[Cite as State v. Dunn, 2013-Ohio-3490.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. Sheila G. Farmer, P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
TERRANCE DUNN : Case No. 2013CA00122
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Canton Municipal
Court, Case No. 2013TRC01766
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT: August 12, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KATIE ERCHICK ADAM W. WILGUS
218 Cleveland Avenue, SW 401 Tuscarawas Street, West
P.O. Box 24218 Suite 200
Canton, OH 44701-4218 Canton, OH 44702
Stark County, Case No. 2013CA00122 2
Farmer, J.
{¶1} On March 29, 2013, appellant, Terrance Dunn, was charged with
operating a motor vehicle under the influence in violation of R.C. 4511.19. Because
appellant refused to take a breathalyzer test, he received a one year administrative
license suspension. On April 2, 2013, appellant appealed the suspension.
{¶2} A jury trial commenced on May 29, 2013, and appellant was found not
guilty. On June 10, 2013, appellant filed a motion to terminate his suspension and the
reinstatement fee for failure to hold an evidentiary hearing on his appeal. By judgment
entry filed June 11, 2013, the trial court denied the motion.
{¶3} Appellant filed an appeal and this matter is now before this court for
consideration. Assignment of error is as follows:
I
{¶4} "THE TRIAL COURT ERRED WHEN IT DENIED DEFENDANT-
APPELLANT'S MOTION TO TERMINATE THE ADMINISTRATIVE LICENSE
SUSPENSION."
I
{¶5} Appellant claims the trial court erred in denying his motion to terminate his
administrative license suspension as it failed to hold an evidentiary hearing on his
appeal. We agree.
{¶6} R.C. 4511.197(A) provides for an appeal of an administrative license
suspension. Subsection (C) sets forth a list of conditions for the imposition of an
administrative license suspension. Subsection (D) states the following:
Stark County, Case No. 2013CA00122 3
(D) A person who appeals a suspension under division (A) of this
section has the burden of proving, by a preponderance of the evidence,
that one or more of the conditions specified in division (C) of this section
has not been met. If, during the appeal, the judge or magistrate of the
court or the mayor of the mayor's court determines that all of those
conditions have been met, the judge, magistrate, or mayor shall uphold
the suspension, continue the suspension, and notify the registrar of motor
vehicles of the decision on a form approved by the registrar.
{¶7} In State v. Norman, 5th Dist. Knox No. 2005CA00022, 2005-Ohio-5791, ¶
17, this court reversed a case for lack of evidentiary hearing on an administrative
license suspension appeal, stating the following:
We have read R.C. 4511.197, and find the statute does not
expressly set forth the procedure a trial court is to follow in reviewing an
appeal of an administrative license suspension. The statute clearly
provides for an appeal as a means to seek relief from an administrative
license suspension. We find inherent in an ALS appeal is an opportunity
for an individual to be heard. The statute expressly places the burden of
proof of a preponderance of the evidence on the person appealing the
ALS. Here the appellant was denied both.
{¶8} The state concedes the issue in its brief at 3.
Stark County, Case No. 2013CA00122 4
{¶9} Upon review, we reverse the trial court's decision on appellant's motion to
terminate his administrative license suspension, and remand the matter for an
evidentiary hearing.
{¶10} The sole assignment of error is granted.
{¶11} The judgment of the Canton Municipal Court of Stark County, Ohio is
hereby reversed.
By Farmer, P.J.
Delaney, J. and
Baldwin, J. concur.
_______________________________
Hon. Sheila G. Farmer
_______________________________
Hon. Patricia A. Delaney
_______________________________
Hon. Craig R. Baldwin
SGF/sg 722
[Cite as State v. Dunn, 2013-Ohio-3490.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
TERRANCE DUNN :
:
Defendant-Appellant : CASE NO. 2013CA00122
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Canton Municipal Court of Stark County, Ohio is reversed, and the
matter is remanded to said court for further proceedings consistent with this opinion.
Costs to appellee.
_______________________________
Hon. Sheila G. Farmer
_______________________________
Hon. Patricia A. Delaney
_______________________________
Hon. Craig R. Baldwin