         [Cite as State v. Lamke, 2013-Ohio-925.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO                                       :   APPEAL NO. C-110725
                                                        TRIAL NOS. C-11TRC-33401A
        Plaintiff-Appellant,                        :              C-11TRC-33401B
                                                                   C-11TRC-33401C
  vs.                                               :
                                                           O P I N I O N.
JONATHAN L. LAMKE,                                  :

    Defendant-Appellee.                             :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed in Part and Cause Remanded

Date of Judgment Entry on Appeal: March 15, 2013


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellant,

Brafford & Phillips and Suellen M. Brafford, for Defendant-Appellee.




Please note: this case has been removed from the accelerated calendar.
                      OHIO FIRST DISTRICT COURT OF APPEALS




C UNNINGHAM , Judge.


       {¶1}         The state of Ohio appeals from the judgment of the Hamilton

County Municipal Court granting Jonathan Lamke’s motion, pursuant to R.C.

4511.195(D), for the court to order the release of his motorcycle and to charge

Hamilton County a portion of the fees incurred for its storage. A Hamilton County

sheriff’s deputy seized the motorcycle upon Lamke’s second arrest for the offense of

operating a vehicle while under the influence of drugs or alcohol (“OVI”) within six

years, but Lamke was subsequently acquitted of that offense.

       {¶2}         Because in granting Lamke’s motion the trial court erroneously

relied upon subdivision (D)(4) of R.C. 4511.195, which mandates the ordering of the

fees against the county, instead of subdivision (D)(2) of R.C. 4511.195, which, when

read in pari materia with (F)(1), gives the court the discretion to charge the county

those fees, we vacate the trial court’s order imposing the fees, and we remand the

case for the trial court to apply the correct standard in evaluating Lamke’s motion.

                                I. Background Facts

       {¶3}         On July 2, 2011, Lamke was arrested in Hamilton County for OVI,

in violation of R.C. 4511.19(A)(2)(b), after he was involved in an accident while

operating his motorcycle. Lamke was transported to the hospital because of injuries.

A patrol officer from the Hamilton County Sheriff’s office seized the motorcycle and

authorized Nick’s Towing to remove the motorcycle from the scene of the accident

and store it.   The motorcycle remained at Nick’s impound lot during Lamke’s

criminal proceedings for the OVI offense and the two additional offenses with which

he had been charged: refusing to submit to a chemical test, in violation of R.C.

4511.19(A)(2)(b), and failing to maintain reasonable control of a vehicle, in violation

of R.C. 4511.202.




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       {¶4}       Lamke did not challenge the propriety of his arrest in a pretrial

motion, but he did move for release of his motorcycle on July 18, 2011. The trial

court denied his motion at that time. Subsequently, on October 2, 2011, the court

granted the motion for the release of the motorcycle, but conditioned the release

upon Lamke’s payment of the fees for the impoundment of the motorcycle. Lamke

did not pay the fees and his motorcycle was not released.

       {¶5}       After a bench trial, the court acquitted Lamke on all counts,

including the OVI violation. The court also set aside Lamke’s administrative license

suspension, which was based on his alleged refusal of a chemical test, with a waiver

of the reinstatement fee. Lamke then moved again for the immediate release of the

motorcycle, and, additionally, requested an order under R.C. 4511.195(D)(2) and (4)

directing Hamilton County to pay Nick’s Towing for all fees related to the

impoundment of the vehicle, including the removal and the storage fees.

       {¶6}       At the hearing on his motion, Lamke agreed to pay the entire

removal fee and the storage fee through July 4, 2011, but he maintained that the

county was responsible for the storage fees incurred after July 5, 2011, and until the

release of his motorcycle.    The trial court granted Lamke’s motion, citing R.C.

4511.195(D)(4).

                             II. The Assignment of Error

       {¶7}       In one assignment of error, the state argues that the trial court

erred by ordering Hamilton County to pay fees incurred for the storage of Lamke’s

motorcycle because the impoundment of the motorcycle was “authorized.”

According to the state, the trial court misinterpreted R.C. 4511.195(D)(2) and (4)

when it issued its order imposing the financial obligation on the county.

