State v. Goff-Smith

• Decision Date: 08 April 1992
• Docket Number: No. 92-D-1821,GOFF-SMITH,92-D-1821
• Citation: 598 N.E.2d 937,62 Ohio Misc.2d 370
• Parties: The STATE of Ohio v.
• Court: Ohio Court of Common Pleas

Page 370

62 Ohio Misc.2d 370

598 N.E.2d 937

The STATE of Ohio v. GOFF-SMITH.

No. 92-D-1821.

Montgomery County Court of Ohio.

Decided April 8, 1992.

Gregory Spears, Asst. Pros. Atty., for the state.

James Swaim, Dayton, for the defendant.

JEFFREY E. FROELICH, Judge.

The defendant, Christina M. Goff-Smith, is charged with violating R.C. 4507.35, failure to display operator's license. The defendant has moved for dismissal based on State v. Green (1984), 13 Ohio Misc.2d 14, 13 OBR 301, 462 N.E.2d 466.

R.C. 4507.35 provides as follows:

"The operator of a motor vehicle shall display his license, or furnish satisfactory proof that he has such license, upon demand of any peace officer or any person damaged or injured in any collision in which such licensee may be involved. When a demand is properly made and the operator 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 * * *, 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."

The prosecution argues that the appropriate precedent is Ironton v. Murnahan (1987), 43 Ohio App.3d 91, 539 N.E.2d 649. The prosecution argues that reliance on Green is misplaced since Green stands only for the proposition that the failure to display an operator's license when that license is not on or about the person is not a criminal violation, but that in the case sub judice, the defendant did have her license on or about her person, but failed to display it.

The prosecution is correct that Ironton deals with a case where the individual had his license on or about his person and Green, by specific holding, does not deal with a situation where an individual fails to display a license when such license is on or about his person. Therefore, given the facts before the court, the question is whether R.C. 4507.35 creates solely a prima facie violation of R.C. 4507.02 (no operator's license) or also establishes a criminal prohibition.

R.C. 2901.03(A) provides that:

"No conduct constitutes a criminal offense against the state unless it is defined as an offense in the Revised Code."

R.C. 2901.03(B) goes on to provide that:

"An offense is defined when one or more sections of the Revised Code state a positive prohibition or enjoin a specific duty, and provide a penalty for violation of such prohibition or failure to meet such duty."

R.C. 4507.35 states a positive prohibition or enjoins a specific duty ("[w]hen a demand is properly made and the operator has his license on or about his person, he shall not refuse to display said license"). Further, R.C. 4507.99(C) provides that "whoever violates any provision of sections * * * 4507.01 to 4507.37 of the Revised Code is guilty of a misdemeanor of the first degree." Therefore, it is clear that R.C. 4507.35 states a positive prohibition (a driver shall not refuse to display said license) and provides a penalty for violation of such prohibition (a misdemeanor of the first degree). Therefore, R.C. 4507.35 states an offense where the defendant has her license on her person, but refuses to display it.

The legislature has made this issue more...