COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 74234 ACCELERATED DOCKET CITY OF MAPLE HEIGHTS : : JOURNAL ENTRY Plaintiff-appellee : : AND vs. : : OPINION JOSEPH GABARIK : : PER CURIAM Defendant-appellant : : : DATE OF ANNOUNCEMENT : SEPTEMBER 24, 1998 OF DECISION : : CHARACTER OF PROCEEDINGS : Criminal appeal from : GARFIELD HEIGHTS MUNICIPAL : COURT : Case No. 98 TRD 00508ABC : JUDGMENT : REVERSED DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: MICHAEL G. CIARAVINO, ESQ. Maple Heights Prosecutor 5005 Rockside Road Crown Centre - Suite 600 Independence, OH 44131-2155 For defendant-appellant: DAVID L. McARTOR, ESQ. L. RAY JONES, ESQ. Jones & McArtor P.O. Box 592 Medina, OH 44258 PER CURIAM: This case came to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.R. 25, the record from the Garfield -2- Heights Municipal Court, the briefs and App.R. 9(C) statement of evidence. Defendant-appellant Joseph Gabarik appeals the decision of the trial court imposing a one year license suspension upon him when there is no evidence his driving was reckless as defined by R.C. 4507.34. The record reveals defendant was driving his car north bound without a front license plate at 2:30 a.m. on January 4, 1998. As he approached an intersection, defendant made a right turn on a red light, although there was a sign prohibiting a right turn on a red light. A friend of defendant's was driving in another car directly behind defendant and she also made the right turn. A police officer was monitoring the intersection at the time and saw defendant and friend make the right turn. The officer activated his overhead lights and pulled over defendant and his friend. When the officer observed defendant, he noticed defendant was not wearing a seat belt. The officer issued tickets to defendant for failing to wear a safety belt, failing to display a front license plate, and going through a red light. Defendant pleaded not guilty at his arraignment and the case proceeded to trial. At trial, defendant represented himself pro se and plaintiff-appellee City of Maple Heights was represented by a city prosecutor. The trial court heard testimony from defendant, defendant's friend, and the arresting officer. After all the testimony was heard, the trial court found defendant guilty of all three charges and imposed fines totaling $217.00 in addition to suspending his operator's license for one year. -3- Defendant timely filed his notice of appeal and now presents a single assignment of error which states as follows: THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A ONE (1) YEAR LICENSE SUSPENSION UPON THE APPELLANT, AS APPELLANT'S OPERATION IN NO WAY RELATED TO RECKLESS OPERATION AS REQUIRED IN OHIO REVISED CODE 4507.34. Defendant argues the evidence does not support the trial court's finding that he drove recklessly. In support of this proposition, he cites Columbus v. Munson (1991), 68 Ohio App.3d 850 where the court held in order to support a finding of recklessness, there must be evidence that the defendant's driving constituted a clear safety hazard to fellow drivers. Defendant contends the evidence shows he was the first of two cars to make an illegal right turn on red. He claims there is no evidence that he was speeding or that he collided with the trailing car or almost collided with the trailing car. Lastly, defendant argues there were no known risks or probable dangers associated with his illegal right turn on red. Plaintiff-appellee City of Maple Heights counter-argues R.C. 4507.34 empowers a court to suspend a driver's license for up to one year for violating a law or ordinance related to reckless operation of a vehicle. The city maintains defendant violated ordinance 436.99, which prohibits making a right turn on red, thus he committed an offense relating to reckless operation. In support, the city cites Columbus v. Tyson (1983), 19 Ohio App.3d 224, where Tyson ran a red light and was involved in a motor vehicle collision. The court held the ordinance prohibiting -4- running a red light is an ordinance `relating to reckless operation' since it was presumably created to discourage the reckless operation of motor vehicles. Lastly, the city claims the trial court's decision to suspend defendant's license was not an abuse of its discretion because the suspension is supported by the evidence. Defendant made a prohibited right turn on red, early in the morning when the roads were slick. He was driving excessively fast and with his friend immediately behind him he could have easily lost control of his vehicle and, spun around and struck her vehicle. R.C. 4507.34 provides: Whenever a person is found guilty under the laws of this state or any ordinance of any political subdivision thereof, of operating a motor vehicle in violation of such laws or ordinances, relating to reckless operation, the trial court of any court of record may, in addition to or independent of all other penalties provided by law, suspend for any period of time or revoke the driver's license of any person so convicted or pleading guilty to such offenses for such period as it determines, not to exceed one year. In Tyson, supra, the court stated R.C. 4507.34 gives the trial court discretion to suspend the licence of a defendant who violates a statute or ordinance relating to reckless operation. Id.at 225. Although the statute does not forbid specific conduct, it gives the trial court discretion to impose a penalty. See State v. Parker (1973), 46 Ohio App.2d 189. Therefore, we must determine whether the trial court abused its discretion by suspending defendant's driver's license for a year for reckless operation based on defendant making an illegal -5- right turn on red without wearing a seatbelt during inclement weather with a friend tailing behind in another car. A review of the case law indicates the majority of courts have found reckless operation where the operation of a motor vehicle reflects a blatant disregard for the rights and safety of others or the driving constituted a clear safety hazard to * * * fellow drivers. City of Columbus v. Munson, supra, at 853. In State v. Pessefall (1993), 87 Ohio App.3d 222, Pessefall was charged with driving seventy miles per hour in a 55 zone. It was also discovered that Pessefall had seven speeding violations in the past year. The trial court suspended Pessefall's license for one year based on reckless operation per R.C. 4507.34. The reviewing court reversed the suspension finding there was no clear safety hazard to other users of the highway where the violation occurred in the daytime with no alcohol involved and extremely light traffic. See, also State v. Hartman (1987), 41 Ohio App.3d 142 (one year license suspension reversed where court held exceeding the speed limit by ten miles and testing under the legal limit for DUI purposes did not constitute a clear safety hazard to others) and City of Garfield Heights (September 22, 1994), Cuyahoga App. No. 65916, unreported (reversed a one year suspension for reckless operation where the suspension was based solely on a speeding violation). However, in State v. Foureman (1990), 68 Ohio App.3d 162, court upheld Foureman's one year license suspension where he was arrested for weaving from lane to lane during heavy traffic and the arresting officer detected a strong odor of -6- alcohol. Similarly, in State v. Kirkpatrick (June 22, 1987), Preble App. No. CA87-02-003, the court determined there was a blatant disregard for the safety of others where Kirkpatrick drove left of the center line and tested over the legal limit when tested for his blood alcohol content. The cases where courts upheld the one year license suspensions based on reckless operation involved more than violating a minor traffic law. The drivers in these cases either created an actual hazard for other drivers or were found to have consumed alcohol or a combination of the two. In the present case, defendant simply made an illegal right turn on red. There is no evidence defendant was speeding or that alcohol was involved. Likewise, we do not find that defendant's friend driving close behind defendant created a hazard. The standard by which we review the discretionary suspension of defendant's license is the abuse of discretion standard. Munson, supra. Based on the foregoing we are persuaded the trial court abused its discretion in suspending defendant's license for one year without evidence of reckless operation. Accordingly, defendant's first assignment of error is sustained. Judgment reversed. -7- This cause is reversed and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellant recover of said appellee his costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. TERRENCE O'DONNELL PRESIDING JUDGE JOHN T. PATTON, JUDGE KENNETH A. ROCCO, JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .