[Cite as State v. Miller, 2016-Ohio-1290.]



                                      IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                             CLERMONT COUNTY




STATE OF OHIO,                                      :
                                                          CASE NO. CA2015-10-079
        Plaintiff-Appellee,                         :
                                                                OPINION
                                                    :            3/28/2016
    - vs -
                                                    :

CHRISTIAN R. MILLER,                                :

        Defendant-Appellant.                        :



             CRIMINAL APPEAL FROM CLERMONT COUNTY MUNICIPAL COURT
                               Case No. 2015TRC11496



D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas Horton, 76 South
Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for plaintiff-appellee

Gary A. Rosenhoffer, 313 East Main Street, Batavia, Ohio 45103, for defendant-appellant



        S. POWELL, J.

        {¶ 1} Defendant-appellant, Christian R. Miller, appeals from the decision of the

Clermont County Municipal Court upholding his administrative license suspension imposed

after his arrest for operating a vehicle while under the influence of alcohol ("OVI"). For the

reasons outlined below, we dismiss this appeal as moot.

        {¶ 2} On August 2, 2015, Miller was arrested and charged with two counts of OVI in

violation of R.C. 4511.19(A)(1)(a) and R.C. 4511.19(A)(1)(H), both first-degree felonies, after
                                                                     Clermont CA2015-10-079

he was involved in a single-car accident. During this time, Miller exhibited an overwhelming

odor of alcoholic beverage on his person, red and bloodshot eyes, dry mouth, and extremely

slurred speech. Miller later submitted to a breath test indicating he had breath-alcohol-

content measuring .201. Due to his failed breath test, Miller was subject to a 90-day

administrative license suspension pursuant to R.C. 4511.191(C)(1)(a) and 4510.02(B)(5). In

accordance with R.C. 4511.197(A), Miller appealed from his suspension, which the trial court

denied after holding a hearing on the matter.         Miller's suspension was subsequently

terminated by operation of law on October 31, 2015.

       {¶ 3} On December 1, 2015, Miller was found guilty after entering a no contest plea

to OVI in violation of R.C. 4511.19(A)(1)(a), a statute that generally prohibits any person from

operating a vehicle while under the influence of alcohol. The trial court then sentenced Miller

to 180 days in jail, with 177 of those days suspended, placed him on three years of

community control, and ordered him to pay a $400 fine. The trial court also suspended

Miller's driver's license for 180 days, specifically noting that the suspension would be credited

"back to date of offense."

       {¶ 4} Miller now appeals from the trial court's decision to uphold his administrative

license suspension, raising the following three assignments of error for review.

       {¶ 5} Assignment of Error No. 1:

       {¶ 6} THE TRIAL COURT COMMITTED PREJUDICIAL ERROR OF FACT AND

LAW WHEN IT CONCLUDED THAT A VALID BREATH TEST RESULT COULD BE

OBTAINED FROM MILLER'S BREATH SAMPLE.

       {¶ 7} Assignment of Error No. 2:

       {¶ 8} THE TRIAL COURT COMMITTED PREJUDICIAL ERROR OF FACT AND

LAW WHEN IT FOUND THAT THE BMV 2255 MET EVERY ELEMENT OF THE STATE'S

BURDEN OF PROOF OF ALS COMPLIANCE SO AS TO SUSTAIN THE SUSPENSION.
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                                                                     Clermont CA2015-10-079

       {¶ 9} Assignment of Error No. 3:

       {¶ 10} THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT

REFUSED TO ADMIT RELEVANT AND ADMISSIBLE EVIDENCE.

       {¶ 11} In his three assignments of error, Miller argues the trial court erred by upholding

his administrative license suspension. However, as noted above, Miller was subject to a 90-

day suspension that terminated by operation of law on October 31, 2015. Moreover, even if

the suspension had not terminated by operation of law, pursuant to R.C. 4511.191(B)(2), an

administrative license suspension terminates when the defendant is convicted after entering

a plea of no contest, something we find Miller did on December 1, 2015. Therefore, because

Miller's arguments all relate to the trial court's decision to uphold his now terminated

administrative license suspension, there is no relief that we can provide, thereby rendering

this appeal moot. See Columbus v. Zimmerman, 10th Dist. Nos. 14AP-963 and 14AP-964,

2015-Ohio-3488, ¶ 11 (challenge to administrative license suspension was moot where

appellant entered a no contest plea to the OVI offense); City of Lakewood v. Snider, 8th Dist.

Cuyahoga No. 74935, 2000 WL 1739229, *2 (Nov. 22, 2000) (challenge to an administrative

license suspension was moot where appellate court could not provide any relief since

suspension had terminated); see also State v. Book, 5th Dist. Delaware No. 95-CAC-03-012,

1996 WL 753137, *2 (challenge to an administrative license suspension was moot where trial

court "made the license suspension imposed on conviction retroactive to the date of

appellant's arrest, effectively negating the administrative license suspension").

       {¶ 12} In so holding, we note that Miller withdrew his motion to suppress his breath

test result prior to entering his no contest plea. Unlike an appeal from an administrative

license suspension that is used "to determine whether an alleged offender's operator's

license should be reinstated," the purpose of a motion to suppress is to determine whether

certain evidence will be admissible at trial. State v. Roberts, 4th Dist. Ross No. 93 CA 2020,
                                              -3-
                                                                     Clermont CA2015-10-079

1995 WL 271729, *3 (May 4, 1995). A motion to suppress is the proper pretrial procedure for

challenging a breath test result. State v. Edwards, 107 Ohio St.3d 169, 2005-Ohio-6180, ¶

11, citing Defiance v. Kretz, 60 Ohio St.3d 1 (1991), syllabus. Therefore, as this court has

stated previously, "[a] challenge to the results of a breath-alcohol test on the basis of failure

to comply with Ohio Department of Health regulations should be brought as a motion to

suppress." State v. Needham, 12th Dist. Butler No. CA91-11-184, 1992 WL 185686, *2

(Aug. 3, 1992).

       {¶ 13} Appeal dismissed.


       M. POWELL, P.J., and PIPER, J., concur.




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