State v. Hair

[Cite as State v. Hair, 2021-Ohio-2136.]

IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY

State of Ohio/City of Toledo Court of Appeals No. L-20-1142
L-20-1143
Appellee L-20-1144

Trial Court No. TRC-18-17788
v. TRD-13-37604

Christopher G. Hair DECISION AND JUDGMENT

Appellant Decided: June 25, 2021

*****

David Toska, Chief Prosecutor, and Christopher Lawrence,
Assistant Prosecutor, for appellee.

Christopher G. Hair, pro se.

*****

DUHART, J.

{¶ 1} This matter is before the court on the consolidated notices of appeal filed by

appellant, Christopher G. Hair, on November 9, 2020, in connection with the trial court’s

failure to terminate appellant’s administrative license suspension (“ALS”) and the trial
court’s decision not to seal appellant’s dismissed traffic offenses. For the reasons that

follow, we affirm the failure to terminate the ALS, and we reverse the decision not to seal

the dismissed traffic offenses and remand that matter so that the trial court can conduct a

hearing pursuant to R.C. 2953.52.

{¶ 2} Appellant sets forth the following assignments of error:

I. Toledo Municipal Court abused its discretion by not terminating

the ALS when applicable statute permitted that action.

II. Toledo Municipal Court abused its discretion by not granting the

sealing of eight dismissed complaints when applicable statute permitted

that action.

III. Toledo Municipal Court made an erroneous interpretation which

led to a prejudicial error in the court’s conclusion of law that caused the

denial of eight of Mr. Hair’s motions to seal the record.

IV. Toledo Municipal Court made an erroneous interpretation that

caused a prejudicial error in the court’s conclusion of law that continued the

ALS associated with a dismissed OVI complaint.

Factual and Procedural Background

TRC-18-1788, “The ALS Case”

{¶ 3} On August 6, 2018, appellant was charged with OVI in Toledo Municipal

Court. According to the state, appellant refused to submit to a breath test and, as a result,

his license was placed under an ALS pursuant to R.C. 4511.191(B)(1). Appellant denies

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that he refused the breath test, stating that he ultimately did submit to one after he was

transported to the police station. (In claiming that he submitted to a breath test, appellant

conceded, in at least one trial court pleading, that the officer deemed his test inadequate

and ultimately changed appellant’s status to refusal.)

{¶ 4} The case was scheduled for an ALS appeal hearing on August 24, 2018.

Appellant failed to appear for the hearing on that date. On August 27, 2018, appellant

filed a motion to reopen/continue the ALS appeal hearing, as well as a motion to suppress

evidence. These motions were scheduled to be heard at a pre-trial conference on

September 10, 2018. Appellant appeared with a public defender on this date, and the

motion to suppress was withdrawn. No entry or ruling was made concerning appellant’s

request to reopen his ALS appeal. The case proceeded through several more pre-trials

and trial dates. On November 16, 2018, appellant filed another motion to suppress

evidence and, in the alternative, to dismiss the charges. The trial court scheduled motion

hearings for December 19, 2018. On December 19, 2018, appellant once again failed to

appear.

{¶ 5} Appellant was given a summons and ordered to appear on January 22, 2019.

On January 22, 2019, the case was rescheduled for trial on February 27, 2019. On

February 27, 2019, appellant again failed to appear, and another warrant was issued.

Later that same day, appellant appeared with new counsel, and the case was reset for trial

on March 11, 2019. On March 11, 2019, the case was continued until March 18, 2019.

On March 18, 2019, the case was reset for a suppression hearing on April 11, 2019. On

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April 10, 2019, appellant appeared and the case was continued once again, until April 29,

2019, for the suppression hearing. On April 29, 2019, appellant again failed to appear for

hearing, and another warrant was issued for his arrest.

{¶ 6} On May 6, appellant appeared, and the suppression hearing was rescheduled

for June 11, 2019. On May 29, 2019, the hearing was again continued, this time until

June 18, 2019. On June 14, 2019, the suppression hearing was continued until July 1,

2019. On July 1, 2019, the suppression hearing finally occurred and the trial court denied

appellant’s motion to suppress. The case was set for trial on July 30, 2019. On July 19,

2019, appellant filed a written demand for a jury trial, and the July 30, 2019 date was

converted into a jury pre-trial conference. On July 30, 2019, the trial court scheduled

another ALS appeal hearing for August 5, 2019. On August 5, 2019, appellant once

again failed to appear for his ALS appeal. The trial court wrote that the ALS hearing was

“denied,” and the case was scheduled for a jury trial on September 25, 2019.

