State v. Rhoads , 2011 Ohio 3023 ( 2011 )

[Cite as State v. Rhoads, 2011-Ohio-3023.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. Sheila G. Farmer, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 11-CA-14
JONATHAN D. RHOADS :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Fairfield County Municipal
Court Case No. 10-TRC-13950
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: June 13, 2011
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
MATTHEW B. WIDEMAN 0075118 JAMES R. KINGSLEY 0010720
123 East Chestnut Street 157 West Main Street
P.O. Box 1008 Circleville, Ohio 43113
Lancaster, Ohio 43130
[Cite as State v. Rhoads, 2011-Ohio-3023.]
Delaney, J.
{¶1} Defendant-Appellant Jonathan Rhoads appeals the judgment of the
Fairfield County Municipal Court, denying his appeal of an ALS suspension after he was
arrested for Operating a Vehicle Under the Influence (“OVI”) in violation of R.C.
4511.19. The State of Ohio is Plaintiff-Appellee.
{¶2} On December 21, 2010, Appellant was pulled over by the Ohio Highway
Patrol for speeding. The trooper observed an odor of alcohol on Appellant and
indicated on the BMV 2255 form that Appellant had glassy eyes. The trooper requested
that Appellant exit his vehicle and asked Appellant to perform field sobriety tests.
Appellant refused to complete any field sobriety tests and the trooper still noticed an
odor of alcohol on Appellant’s person.
{¶3} Appellant was arrested and transported to jail, where he was read the
BMV 2255 form and he refused to submit a chemical test of his breath. He was placed
under an administrative license suspension (“ALS”).
{¶4} The next day, Appellant appeared in the Fairfield County Municipal Court
for his initial appearance. He did not request a stay of the ALS or appeal it at that time.
On January 10, 2011, Appellant requested a judicial review of the ALS and that request
was granted and the case was set for an ALS appeal hearing on February 7, 2011. The
hearing was conducted and the trial court overruled Appellant’s appeal.
{¶5} On February 24, 2011, Appellant’s counsel filed an affidavit of
disqualification of the municipal court judge. Disqualification was denied on March 11,
2011 by a judge of the court of common pleas, probate and juvenile division.
{¶6} Appellant now appeals to this Court and raises two Assignments of Error:
Fairfield County, Case No. 11-CA-14 3
{¶7} “I. DID THE TRIAL COURT COMMIT PREJUDICIAL ERROR WHEN IT
OVERRULED DEFENDANT’S ALS APPEAL?
{¶8} “II. WAS IT PREJUDICIAL ERROR FOR JUDGE HARRIS TO PRESIDE?”
I.
{¶9} In his first assignment of error, Appellant argues that the trial court erred in
overruling his ALS appeal. We disagree.
{¶10} The Ohio Supreme Court has held an appeal of an ALS suspension is a
civil matter; see State v. Williams (1996), 76 Ohio St.3d 290, 667 N.E.2d 932. For this
reason, we apply the standard set forth in C.E. Morris Company v. Foley Construction
Company (1978), 54 Ohio St.2d 279, 376 N.E.2d 578. A civil judgment which is
supported by competent and credible evidence may not be reversed as against the
manifest weight of the evidence. This Court may not substitute its judgment for that of
the trial court. Myers v. Garson (1993), 66 Ohio St.3d 610, 614 N.E.2d 742.
{¶11} Currently, when an offender is arrested on a charge of OVI, an arresting
officer, acting on behalf of the Registrar of Motor Vehicles (“BMV”), is required to
immediately seize the license of a driver under arrest for drunk driving who either
refuses to submit to the designated chemical test [of blood, breath or urine] or submits
to the designated chemical test and fails by testing over the statutory limit. R.C.
4511.191(B)(1). An administrative license suspension may range in duration from ninety
days for an arrestee who fails a chemical test and has not been convicted within the
preceding five years of a violation of R.C. 4511.19 (R.C. 4511.191(B)(1)) to five years
for an arrestee who has refused three or more previous chemical tests within the
preceding five years, R.C. 4511.191(B)(1). The ALS remains in effect at least until the
Fairfield County, Case No. 11-CA-14 4
arrestee's initial appearance on the OVI charge, which must be held within five days of
the arrest. R.C. 4511.191(D)(2).
