Opinion
No. 79-1236
Decided April 23, 1980.
Motor vehicles — Driving under license suspension — Conviction unlawful, when — R.C. 4507.40(K), construed.
A suspension of a driver's license for six months pursuant to R.C. 4507.40(K) terminates by operation of law upon expiration of that six-month period.
APPEAL from the Court of Appeals for Hamilton County.
Appellee, Michael Roberts, was convicted of driving under suspension based upon a finding that he drove a vehicle on a public street on June 4, 1978. Approximately 13 months earlier, appellee's driver's license had been suspended for six months for reason that appellee had accumulated a total of 12 points for traffic violations. R.C. 4507.40(K). After the expiration of this six-month period, appellee did not seek the return of his driving privileges from the Registrar by passing a driver's examination and by demonstrating financial responsibility. R.C. 4507.41.
On appeal, the Court of Appeals reversed the judgment of conviction, ruling that appellee could not be convicted of driving under a suspended license because "he was no longer under suspension in June of 1978, regardless of the fact that he had not taken the steps required to regain possession of his license."
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Mr. Thomas A. Luebbers, city solicitor, Mr. Paul J. Gorman and Mr. Dennis S. Helmick, for appellant.
Mr. Joseph C. Merling and Ms. Kathleen C. King, for appellee.
Appellee's conviction for driving under a suspended license is lawful only if his suspension continued after the expiration of the explicit six-month suspension period described in R.C. 4507.40(K). The Court of Appeals reversed appellee's conviction for reason that his suspension had earlier terminated by operation of law, i.e., when the above six-month period expired. The state herein argues that the Court of Appeals should have sustained the conviction because such suspensions do not terminate by operation of law but continue unless and until the Registrar returns driving privileges pursuant to R.C. 4507.41.
R.C. 4507.40(K), in part, provides:
"When, upon determination of the registrar, any person has charged against him a total of not less than twelve points within a period of two years *** the registrar shall notify the person *** that his driver's license shall be suspended for six-months * * *."
R.C. 4507.41 provides:
"Any person whose license or permit is suspended, or who is put on probation or granted limited or occupational driving, under section 4507.40 of the Revised Code, is not eligible to retain his license, or to have his license returned, until he has been examined in the manner provided for in section 4507.20 of the Revised Code, and has been found by the registrar to be qualified to operate a motor vehicle, and until such time that he gives and maintains proof of financial responsibility, in accordance with section 4509.45 of the Revised Code."
The state's argument is without merit. R.C. 4507.40(N), in part, provides:
" Upon termination of*** [ a driver's] suspension *** and upon request of [that driver]***, the registrar shall return the license***upon determining that all provisions of section 4507.41 of the Revised Code have been met." (Emphasis added.)
Based on the above provision, appellee could not seek the return of his driving privileges pursuant to R.C. 4507.41 until his six-month suspension had terminated. As such, appellee's compliance with R.C. 4507.41 is not the event which would terminate his suspension. Therefore, the Court of Appeals properly reversed the conviction for reason that, prior to the alleged infraction, appellee's license suspension had terminated by operation of law, upon expiration of the six-month period described in R.C. 4507.40(K).
While appellee cannot be convicted of driving under a suspension, numerous statutory sanctions are available which appear applicable to appellee's conduct. The application of such statutes is of course not before us.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., HERBERT, P. BROWN, SWEENEY and HOFSTETTER, JJ., concur.
HOLMES, J., dissents.
HOFSTETTER, J., of the Eleventh Appellate District, sitting for LOCHER, J.