{¶ 7} The case was continued and rescheduled several times between September

25, 2019 and February of 2020. Each time, there was no further reference to the ALS

appeal hearing. On February 4, 2020, the OVI charge was dismissed. Appellant pleaded

no contest to a charge of failure to reinstate his license. On this date, the trial court

ordered that the ALS would continue, despite the OVI charge having been dismissed.

{¶ 8} On February 12, 2020, appellant filed another ALS appeal. On the same

day, the trial court denied the motion as untimely. On February 18, appellant filed a

motion to seal the record and terminate the ALS. The case was scheduled for an

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expungement hearing on March 19, 2020. On March 20, 2020, the hearing was

rescheduled for April 17, 2020. On April 17, the case was continued until June 8, 2020.

On June 3, 2020, appellant filed a motion to continue the expungement hearing. The

motion was granted, and the hearing was continued until June 30, 2020. On June 26,

2020, appellant filed another motion to continue the hearing. This was granted and the

case was reset for hearing on July 23, 2020. On July 23, 2020, the motion to seal the

record was denied. This appeal followed.

Traffic Cases

{¶ 9} On November 8, 2013, appellant was charged, in case No. TRD-13-37604,

with operating a motor vehicle without a license, a marked lanes violation, and a traffic

control devices violation. On December 12, 2013, counts 1 and 2 were dismissed.

Appellant pleaded no contest to count 3 and was sentenced to pay a fine and court costs.

On March 13, 2020, appellant filed a motion to seal the record as to counts 1 and 2. After

various continuances of the hearing due to COVID-19, the matter was ultimately

scheduled for hearing on July 23, 2020. On this date, the trial court denied appellant’s

motion to seal.

{¶ 10} On May 30, 2015, appellant was charged, in case No. TRD-15-18029, with

operating a motor vehicle with no license, slow speed, and a display of license plates

violation. On September 17, 2015, all three counts were dismissed, with appellant

agreeing to pay court costs on count 1. On March 13, 2020, appellant filed a motion to

seal the record on all three counts. An expungement hearing was scheduled for June 30,

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2020. On June 29, 2020, the trial court denied appellant’s motion without a hearing,

holding that traffic tickets were not eligible for expungement.

{¶ 11} On November 29, 2015, appellant was charged, in case No. TRC-15-

38331, with operating a vehicle while intoxicated and with failure to control. On

February 17, 2017, appellant pleaded guilty to an amended charge of reckless operation

and count 2 was dismissed. On March 13, 2020, appellant filed a motion to have the

record sealed as to count 2. The matter was scheduled for a hearing on June 30, 2020.

On June 29, 2020, the trial court denied appellant’s motion without a hearing, holding

that traffic offenses were not eligible to be sealed.

{¶ 12} On August 26, 2016, appellant was cited, in case No. TRD-16-22309, with

failing to stop behind the stop bar. On September 1, 2016, the case was dismissed upon

the payment of court costs. On March 13, 2020, the trial court, again without a hearing,

denied appellant’s motion to seal.

{¶ 13} Appellant filed appeals for each of the denials.

Argument

Appellant failed to appear for his ALS Appeal.

{¶ 14} As appellant’s first and fourth assignments of error both challenge the trial

court’s failure to terminate the ALS, we will consider them together in our analysis. The

standard of review in an appeal of a trial court’s continuation of an administrative license

suspension is whether there is some competent, credible evidence to support the lower

court’s ruling. State v. Williams, 6th Dist. Ottawa No. OT-03-020, 2004-Ohio-2453, ¶ 7.

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 {¶ 15} On August 10, 2018, appellant filed his first ALS appeal, arguing: (1) that

the ALS was unconstitutional according to his Fourth Amendment rights and, further,

failed to satisfy R.C. 4511.197(C)(1), inasmuch as the arresting officer did not have

reasonable suspicion to charge appellant with an OVI or to demand a field sobriety test;

and (2) that R.C. 4511.197(C)(4) was not met, because he actually did submit to a breath

test after he was transported to the police station. As indicated above, appellant failed to

appear on the August 24, 2018 hearing date. The magistrate mentioned appellant’s

failure to appear and included the notation “ALS dismissed” in its August 24, 2018

journal entry. In filing a motion to reopen/continue the ALS hearing three days later, on

August 27, 2018, appellant demonstrated his understanding that the suspension was still

in place. This motion was not addressed until July 30, 2019. The second ALS appeal

hearing was scheduled for August 5, 2019. On August 5, 2019, appellant once again

failed to appear for hearing. The trial court wrote in its August 5, 2019 journal entry that

the “ALS hearing” was “denied.”