Alternatively, the state argues that if the court was authorized to order the

government to pay the fees for the impoundment of the motorcycle, then the court




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                     OHIO FIRST DISTRICT COURT OF APPEALS



erred by not specifying which governmental agency within “Hamilton County” was

responsible for those fees.

                              III. Standard of Review

       {¶8}       The state’s arguments involve the interpretation and application of

R.C. 4511.195, issues of law that we review de novo. See State v. Consilio, 114 Ohio

St.3d 295, 2007-Ohio-4163, 871 N.E.2d 1167, ¶ 8; Dikong v. Ohio Supports, Inc., 1st

Dist. No. C-120057, 2013-Ohio-33, ¶ 16.

       {¶9}       A court’s primary purpose in interpreting or construing a statute is

to give effect to the intention of the legislature, “as gathered from the provisions

enacted, by the application of well[-]settled rules of interpretation.” Henry v. Cent.

Nat. Bank, 16 Ohio St.2d 16, 242 N.E.2d 342 (1968), paragraph two of the syllabus.

To that end, we must first review the language the legislature used.          State v.

Edwards, 5th Dist. No. 2012-CA-12, 2012-Ohio-5142, ¶ 16.

                                IV. R.C. 4511.195

       {¶10}      Generally, R.C. 4511.195 requires law enforcement officers to seize

and immobilize the vehicles of persons who have been arrested for a second offense

of OVI until the final disposition of the OVI charge. The statute, which became

effective in 1993, has been amended numerous times, and it has been the subject of

due-process challenges during its history. See State v. Hochhausler, 76 Ohio St.3d

455, 668 N.E.2d 457 (1996); State v. Heinrich, 142 Ohio App.3d 654, 756 N.E.2d 732

(12th Dist.2001); State v. Posey, 135 Ohio App.3d 751, 735 N.E.2d 903 (9th

Dist.1999). The focus of our inquiry now, however, is limited to whether the trial

court misinterpreted or misapplied the statute when it ordered Hamilton County to

pay a portion of the fees for the impoundment of Lamke’s motorcycle.

       {¶11}      The current version of R.C. 4511.195, which was the statute in effect

when Lamke’s motorcycle was seized, provides in division (B) that upon an OVI

arrest, “the arresting officer or another officer of the law enforcement agency that



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                      OHIO FIRST DISTRICT COURT OF APPEALS



employs the arresting officer” shall seize the vehicle operated by the person arrested

for the OVI offense and its license plates if (1) the vehicle is registered to the arrestee,

and (2) the arrestee had been convicted of an OVI offense within the prior six years

or a felony OVI offense, regardless of when the conviction occurred.                   R.C.

4511.195(B)(1). The statute also provides when the seized vehicle should be retained

pretrial. See R.C. 4511.195(B) and (C). If the seized vehicle is not released pretrial,

then R.C. 4511.195(D) applies.

       {¶12}       R.C. 4511.195(D) reads:

               If a vehicle and its license plates are seized under division (B) of

               this section and are not returned or released to the arrested

               person pursuant to division (C) of this section, the vehicle and

               its license plates shall be retained until the final disposition of

               the charge in question.       Upon the final disposition of that

               charge, the court shall do whichever of the following is

               applicable:

               (1) If the arrested person is convicted of or pleads guilty to the

               [OVI offense] * * *, the court shall impose sentence upon the

               person as provided by law or ordinance and shall order the

               immobilization of the vehicle the person was operating at the

               time of the offense * * * and the impoundment of its license

               plates * * * or the criminal forfeiture of the vehicle * * *,

               whichever is applicable.

               (2) If the arrested person is found not guilty of * * * [the OVI

               offense], the court shall order that the vehicle and its license

               plates immediately be released to the arrested person.




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                      OHIO FIRST DISTRICT COURT OF APPEALS



               (3) If the charge * * * is dismissed for any reason, the court

               shall order that the vehicle and its license plates immediately be

               released to the arrested person.

               (4) If the impoundment of the vehicle was not authorized under

               this section, the court shall order that the vehicle and its license

               plates be returned immediately to the arrested person or, if the

               arrested person is not the vehicle owner, to the vehicle owner,

               and shall order that the state or political subdivision of the law

               enforcement agency served by the law enforcement officer who

               seized the vehicle pay all expenses and charges incurred in its

               removal and storage.

