[Cite as Stark v. Edwards, 2012-Ohio-5142.]


                                       COURT OF APPEALS
                                      PERRY COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                      JUDGES:
STATE OF OHIO                                 :       Hon. W. Scott Gwin, P.J.
                                              :       Hon. John W. Wise, J.
                         Plaintiff-Appellee   :       Hon. Julie A. Edwards, J.
                                              :
-vs-                                          :
                                              :       Case No. 2012-CA-12
CHARLES EDWARDS                               :
                                              :
                    Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                          Criminal appeal from the Perry County
                                                  Court, Case No.TRC 1100879

JUDGMENT:                                         Reversed and Remanded




DATE OF JUDGMENT ENTRY:                           November 1, 2012

APPEARANCES:

For Plaintiff-Appellee                            For Defendant-Appellant

NANCY NASH RIDENOUR                               CHARLES EDWARDS
Assistant Prosecuting Attorney                    4204 Sunset Blvd.
P.O. Box 569                                      Steubenville, OH 43952
New Lexington, OH 43764
[Cite as Stark v. Edwards, 2012-Ohio-5142.]


Gwin, P.J.

        {¶1}    Appellant, Charles Edwards [“Edwards”] appeals the April 11, 2012

judgment entry of the Perry County Court ordering him to pay a portion of the fees in

order to release his car from impoundment. Appellee is the State of Ohio.

                                              Procedural History

        {¶2}    On July 10, 2011, Edwards was charged with OVI. His vehicle, a 1985

Toyota Supra, was impounded and towed to Snider's impound lot. On August 12, 2011,

Edwards filed a motion to release the vehicle. On November 21, 2011, the Court signed

an Order to release the vehicle. The order was prepared by and approved by counsel

for Edwards. That Order was silent as to who should pay storage fees. A release was

prepared by the Perry County Probation Department and submitted to Snider’s.

        {¶3}    Edwards attempted to obtain his vehicle; however, the impound lot

refused to release the vehicle until the storage and impound fees were paid. Edwards

refused to pay the fees. Consequently, the car remained in the impound lot.

        {¶4}    On February 15, 2012, Edwards filed “Defendant’s Motion for Costs.”

Edwards requested that the Perry County Sheriff’s Office pay the impoundment fee

because the impoundment of his vehicle was unauthorized. R.C. 4511.195(D)(4).

        {¶5}    By Judgment Entry filed February 24, 2012, the Court ordered storage

fees to be divided among the Perry County Sherriff’s Office, and the Court’s Special

Project’s Fund.

        {¶6}    On March 21, 2012, Edwards filed “Defendant’s Motion to Compel and

Show Cause.” In his motion, Edwards alleged that the impound fees had not been paid

as directed by the Court’s February 24, 2012 order.
Perry County, Case No. 2012-CA-12                                                                    3


       {¶7}    By Judgment Entry filed April 11, 2012, the trial court ordered in relevant

part as follows,

               Therefore, the Court has determined that the Perry County Sheriff

       Office will be responsible for the cost of Impoundment from July 10, 2011

       to August 12, 2011, the Perry County Court will be responsible for the cost

       of impound from August 13, 2011 to November 23, 2011, finally the

       Defendant Charles Edwards will be responsible for cost incurred from

       November 24, 2011 to current.

                                           Assignments of Error

       {¶8}    Edwards raises four assignments of error1,

       {¶9}    “I. THE TRIAL COURT ERRED AT THE INITIAL HEARING OF THIS

CASE WHEN IT FAILED TO OBSERVE THE REQUIREMENTS OF OHIO REVISED

CODE SECTION 4511.195(B)(3).

       {¶10} “II. THE TRIAL COURT ERRED IN ITS DECISION AND ENTRY OF

APRIL, 2012, WHEN IT RULED THAT THE IMPOUNDED VEHICLE WAS

ORIGINALLY RELEASED FROM IMPOUNDMENT BY THE ORDER ISSUED BY THE

TRIAL COURT ON NOVEMBER 21, 2011.

       {¶11} “III. THE TRIAL COURT ERRED IN BY NOT REQUIRING THE SHERIFF

TO PAY THE ENTIRE AMOUNT OF IMPOUND FEES IN ITS ORDER OF FEBRUARY

24, 2012 IN ACCORDANCE WITH R.C. 4511.195(B)(3).