{¶ 16} Regarding the procedure to which an ALS appellant is entitled, the Fifth

District Court of Appeals has stated:

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.

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 We find inherent in an ALS appeal is an opportunity for an individual to be

heard.

State v. Norman, 5th Dist. Knox No. 2005CA00022, 2005-Ohio-5791, ¶ 17. Thus,

“[i]mplicit in the statute is the right to an evidentiary hearing.” State v. Katz, 5th Dist.

Delaware No. 09CAC030028, 2009-Oio-5803, ¶ 25. Further, “the lack of any mention

[of][,] or order relative to[,] the ALS appeal is tantamount to a denial of appellant’s right

to a hearing pursuant to R.C. 4511.197.” Id.

{¶ 17} In the instant case, appellant had not one, but two ALS evidentiary hearings

scheduled, each of which granted him the opportunity to be heard. He failed to appear on

both occasions. On August 24, 2018, the magistrate, in its journal entry, deemed the ALS

appeal “dismissed.” And on August 5, 2019, the trial court indicated in its journal entry

that the appeal was denied.

{¶ 18} Where there is an evidentiary hearing to determine whether to terminate an

ALS, “the licensee has the burden of showing, by a preponderance of the evidence, that

the actions of the Bureau of Motor Vehicles were taken in error.” State v. Williams, 6th

Dist. Ottawa No. OT-03-020, 2004-Ohio-2453, ¶ 7. In general, this means that the

burden is on the licensee to disprove one of the four conditions laid out in R.C.

4511.197(C). See State v. Ferguson, 6th Dist. No. L-16-1118, 2017-Ohio-1394, ¶ 11-12.

Those four conditions are that: (1) the officer had reasonable grounds to believe the

offender was driving impaired; (2) the officer requested a chemical or other test to

determine impairment; (3) the officer properly informed or notified the offender of the

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consequences of refusing to submit to the test; and (4) the officer refused to submit the

test results, or the test results failed to show that the offender was driving impaired. See

R.C. 4511.197(C). A licensee will be “relieved of the burden of proving that one of the

R.C. 4511.197(C) conditions had not been met where the BMV fails to present prima

facie proof the officer complied with all mandates of R.C. 4511.192. State v. Ferguson,

6th Dist. No. L-16-1118, 2017-Ohio-1394, ¶ 24. Because appellant never presented any

evidence for the trial court to weigh, and because there was never any stipulation by the

city of Toledo that R.C. 4511.192 had not been followed, appellant’s ALS appeal was

properly denied.

Dismissal of the OVI did not terminate the ALS.

{¶ 19} In State v. Hair, 2d Dist. Greene No. 2019-CA-73, 2020-Ohio-3128, the

Second District Court of Appeals considered a nearly identical argument to the one

appellant makes here, which is that appellant’s ALS should have been terminated after

his underlying OVI case was dismissed without prejudice pursuant to R.C. 4511.197(D).

Id. at ¶ 18-19. The Second District court disagreed, concluding that R.C. 4511.197(D)

does not provide for the termination of an ALS following dismissal of the underlying

offense.

{¶ 20} R.C. 4511.197(D) pertinently provides:

***

Except as otherwise provided in this section, if a suspension imposed

under section 4511.191 of the Revised Code is upheld on appeal or if the

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 subject person does not appeal the suspension under division (A) of this

section, the suspension shall continue until the complaint alleging the

violation for which the person was arrested and in relation to which the

suspension was imposed is adjudicated on the merits or terminated pursuant

to law. If the suspension was imposed under division (B)(1) of section

4511.191 of the Revised Code and it is continued under this section, any

subsequent finding that the person is not guilty of the charge that resulted in

the person being requested to take the chemical test or tests under division

(A) of section 4511.191 of the Revised Code does not terminate or

otherwise affect the suspension. If the suspension was imposed under

division (C) of section 4511.191 of the Revised Code in relation to an

alleged misdemeanor violation of division (A) or (B) of section 4511.19 of

the Revised Code or of a municipal OVI ordinance and it is continued

under this section, the suspension shall terminate if, for any reason, the

person subsequently is found not guilty of the charge that resulted in the

person taking the chemical test or tests.