{¶12} R.C. 4511.197 makes the granting of limited driving privileges during a
suspension discretionary with the court. Appellant argues the trial court has a policy of
never granting occupational driving privileges in a refusal case. See e.g., State v.
Crosier (May 1, 1986), 5th Dist. No. 85AP12-092. Our standard of review is the abuse
of discretion standard. Crosier, supra. In Crosier, this Court reviewed a trial court's
admitted policy of not granting occupational privileges if there is a refusal to take a
chemical test. This Court found a trial court must exercise its judgment, and abuses its
discretion where it simply imposes a universal policy on every case before it. See also,
State v. Ritch (September 21, 1999), 4th Dist. No. 99-CA-2634.
{¶13} The trial court was not dilatory in its disposition of the ALS appeal.
Appellant failed to request a stay or appeal the suspension at his arraignment. It was
not until eighteen days later that he filed an appeal of the ALS. The trial court set a
hearing date which occurred twenty-eight days after Appellant filed his appeal. An
appeal of an ALS suspension does not stay the suspension and the appeal may be
continued, by motion of the parties or by the court. A continuance does not stay the
suspension. R.C. 4511.197(A).
{¶14} Appellant’s testimony at the ALS hearing, coupled with the BMV 2255
form, formed a sufficient basis for the trial court’s decision to deny driving privileges and
to refuse to dismiss the ALS. There is simply no credible evidence before us that the
trial court universally denies all ALS appeals or that it never grants driving privileges on
a case where a defendant refuses to submit to testing.
Fairfield County, Case No. 11-CA-14 5
{¶15} Accordingly, we do not find that the trial court abused its discretion in
denying the dismissal of the ALS or in holding the hearing on the ALS appeal within 28
days of the filing of the appeal by Appellant.
{¶16} Appellant’s first assignment of error is overruled.
II.
{¶17} In his second assignment of error, Appellant challenges the denial of his
motion for disqualification of the municipal court judge. Such a challenge cannot
properly be brought before this Court.
{¶18} No appeal from an order of disqualification in a proceeding under R.C.
2937.20 is specifically authorized by the Constitution or laws of the state of Ohio. White
v. Hicks (1961), 118 Ohio App. 56, 57, 193 N.E.2d 193.
{¶19} A common pleas judge, in acting by authority of R.C. 2937.20, is acting
as an inquisitor in the inferior court, and his order there cannot be characterized as a
final order or judgment in the Court of Common Pleas. State v. Lindsey (1945), 77 Ohio
App. 191, 66 N.E.2d 256.
{¶20} “Appeals from the Municipal Court to the Court of Appeals are authorized
by Section 1901.30, Revised Code, and, under that section, are directed to be made in
accordance with Sections 2505.01 to 2505.39 (civil) and 2953.02 to 2953.14 (criminal),
Revised Code. These sections (2505.02) would authorize review, affirmance,
modification and reversal only if the orders have determined the action and prevented a
judgment or were orders affecting a substantial right in a special proceeding.
{¶21} “The order of disqualification of a judge of a court inferior to the Court of
Common Pleas, under Section 2937.20, Revised Code, is not a final order, does not
Fairfield County, Case No. 11-CA-14 6
prevent a judgment, and hence is not appealable.” Hicks, supra; see also In re Kimbler
(1988) 44 Ohio App.3d 9, 540 N.E.2d 756.
{¶22} Accordingly, this Court has no authority to render a decision with regard to
disqualification or to void a trial court’s judgment on the basis of personal bias or
prejudice on the part of the trial judge. See also, State v. Hunter, 151 Ohio App.3d 276,
783 N.E.2nd 991, 2002-Ohio-7326 (court of appeals has no authority to render a
decision with regard to disqualification of municipal court judge)
{¶23} Appellant’s second assignment of error is overruled.
{¶24} For the foregoing reasons, the judgment of the Fairfield County Municipal
Court is affirmed.
By: Delaney, J.
Gwin, P.J. and
Farmer, J. concur.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. SHEILA G. FARMER
[Cite as State v. Rhoads, 2011-Ohio-3023.]
IN THE COURT OF APPEALS FOR FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
JONATHAN D. RHOADS :
:
Defendant-Appellant : Case No. 11-CA-14
:
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Fairfield County Municipal Court is affirmed. Costs assessed to
Appellant.
_________________________________
HON. PATRICIA A. DELANEY
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. SHEILA G. FARMER