[Cite as State v. Andrews, 2015-Ohio-4638.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                        LAKE COUNTY, OHIO


STATE OF OHIO,                                   :       PER CURIAM OPINION

                 Plaintiff-Appellee,             :
                                                         CASE NO. 2015-L-042
        - vs -                                   :

JOHN MARK ANDREWS,                               :

                 Defendant-Appellant.            :


Criminal Appeal from the Painesville Municipal Court, Case No. 15 TRC 00487 A.

Judgment: Affirmed.


Joseph M. Gurley, Painesville City Law Director, 240 East Main Street, Painesville, OH
44077 (For Plaintiff-Appellee).

John Mark Andrews, Pro Se, 120 Court Street, Chardon, OH                44024 (Defendant-
Appellant).



PER CURIAM

        {¶1}     Defendant-appellant, John Mark Andrews, appeals from the judgment of

the Painesville Municipal Court, denying his Motion to Reinstate Defendant’s Driver’s

License. The issue to be determined by this court is whether a defendant can argue

that his license should be reinstated when he has failed to file an appeal from his

Administrative License Suspension within 30 days of his arraignment on an OVI charge.

For the following reasons, we affirm the decision of the trial court.
       {¶2}   On February 1, 2015, Andrews was issued a ticket, charging him with

Operating a Vehicle while Under the Influence (OVI), a misdemeanor of the first degree,

in violation of R.C. 4511.19(A)(1)(a); and a Divided Roadway violation, a minor

misdemeanor, in violation of R.C. 4511.35.

       {¶3}   A Report of Law Enforcement Officer Administrative License Suspension

(ALS) was completed by the officer and signed by Andrews.           It was filed in the

Painesville Municipal Court on February 3, 2015. While the writing on the carbon copy

of the form filed with the court is somewhat misaligned, it appears to indicate that

Andrews refused to submit to the test and was placed under an ALS.

       {¶4}   Andrews was arraigned and entered a plea of not guilty on February 5,

2015. On the same date, he was issued a letter for temporary limited driving privileges,

which included the right to drive for occupational purposes, as well as for medical and

school reasons.

       {¶5}   On March 11, 2015, Andrews filed a Motion to Reinstate Defendant’s

Driver’s License After 30 days of Arrest/Arraignment.      He contended that he was

wrongfully charged with OVI and that his license should not have been suspended

because he was not charged with an OVI Refusal offense under R.C. 4511.19(A)(2).

       {¶6}   Andrews’ Motion to Reinstate was denied on March 12, 2015, through a

Memorandum Entry. He filed the present appeal from that judgment on April 10, 2015.

       {¶7}   On March 24, 2015, Andrews was issued a second letter granting the

same driving privileges, set to expire April 14, 2015.




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       {¶8}   Andrews was granted additional driving privileges for the care of his wife

on April 14, 2015.     On April 14, and again on May 12, Andrews received letters

renewing his driving privileges.

       {¶9}   On appeal, Andrews raises the following assignments of error:

       {¶10} “[1.] Did the trial court abuse [its] discretion, create manifest injustice,

structurally erred, substantially erred (sic); prejudice this defendant-appellant and was

[its] decision contrary to, or involve a[n] unreasonable application of clearly established

federal law on the federal constitutional right to life, liberty, travel, freedom of

movement, and to engage/exercise his right to interstate travel and commerce protected

under the Privileges, Immunities and Comity Clause of Article I, Section 2, Clause 2;

Federal Supremacy Clause; and the 1st and 14th Amendments of the US Constitution

as determined by the U.S. Supreme Court.

       {¶11} “[2.] Can this indigent pro se defendant-appellant be legally extorted by

the state of Ohio, DMV, and trial/appellate court judges. Due to judicial ignorance of the

rule of law, and prosecution misconduct without obtaining mandatory OVI BAC test

results, in order, to unlawfully charge/prosecute/convict this indigent pro se defendant-

appellant without any mandatory BAC test results to unlawfully deprive him of his

federal constitutional right to life, liberty, travel, freedom of movement, and commerce

as protected under the US Constitution. (sic)”

       {¶12} In both of his assignments of error, Andrews raises arguments related to

the administrative suspension of his driver’s license which occurred following a charge

of OVI.




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       {¶13} “[A]n appeal of an ALS is a civil proceeding, and appellant bears the

burden of proving, by a preponderance of evidence, that the conditions for an ALS have

not been met.” (Citations omitted.) Eastlake v. Komes, 11th Dist. Lake No. 2009-L-096,

2010-Ohio-2411, ¶ 11.

       {¶14} In the present matter, Andrews’ driver’s license was suspended through

an ALS. Pursuant to R.C. 4511.191(A)(2), a person who operates a vehicle is deemed

to have given consent “to a chemical test or tests of the person’s whole blood, blood

serum or plasma, breath, or urine to determine the alcohol * * * content of the person’s

whole blood, blood serum or plasma, breath, or urine if arrested for a violation of

division (A) or (B) of section 4511.19 of the Revised Code.” These tests “shall be

administered at the request of a law enforcement officer having reasonable grounds to

believe the person was operating * * * a vehicle, * * * in violation of a division, section, or

ordinance identified in division (A)(2) of this section.” R.C. 4511.191(A)(3).