       {¶13}       Although subdivision (D)(2) requires the court to order the

immediate release of the vehicle to the arrestee upon an acquittal, it does not

specifically address who is responsible for the expense and charges incurred in the

removal of the vehicle in the event of an acquittal.

                           A. The State’s Interpretation

       {¶14}       The state reads subdivision (D)(4) of R.C. 4511.195 as preventing

the trial court from charging the government the expenses incurred for the

impoundment of the vehicle unless the impoundment of the vehicle was unlawful,

even in the event of an acquittal, as set forth in subdivision (D)(2). According to the

state, the General Assembly could have included language in subdivision (D)(2)

imposing the responsibility for the expenses on the government in the event of an

acquittal, but it chose not to.

       {¶15}       The state then concludes that because Lamke was the registered

owner of the motorcycle, he was properly arrested for OVI, and he had a prior OVI

violation within six years of his arrest, the seizure and impoundment of the




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                     OHIO FIRST DISTRICT COURT OF APPEALS



motorcycle were authorized under division (B). As a result, subdivision (D)(4) does

not apply, and the trial court’s order is contrary to law.

          {¶16}   But the state’s interpretation of subdivision (D)(4) does not take

into consideration that the General Assembly did not use language limiting the trial

court’s imposition of the expenses for the impoundment of the vehicle on the

government—it merely specifies when the court must impose the charges on the

government. As the Fifth Appellate District recently held, subdivision (D)(4) reveals

the General Assembly’s “specific[] inten[t] to prohibit charging the accused impound

fees and costs when impoundment of the vehicle was not authorized by statute.”

State v. Edwards, 5th Dist. No. 2012-CA-12, 2012-Ohio-5142, ¶ 19.

                            B. Lamke’s Interpretation

          {¶17}   Lamke reads subdivision (D)(4) to require the trial court to charge

the government the expenses for the impoundment of the vehicle because he was

eventually acquitted of the OVI offense. In support, Lamke cites this court’s decision

in State v. Schulte, 154 Ohio App.3d 367, 2003-Ohio-3826, 797 N.E.2d 517 (1st

Dist.).

          {¶18}    Schulte involved whether the trial court properly denied the city’s

motion to intervene that had been filed subsequent to the granting of the defendant’s

motion for reimbursement of storage fees, following the seizure of his vehicle under a

prior version of R.C. 4511.195, where the defendant was subsequently acquitted of

the OVI offense. We affirmed the trial court’s denial of the city’s motion, and in dicta

stated that “the impoundment of a vehicle of a person who is subsequently acquitted”

would “arguably” amount to “impoundment without authorization” under the newly-

enacted-but-not-yet-effective subsubdivision (D)(4) of R.C. 4511.195. Id. at ¶ 8.

          {¶19}   This court’s discussion of the current version of R.C. 4511.195 in

Schulte is merely dicta, and our conclusion is equivocal. Upon closer review of the

statute, we are not persuaded by our dicta in Schulte.



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                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶20}       Subdivision (D)(4) mandates that the trial court charge the

government the expenses for the “removal and storage” of the vehicle when the

“impoundment of the vehicle” “was not authorized under this section.” (Emphasis

added.)    The section—R.C. 4511.195—contains pretrial seizure and retention

provisions, which detail the government’s authority to seize, remove, and store or

“otherwise immobilize” the vehicle until the final disposition of the case. See R.C.

4511.195(B)(1) and (5). Those provisions, for example, would not have authorized

the impoundment of the vehicle operated by one arrested for OVI in the event that

the offender did not have a prior OVI conviction as specified in subdivision(B)(1).

See Edwards, 5th Dist. No. 2012-CA-12, 2012-Ohio-5142.

       {¶21}       In this case, Lamke does not argue that the seizure and

impoundment of the vehicle was contrary to those pretrial seizure and retention

provisions. Thus, subdivision (D)(4) did not apply, and the trial court’s reliance on

(D)(4) in ordering the government to pay was erroneous.

