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State v. Varholick

Court of Appeals of Ohio, Eighth District, Cuyahoga

December 21, 2017

STATE OF OHIO PLAINTIFF-APPELLANT
v.
JAMES VARHOLICK DEFENDANT-APPELLEE

         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-09-526692-A

          ATTORNEYS FOR APPELLANT Michael C. O'Malley Cuyahoga County Prosecutor BY: Gregory J. Ochocki Assistant County Prosecutor

          FOR APPELLEE James Varholick, pro se

          BEFORE: Jones, J., McCormack, P.J., and E.T. Gallagher, J.

          JOURNAL ENTRY AND OPINION

          LARRY A. JONES, SR., J.

         {¶1} This cause came to be heard upon the accelerated calendar pursuant to App.R. 11.1 and LocR. 11.1, the trial court records and briefs of counsel.

         {¶2} Plaintiff-appellant, the state of Ohio, appeals the trial court's decision to restore driving privileges to defendant-appellee, James Varholick. We reverse.

         {¶3} In 2009, Varholick pleaded guilty to operation while under the influence of alcohol ("OVI"), in violation of R.C. 4511.19(A)(1). The offense was a third-degree felony pursuant to R.C. 4511.19(G)(1)(e) because Varholick had multiple prior OVI convictions. The trial court sentenced Varholick to four years in prison to run consecutive to another OVI case and imposed a lifetime driver's license suspension. This court affirmed his conviction. State v. Varholick, 8th Dist. Cuyahoga No. 94187, 2010-Ohio-5132.

         {¶4} In April 2016, the trial court granted Varholick limited driving privileges over the state's objection and limited his driving privileges to work and medical appointments. In December 2016, Varholick petitioned the trial court to reinstate his license without restrictions, pursuant to R.C. 4510.028, which the state opposed. The trial court did not hold a hearing on the matter but reinstated Varholick's driving privileges in May 2017.

         {¶5} The state moved for leave to appeal, which this court granted. The state assigns two errors for our review:

I. The trial court erred when it granted the termination of a lifetime driver's license suspension pursuant to R.C. 4510.038 when the suspension was imposed pursuant to R.C. 4511.19(G)(1)(e)(iv).
II. The trial court erred when it granted appellee's motion to modify or terminate his lifetime driver's license suspension before the fifteen year waiting period set forth in R.C. 4510.54 had elapsed and without first holding a hearing.

         {¶6} In the first assignment of error, the state claims that the trial court erred when it terminated Varholick's previously imposed lifetime driver's license suspension pursuant to R.C. 4510.038.

         {¶7} Varholick moved to have his license reinstated under R.C. 4510.038, the statute that governs the conditions for the return of full driving privileges and provides that an offender whose driver's license has been suspended, or, any offender who is granted limited driving privileges under R.C. 4510.37, 4511.19 or 4510.07, is not eligible to have his or her driving privileges reinstated until that person has (1) successfully completed a course of remedial driving instruction approved by the director of public safety; (2) been examined in the manner provided for by R.C. 4507.20 and found by ...


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