City of Ironton v. Murnahan, 1829

• Decision Date: 29 October 1987
• Docket Number: No. 1829,1829
• Citation: 539 N.E.2d 649,43 Ohio App.3d 91
• Parties: CITY OF IRONTON, Appellee, v. MURNAHAN, Appellant.
• Court: Ohio Court of Appeals

Page 91

43 Ohio App.3d 91

539 N.E.2d 649

CITY OF IRONTON, Appellee, v. MURNAHAN, Appellant.

No. 1829.

Court of Appeals of Ohio, Fourth District, Lawrence County.

Oct. 29, 1987.

Syllabus by the Court

1. R.C. 4507.35, failure to display a driver's license upon demand, states an offense, which, if violated, is punishable pursuant to R.C. 4507.99(B).

2. The random stopping of a motor vehicle in the unbridled discretion of a police officer is constitutionally proscribed. (Delaware v. Prouse [1979], 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660, applied and followed.)

Charles Cooper, Ironton, for appellee.

Sam B. Weiner, Columbus, for appellant.

STEPHENSON, Judge.

This is an appeal from a judgment of conviction and a sentence of a fine of $100 and costs, with $75 of the fine suspended, imposed by the Ironton Municipal Court upon Mark Alan Murnahan, appellant herein, after a bench trial in which appellant was found guilty of violating Section 335.06 of the Codified Ordinances of the city of Ironton, which proscribes failure to display a driver's license upon demand. The following errors are assigned.

Assignment of Error One

"(A) When the testimony at trial reveals that an arresting officer lacked legal justification for demanding the driver's license of the accused, the trial court as a matter of law must order dismissal of the charge of failure to display said driver's license.

"(B) The arrest of [the] accused for failure to display his driver's license upon an improper demand was an unreasonable seizure contra the Fourth and Fourteenth Amendments to the U.S. Constitution, and Art. I, Sec. 14 of the Ohio Constitution, and all evidence subsequent to that arrest must be suppressed.

"(C) The verdict is against the manifest weight of the evidence."

Assignment of Error Two

"Where the facts of the case show that the accused was charged with the wrong offense pursuant to a holding of the Ohio Supreme Court, the trial court is without jurisdiction to order a finding of guilt and sentence; and the conviction must be reversed and dismissed."

The record reflects the following. On August 2, 1986, appellant was operating a motor vehicle on an Ironton city street. Shortly after midnight his vehicle was stopped in a traffic check by an Ironton police officer wherein automobiles were being stopped purportedly to determine if the occupants were in violation of a curfew, to conduct a safety check of the vehicle, and to issue warning tickets if the wearing-of-seat-belt requirement was being violated.

When appellant was requested to display his license, he refused and locked his license in the glove compartment. He was then arrested and charged with the offense for which he was convicted. Neither appellant nor the prosecution was represented by counsel at trial, the officer advising the court he wished to proceed in the absence of the prosecution. The second assignment of error will be initially considered.

In substance, appellant argues that under the ordinance, which is identical to R.C. 4507.35, a person refusing to display his license can only be charged with operating a vehicle without a valid driver's license. We disagree.

R.C. 4507.35 reads as follows:

"The operator or chauffeur of a motor vehicle shall display his license, or furnish satisfactory proof that he has such license, upon demand of any peace officer or of any person damaged or injured in any collision in which such licensee may be involved. When a demand is properly made and the operator or chauffeur has his license on or about his person, he shall not refuse to display said license. Failure to furnish satisfactory evidence that such person is licensed under sections 4507.01 to 4507.30, inclusive, of the Revised Code, when such person does not have his license on or about his person shall be prima-facie evidence of his not having obtained such license."

A predecessor of this statute was adopted in 116 Ohio Laws, Part II, 33, 38, and read as follows in G.C. 6296.14(b):

"The operator or chauffeur of a motor vehicle shall display his license or furnish satisfactory proof that he has such license upon demand of any peace officer or of any person damaged or injured in any collision in which such licensee may be involved. Failure to produce such license on demand, or to furnish satisfactory evidence that such person is duly licensed under this act, shall be prima facie evidence of his not having obtained such license."

In State v. Farren (1942), 140 Ohio St. 473, 24 O.O. 493, 45 N.E.2d 413, the court held in the syllabus as follows:

"1. Under the provisions of Section 6296-14(b), General Code, the failure of the operator of a motor vehicle to produce his driver's license or to furnish satisfactory evidence thereof upon the demand of a peace officer does not constitute a misdemeanor.

"2. This section specifically provides that such failure on the part of the driver shall constitute a 'prima facie evidence of his not having obtained such license.' "

In short, the court reasoned that if a separate violation was intended for failure to produce a driver's license on demand, the General Assembly should have so provided.

In response to Farren, the General Assembly amended G.C. 6296-14(b), in 120 Ohio Laws 289, 293, to read as follows:

"The operator or chauffeur of a motor vehicle shall display his license or furnish satisfactory proof that he has such license upon demand of any peace officer or of any person damaged or injured in any collision in which such licensee may be involved. [DELETED: * * *] [ADDED: When a demand is properly made and the operator or chauffeur has his license on or about his person and refuses to display it, he shall be guilty of a misdemeanor and upon conviction shall be punished as provided in section 6296-30. Failure to furnish satisfactory evidence that such person is duly licensed under this act when such person does not have his license on or about his person shall be prima facie evidence of his not having obtained such license.]" (Ellipsis indicates deletion of former language and italics indicates language added by the amendment.)

Appellant would concede the above, but argues that when R.C. 4705.35 was enacted it omitted the language "he shall be guilty of a misdemeanor" so that State v. Farren, supra, is again controlling. The flaw in that argument is that the present R.C. 4507.35 was enacted in Am. H.B. No. 1, effective October 1, 1953 (125 Ohio Laws 7), wherein the Revised Code was enacted to replace the General Code. The General Assembly in adopting the Revised Code specifically stated in R.C. 1.24 (now repealed) that it did "not" intend to change the law as heretofore expressed by the section or sections of the General Code. See State v. Kotapish (1960), 171 Ohio St. 349, 352, 14 O.O.2d 77, 79, 171 N.E.2d 505, 507. See, also, R.C. 1.30.

Accordingly, a failure to display a...