                                  C. R.C. 4511.195(F)

       {¶22}       Both parties have ignored subdivision (F)(1) of R.C. 4511.195. This

provision provides the trial court with discretion to charge the “arrested person” the

“expenses or charges incurred in the removal and storage of the immobilized vehicle”

when the impoundment of the vehicle was authorized by R.C. 4511.195. The General

Assembly used the term “arrested person” instead of “offender,” indicating its intent

that the court may charge even those acquitted of the OVI offense if the seizure and

storage of the vehicle was authorized under the section.

       {¶23}       It is a well-settled rule of statutory interpretation that “words in a

statute do not exist in a vacuum. We must presume that in enacting a statute, the

General Assembly intended for the entire statute to be effective.” D.A.B.E., Inc. v.

Toledo-Lucas Cty. Bd. of Health, 96 Ohio St.3d 250, 2002-Ohio-4172, 773 N.E.2d

536, ¶ 19, citing R.C. 1.47(B).



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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶24}      The provisions of R.C. 4511.195, including divisions (D) and (F),

must be read as a whole, and no part should be disregarded. See Boley v. Goodyear

Tire & Rubber Co., 125 Ohio St.3d 510, 2010-Ohio-2550, 929 N.E.2d 448, ¶ 21.

Thus, we conclude that R.C. 4511.195 provides the court with discretion in the event

of an acquittal to charge the expenses and fees incurred for the removal and storage

of the vehicle to either the arrested person or the specified governmental party,

except where the impoundment of the vehicle was not authorized under the pretrial

seizure and retention provisions of the statute.

       {¶25}      Our reading of R.C. 4511.195 is bolstered by the legislative history

of the statute. When subdivision (D)(4) was added to the statute, subdivision (D)(2),

which pertains to acquittals, was also amended. See 2002 Am.Sub.S.B. No. 123,

effective January 1, 2004. The General Assembly deleted language that conditioned

the release of the vehicle and its license plates in the event of an acquittal “upon the

payment of any expenses or charges incurred in its removal or storage.”

                                     D. Remand

       {¶26}      In this case, the trial court determined that the continued retention

of Lamke’s motorcycle was not “authorized” as contemplated in R.C. 4511.195(D)(4),

and ordered the government to pay the requested storage fees under that

subdivision, which provides for the mandatory assessment of fees against the

government. But R.C. 4511.195(D)(4) did not apply where the government’s seizure

and continued retention of Lamke’s motorcycle complied with the provisions of the

statute. Because Lamke was acquitted of the OVI offense, subdivisions (D)(2) and

(F)(1) applied, and these provisions required the trial court to exercise its discretion

in determining whether the arrested person or the government should pay any or all

of the expenses and fees for the authorized pretrial seizure and storage of the vehicle.

       {¶27}      As a result, we hold that trial court applied an erroneous standard

when it granted Lamke’s motion requesting the court to order the county to pay the



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                     OHIO FIRST DISTRICT COURT OF APPEALS



challenged storage fees because the pretrial seizure and retention of his vehicle was

authorized under R.C. 4511.195, and we sustain the assignment of error on this basis.

Thus, we reverse the part of the trial court’s order imposing the fees against the

county, and we remand the case to the trial court for the court to apply the correct

standard in evaluating Lamke’s motion.

                E. Specificity in the Court’s Payment Order

       {¶28}      The state also argues that the trial court erred by ordering

“Hamilton County” to pay the storage fees without designating which agency within

Hamilton County is responsible for those fees. Because we are reversing the part of

the trial court’s order requiring Hamilton County to pay the challenged fees, this

issue is moot, and we decline to address it.

                                   V. Conclusion

       {¶29}      We hold that the trial court erred when it ordered Hamilton

County to pay the impound fees relating to the storage of Lamke’s vehicle under the

mandatory provision for the ordering of fees under R.C. 4511.195(D)(4), because the

seizure and retention of Lamke’s motorcycle was authorized under R.C. 4511.195.

We reverse the trial court’s order imposing the fees, and we remand the case to the

trial court to determine, in its discretion, whether to grant Lamke’s motion

concerning the requested fees.

                                      Judgment reversed in part and cause remanded.



HILDEBRANDT, P.J., and DINKELACKER, J., concur.


Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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