       {¶12} “IV. THE TRIAL COURT ERRED IN THE DECISION AND ENTRY IT

FILED ON APRIL 11, 2012, WHEN IT RULED THAT DEFENDANT-APPELLANT WAS

       1
          We note that the assignments of errors in Edwards’ brief are multiple paragraphs that contain
facts and arguments. We have culled the assignments of error in this Opinion to be the crux of Edwards’
contentions.
Perry County, Case No. 2012-CA-12                                                           4


RESPONSIBLE FOR PAYMENT OF IMPOUNDMENT COSTS FROM NOVEMBER 24,

2011 TO THE CURRENT DATE.”

       {¶13} Edwards’ four assignments of error raise common and interrelated issues;

therefore, we will address the arguments together.

                                              Analysis

       {¶14} 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 operating a

motor vehicle while under the influence of alcohol (“OVI”). The parties in the case at bar

agree that at the time of his arrest, Edwards did not have a prior OVI conviction.

       {¶15} R.C. 4511.195 (D) states,

              (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. (Emphasis added).

       {¶16} The primary purpose of the judiciary in the interpretation or construction of

a statue is to give effect to the intention of the legislature, as gathered from the

provisions enacted by application of well-settled rules of construction or interpretation.

Henry v. Central National Bank, 16 Ohio St.2d 16, 20, 242 N.E.2d 342(1968). (Quoting

State ex rel. Shaker Heights Public Library v. Main, 83 Ohio App. 415, 80 N.E.2d

261(8th Dist.1948)). It is a cardinal rule that a court must first look to the language itself
Perry County, Case No. 2012-CA-12                                                            5

to determine the legislative intent. Provident Bank v. Wood, 36 Ohio St.2d 101, 105, 304

N.E.2d 378(1973). If that inquiry reveals that the statute conveys a meaning that is

clear, unequivocal and definite, at that point, the interpretive effort is at an end, and the

statute must be applied accordingly. Id. at 105–106, 304 N.E.2d 378. In determining

legislative intent, it is the duty of the court to give effect to the words used, not to delete

words used or to insert words not used. Columbus–Suburban Coach Lines v. Public

Utility Comm, 20 Ohio St.2d 125, 127, 254 N.E.2d 8 (1969). See also, In re:

McClanahan, 5th Dist. No. 2004AP010004, 2004–Ohio–4113, 2004 WL 1758408, ¶ 16.

       {¶17} R.C. 1.42 states: “1.42 Common and technical usage. Words and phrases

shall be read in context and construed according to the rules of grammar and common

usage. Words and phrases that have acquired a technical or particular meaning,

whether by legislative definition or otherwise, shall be construed accordingly.”

       {¶18} The word “shall” is usually interpreted to make the provision in which it is

contained mandatory. Dorrian v. Scioto Conservancy District, 27 Ohio St. 2d 102, 107,

271 N.E.2d 834 (1971). In contrast, the use of the word “may” is generally construed to

make the provision in which it is contained optional, permissive, or discretionary. Id. The

words “shall” and “may” when used in statutes are not automatically interchangeable or

synonymous. Id. To give the “may” as used in a statute a meaning different from that

given in its ordinary usage, it must clearly appear that the Legislature intended that it be

so construed from a review of the statute itself. Id. at 107– 108, 271 N.E. 2d 834. In re:

McClanahan, supra at ¶ 17.

       {¶19} The language of R.C. 4511.195(D)(4) is clear and unambiguous on its

face and needs no interpretation. Accordingly, this Court concludes that the Ohio
Perry County, Case No. 2012-CA-12                                                        6


General Assembly specifically intended to prohibit charging the accused impound fees

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

       {¶20} Edwards’ four assignments of error are sustained.

       {¶21} The judgment of the Perry County Court is vacated and this case is

remanded for the limited purpose of ordering 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 of Edwards’ vehicle.



By Gwin, P.J.,

Wise, J., and

Edwards, J., concur


                                              _________________________________
                                              HON. W. SCOTT GWIN


                                              _________________________________
                                              HON. JOHN W. WISE


                                              _________________________________
                                              HON. JULIE A. EDWARDS
WSG:clw 1022
[Cite as Stark v. Edwards, 2012-Ohio-5142.]


                IN THE COURT OF APPEALS FOR PERRY COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO                                    :
                                                 :
                            Plaintiff-Appellee   :
                                                 :
                                                 :
-vs-                                             :       JUDGMENT ENTRY
                                                 :
CHARLES EDWARDS                                  :
                                                 :
                                                 :
                       Defendant-Appellant       :       CASE NO. 2012-CA-12



        For the reasons stated in our accompanying Memorandum-Opinion, The

judgment of the Perry County Court is vacated and this case is remanded for the limited

purpose of ordering 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 of Edwards’ vehicle. Costs to appellee.




                                                     _________________________________
                                                     HON. W. SCOTT GWIN


                                                     _________________________________
                                                     HON. JOHN W. WISE


                                                     _________________________________
                                                     HON. JULIE A. EDWARDS
