defendant was, therefore, guilty of reckless driving.
In the case at bar the charge is 20 miles over a 70 mile speed limit on a four lane divided super highway, in the daylight season, with apparently good road conditions, with light traffic since only nine cars were passed by the defendant in a diagonal traverse of Ashland County from the Wayne to the Richland County line, with no evidence whatsoever of any bad or reckless driving endangering any of that traffic. Considering these facts, the court cannot find as a matter of law that the defendant drove
"Without due regard for the safety and rights of pedestrians and drivers and occupants of all other vehicles, trackless trolleys and street cars, so as to endanger the life, limb, or property of any person while in the lawful use of the streets and highways."
The record is devoid of any evidence to show that the life, limb or property of any individual was endangered or that anyone's safety or rights were interfered with by the defendant and it is significant that the charge against the defendant did not make either of those claims, but merely stated that the speed was unreasonable for the conditions.
Section 4511.21, Revised Code, establishes prima facie limits and the courts have held that speed alone does not constitute reckless drving. City of Toledo v. Soldier, 101 Ohio App. 273, 139 N.E.2d 664, 1 O. O. 2d 260. The Fifth District Court of Appeals in the case of State v. Donald B. Mansfield, case No. 456, which case came out of the Ashland Municipal Court, held that a speed of 20 miles per hour over the prima facie limit of 50 miles per hour in the night time in conditions of little traffic upon a divided highway is not in and of itself a violation of Section 4511.21, Revised Code. There are, therefore, circumstances in which speed in excess of the prima facie limit is a matter of judgment, and a factual rather than a legal determination is necessary to determine violation. The court in its opinion stated:
"* * * The matter of a violation of this section is a question of fact in each individual case."
Can it be said now that a speed of 71 miles per hour in a 70 mile zone is reckless driving? Can it be said that a speed of 26 miles per hour in a 25 mile zone is reckless driving? If one pursued the state's contention to its logical conclusion, a plea of guilty to any one of such charges empowers the court to suspend a driver's license under Section 4507.34, Revised Code. This would permit suspension upon the whim of the court for any moving violation in Chapter 4511, Revised Code, without a legal yardstick for the application of fair and even handed justice. This court cannot interpret the language of the opinion of the Supreme Court in Akron v. Willingham, supra, to have intended such an absurd application of the statute.
The court is also impressed with the fact that there was no allegation in the affidavit charging the crime of violation of Section 4511.21, Revised Code, that it was a statute "relating to reckless operation in violation of Section 4507.34, Revised Code." The defendant had no means of being alerted by the statements in the affidavit charging the crime that a penalty statute other than Section 4511.99, Revised Code, might be invoked by the court. Irrespective of the absence of any statutory requirement relative to a misdemeanor that the accused be apprised of the nature of the punishment before entering a plea, in the absence of the advice of counsel which is evident in the present case, the accused had a constitutional right to be fully informed of the nature of the offense before making a judicial confession by way of a guilty plea. He could not know the nature of that offense unless he was informed that he was charged with the violation of a statute which "related to reckless operation in violation of Section 4507.34, Revised Code." He was not so informed. Consequently, his rights under Article I, Section 10 of the Ohio Constitution and the Sixth Amendment to the United States Constitution, along with his right to due process of law, were violated.
Our Supreme Court in the case of State v. Myers, 56 Ohio St. 340, 47 N.E. 138, stated:
"A statute defining a crime or offense cannot be extended, by construction, to persons or things not within its descriptive terms, although they appear to be within the reason and spirit of the statute."
It is said by Buchwalter, J. in Groenland v. State of Ohio, 6 Ohio Decisions 313, 4 Ohio Nisi Prius 122 (Affirmed in State v. Groenland, 57 Ohio St. 653, 50 N.E. 1134):
"1. The information or indictment charging a person with commission of a crime must state the charge of the crime with certainty and precision, and set out the facts which constitute the same, so as to advise the accused what he may expect to meet on the trial. This is a constitutional right and cannot be dispensed with by legislative authority."
The state argues that the punishment or penalty is not a part of the offense; however, under Section 4507.34, Revised Code, no penalty can be imposed unless that statute is violated. No violation of that statute can be proved unless one is alleged. In the present case not only is no such violation alleged, but by the presence on the traffic ticket, prescribed by the Ohio State Highway Patrol, of the charge to check in the event of such a violation, which charge remained unchecked ( i. e. "endangering persons or property described below") an intent by the patrolman to charge a violation of Section 4507.34 or 4511.20, Revised Code, is negatived and the accused is misled into believing the sole applicable statutes are Sections 4511.21 and 4511.99, Revised Code.
If the state is to claim that people are drivers so unsafe as to require the suspension of the driving privilege, it is only fair to require that such claims do not remain a secret until after a plea of guilty has been entered to what appears to be an ordinary traffic ticket penalized only by a fine. Our society today wants and demands safety in driving. Our society today also wants and demands that a charge of reckless operation be fairly and openly made so that it is plainly understood by the accused in order that he can make his defense accordingly and prevent the economic impact of a possible license suspension.
Under the circumstances in this case as shown by a complete reading of the record, it is the conclusion of this court that based upon the evidence in this case, the trial judge was without power to impose, as a part of the sentence, the suspension of the defendant's driver's license and such judgment is reversed. Under the circumstances in this case as shown by the record, it is the opinion of this court that the record fails to show that defendant was guilty of reckless operation as a matter of law, and that there was no specific charge of the violation of Section 4507.34, Revised Code, and that there was, therefore, no basis for finding a violation of that section on the evidence.
The judgment of the Ashland Municipal Court, with regard to the suspension of the defendant's driver's license, is reversed, and defendant's driver's license is ordered restored and his bond released.
Judgment accordingly.