{¶ 21} Appellant’s suspension was imposed under R.C. 4511.191(B)(1), because

he refused to submit to a chemical breath test. The statute is clear that appellant’s

suspension, imposed under R.C. 4511.191(B)(1), would not be affected by dismissal of

the OVI case.

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 {¶ 22} Even, assuming arguendo, appellant’s suspension had been imposed under

R.C. 4511.191(C), for testing positive after submitting to the chemical breath test, his

argument still fails. Because appellant’s OVI case was dismissed prior to trial, there was

no decision on the merits of the OVI. As stated by the court in Hair:

* * * R.C. 4511.197(D) explicitly states that it requires a finding of

‘not guilty’ for the OVI before the AL imposed pursuant to R.C.

4511.191(C) may be terminated. Hair’s OVI charge was dismissed without

prejudice, so no finding of not guilty was made. Thus, R.C. 4511.197(D)

did not provide a basis to terminate Hair’s ALS.

Hair, 2020-Ohio-3128, ¶ 19. Likewise, in the instant case, Hair’s OVI charge was

dismissed without prejudice, so no finding of not guilty was made. Accordingly, R.C.

4511.197(D) did not provide a basis upon which to terminate Hair’s ALS, and the trial

court did not err when it refused to terminate appellant’s ALS.

{¶ 23} For the foregoing reasons, appellant’s first and fourth assignments of error

are found not well-taken.

The trial court failed to hold the required hearing on
appellant’s motion to seal the traffic cases.

{¶ 24} We next consider appellant’s second and third assignments of error,

challenging the trial court’s failure to seal the record of his dismissed traffic counts. R.C.

2953.52, which governs applications to have records sealed, relevantly provides:

(A)(1) Any person, who is found not guilty of an offense by a jury or

a court or who is the defendant named in a dismissed complaint,

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 indictment, or information, may apply to the court for an order to seal the

person's official records in the case. Except as provided in section 2953.61

of the Revised Code, the application may be filed at any time after the

finding of not guilty or the dismissal of the complaint, indictment, or

information is entered upon the minutes of the court or the journal,

whichever entry occurs first.

***

(B)(1) Upon the filing of an application pursuant to division (A) of

this section, the court shall set a date for a hearing and shall notify the

prosecutor in the case of the hearing on the application. The prosecutor may

object to the granting of the application by filing an objection with the court

prior to the date set for the hearing. The prosecutor shall specify in the

objection the reasons the prosecutor believes justify a denial of the

application.

(2) The court shall do each of the following, except as provided in

division (B)(3) of this section:

(a)(i) Determine whether the person was found not guilty in the case,

or the complaint, indictment, or information in the case was dismissed, or a

no bill was returned in the case and a period of two years or a longer period

as required by section 2953.61 of the Revised Code has expired from the

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 date of the report to the court of that no bill by the foreperson or deputy

foreperson of the grand jury;

(ii) If the complaint, indictment, or information in the case was

dismissed, determine whether it was dismissed with prejudice or without

prejudice and, if it was dismissed without prejudice, determine whether the

relevant statute of limitations has expired;

(b) Determine whether criminal proceedings are pending against the

person;

(c) If the prosecutor has filed an objection in accordance with

division (B)(1) of this section, consider the reasons against granting the

application specified by the prosecutor in the objection;

(d) Weigh the interests of the person in having the official records

pertaining to the case sealed against the legitimate needs, if any, of the

government to maintain those records.

The requirement of a hearing in connection with an application to have records sealed, as

set forth in R.C. 2953.52(B), is mandatory. See State v. Gearhardt, 2d Dist. Montgomery

No. 28088, 2019-Ohio-39.

{¶ 25} In the instant case, there record is clear that no hearing was held in

connection with appellant’s application to seal the record of his dismissed traffic counts.

Even the city of Toledo concedes that such a hearing should have been conducted. As a

result of the trial court’s failure to hold a mandatory hearing pursuant to R.C. 2952.52(B),

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the record, as it stands, does not support any decision on the merits of appellant’s claims.

Accordingly, appellant’s second and third assignments of error are found well-taken. The

judgment of the trial court with respect to the sealing of the records is reversed, and the

matter is remanded for further proceedings consistent with this opinion. Appellant and

appellee are ordered to divide the costs of this appeal, pursuant to App.R. 24.

Judgment affirmed, in part,
and reversed, in part.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
Myron C. Duhart, J. JUDGE
CONCUR.
_______________________________
JUDGE

This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.

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