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State v. Yackley6/14/1989
H. BROWN, J.
The sole question is whether under R.C. 2953.31 et seq., prior to the 1984 amendment, a conviction for violating R.C. 4511.19 barred the expungement of the record of a conviction of another criminal offense. We answer this query affirmatively and affirm the decision of the court of appeals.
Prior to the 1984 amendment, R.C. 2953.31 et seq. provided for expungement of a defendant's record of conviction upon a finding (among other things) that the applicant was a first offender. 135 Ohio Laws, Part I, 70. R.C. 2953.31 defined a "first offender" for purposes of R.C. 2953.31 to 2953.36 as "* * * anyone who has once been convicted of an offense in this state or any other jurisdiction. * * *" This provision was amended in 1984 to read in part:
"(A) `First offender' means anyone who has been convicted of an offense in this state or any other jurisdiction, and who has not been previously or subsequently convicted of the same or a different offense in this state or any other jurisdiction. * * *
"For purposes of, and except asotherwise provided in, this division, * * * a conviction for a violation of any section in Chapter 4511., 4513., or 4549. of the Revised Code, * * * is not a previous or subsequent conviction. A conviction for a violation of section * * * 4511.19 * * * shall be considered a previous or subsequent conviction." 140 Ohio Laws, Part I, 2382, 2383.
Yackley's argument is based upon the premise that the legislature, by inclusion of drunk driving convictions (i.e., violations of R.C. 4511.19) in the category of offenses which are considered to be previous or subsequent convictions, implicitly recognized that drunk driving convictions were not "offenses" as that term was used in the former version of the statute. Yackley contends that the term "offense" encompassed "criminal" offenses only. Drunk driving, he argues, is a traffic offense rather than a criminal offense because it is found in that part of the Revised Code pertaining to operation of motor vehicles (R.C. Title 45), rather than in the part pertaining to crimes (R.C. Title 29). Although his application for expungement was filed after R.C. 2953.31 was amended, Yackley argues that the amendment cannot be applied retrospectively in determining whether his pre-1984 drunk driving conviction is an "offense."
We need not reach the issue of retroactive application. Yackley is not entitled to expungement under either the earlier or the later statutory language. A conviction for drunk driving is a criminal offense. It requires proof beyond a reasonable doubt. The defendant has the right to a jury trial. A conviction carries a potential sentence of incarceration and a substantial fine. It is, therefore, an "offense" within the ordinary meaning of the word as used in the expungement statute prior to that statute's amendment. Before the 1984 amendment, R.C. 2953.31 defined a "first offender" as anyone who had not been convicted of any offense, which must be construed to include traffic violations and drunk driving .
In Chillicothe v. Herron (1982), 3 Ohio App.3d 468, 3 OBR 549, 445 N.E. 2d 1171, the court discussed the meaning of the term "offense" as used in former R.C. 2953.31. The court held that a conviction of sexual imposition could not be expunged since the applicant had subsequently been convicted of speeding in violation of R.C. 4511.21. The court observed that the term "offense," though not defined in the expungement statute, was defined in R.C. 2935.01(D). That definition included "felonies, misdemeanors, and violations of ordinances of municipal corporations and other public bodies authorized by law to adopt penal reg
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