              Upon receipt of the sworn report of a law enforcement officer

              who arrested a person for a violation of division (A) or (B) of

              section 4511.19 of the Revised Code * * * that was completed

              and sent to the registrar of motor vehicles and a court pursuant

              to section 4511.192 of the Revised Code in regard to a person

              who refused to take the designated chemical test, the registrar

              shall enter into the registrar’s records the fact that the person’s

              driver’s * * * license * * * was suspended by the arresting officer

              * * *.




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R.C. 4511.191(B)(1).1

        {¶15} For an individual whose driver’s license is suspended under this statute,

unless certain conditions apply regarding prior OVI convictions or refusals, “the

suspension shall be a class C suspension for the period of time specified in division

(B)(3) of section 4510.02 of the Revised Code.” R.C. 4511.191(B)(1)(a). Pursuant to

R.C. 4510.02(B)(3), a class C suspension is for one year.

        {¶16} In the present appeal, Andrews argues that the trial court erred in failing to

reinstate his license. Although not clearly stated as such, he was requesting that the

court find the ALS invalid, since the court could not reinstate his license when an ALS

was in effect.

        {¶17} The correct procedure for seeking the termination of an allegedly improper

ALS is through an appeal. Pursuant to R.C. 4511.197, a person arrested for OVI in

violation of R.C. 4511.19(A) who has his license suspended under the foregoing

section, “may appeal the suspension at the person’s initial appearance on the charge

resulting from the arrest or within the period ending thirty days after the person’s initial

appearance on that charge, in the court in which the person will appear on that

charge.”2     The limited issues that may be raised on appeal are outlined in R.C.

4511.197(C)(1)-(4).

        {¶18} It appears that Andrews was attempting to invoke his right to appeal

through his Motion to Reinstate. The Motion was properly denied by the trial court,



1. Andrews appears to contend that, since he could not be charged with an OVI Refusal offense,
pursuant to R.C. 4511.19(A)(2), due to his lack of prior OVIs, he could not have his license suspended
based on a refusal. A reading of R.C. 4511.191 makes it evident, however, that a refusal and an arrest
for a violation of R.C. 4511.19(A)(1)(a), as occurred here, provide grounds for an ALS.
2. Similarly, a person seeking limited driving privileges under R.C. 4511.197(E) must file a petition “no
later than thirty days after the arrested person’s initial appearance or arraignment.”


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since it was untimely. “The time limits set forth under R.C. 4511.197(A) are obviously

jurisdictional in nature. If an administrative license suspension is not timely appealed,

the court has no jurisdiction to consider the appeal.”       Westlake v. Pesta, 8th Dist.

Cuyahoga No. 92150, 2009-Ohio-4713, ¶ 5; State v. Derov, 7th Dist. Mahoning No. 08

MA 189, 2009-Ohio-4810, ¶ 13-14.

       {¶19} Failure to file a petition for reinstatement within 30 days of the initial

appearance on the charge renders the appeal untimely. Westlake at ¶ 6; Columbus v.

Rose, 10th Dist. Franklin No. 06AP-579, 2007-Ohio-499, ¶ 6 (an ALS appeal is untimely

unless filed at or within thirty days of the initial appearance). Here, Andrews’ initial

appearance occurred during his February 5, 2015 arraignment but he did not file his

Motion to Reinstate until March 11, 2015. Since Andrews did not file a timely appeal,

the lower court did not have jurisdiction to rule upon its merits or to invalidate the ALS.

Thus, the request to reinstate his license was properly denied.

       {¶20} While Andrews outlines various rights he believes are violated by not

allowing him to drive, it was Andrews’ responsibility to file a timely appeal if he believed

his license was improperly suspended. Although Andrews argues that he is suffering

harm from “being unable to provide for his family, will [lose] his job/house, and will suffer

an actual significant financial hardship,” it is clear from the record that the trial court

granted Andrews driving privileges that extended throughout the time proceedings were

pending and he had such privileges at the time he filed this appeal. This allowed him to

drive for occupational purposes, as well as for medical and school reasons.

       {¶21} Other issues raised by Andrews, primarily in his second assignment of

error, relating to the merits of the OVI offense itself and the lack of proof as to the




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elements needed for a conviction, are properly raised in the proceedings relating to his

criminal charges, which are not presently before this court. See State v. McPhillamy,

6th Dist. Erie No. E-11-071, 2012-Ohio-3612, ¶ 8 (“[a]n ALS is a civil proceeding

separate from any criminal offense”); Eastlake, 2010-Ohio-2411, at ¶ 11.3

        {¶22} The same is true of the discovery issues raised by Andrews. These relate

to the criminal matter, not the license suspension.

        {¶23} The first and second assignments of error are without merit.

        {¶24} For the foregoing reasons, the judgment of the Painesville Municipal

Court, denying Andrews’ Motion to Reinstate Defendant’s Driver’s License, is affirmed.

Costs to be taxed against the appellant.


DIANE V. GRENDELL, J., CYNTHIA WESTCOTT RICE, J., THOMAS R. WRIGHT, J.,
concur.




3. While the issue of “[w]hether the arresting law enforcement officer had reasonable ground to believe
the arrested person was operating a vehicle * * * in violation of division (A) or (B) of section 4511.19 of the
Revised Code,” R.C. 4511.197(C)(1), can be raised in the appeal of an ALS suspension, Andrews cannot
raise this issue since he failed to file a timely appeal.


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