[Cite as State v. Brown, 2013-Ohio-4981.]



                                     IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                            CLERMONT COUNTY




STATE OF OHIO,                                     :

        Plaintiff-Appellee,                        :     CASE NO. CA2013-04-029

                                                   :           OPINION
   - vs -                                                      11/12/2013
                                                   :

COLIN BROWN,                                       :

        Defendant-Appellant.                       :



            CRIMINAL APPEAL FROM CLERMONT COUNTY MUNICIPAL COURT
                               Case No. 13TRC738



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

Joseph B. Suhre IV, 1014 Vine Street, Suite 2525, Cincinnati, Ohio 45202, for defendant-
appellant



        HENDRICKSON, P.J.

        {¶ 1} Defendant-appellant, Colin Brown, appeals the judgment of the Clermont

County Municipal Court denying his appeal of an administrative license suspension imposed

after his arrest for operating a motor vehicle while under the influence of alcohol. For the

reasons stated below, we reverse the decision of the trial court.

        {¶ 2} On January 11, 2013, appellant was arrested for operating a vehicle while
                                                                   Clermont CA2013-04-029

under the influence of alcohol or a drug of abuse. Appellant was transferred to a police

station where he submitted to a breath test. The result of the test indicated that appellant

had a blood alcohol level of 0.000. Appellant then agreed to submit to a urine test. Appellant

drank several glasses of water, attempted to provide a urine specimen four or five times, but

did not produce a sample.       Appellant's license was then seized and administratively

suspended for a refusal to submit to a chemical test.

       {¶ 3} Appellant appealed the administrative suspension to the Clermont County

Municipal Court. At the hearing on the appeal, appellant's sole witness, Officer Davila,

testified that he arrested appellant and administered the breath and urine tests. Officer

Davila agreed that it appeared appellant "was not refusing the urine specimen" but "simply

could not provide it." He stated that appellant "consumed quite a bit of water * * * I don't

know how he couldn't. I mean, it was very apparent to me that he was trying but just could

not produce." Subsequently, the municipal court denied appellant's appeal. The court

reasoned that appellant did not meet his burden of proof to show he did not refuse the test.

The court stated that because appellant did not testify, he failed to show why he could not

produce a sample.

       {¶ 4} Appellant now appeals, raising a sole assignment of error:

       {¶ 5} THE TRIAL COURT ERRED IN OVERRULING APPELLANT'S APPEAL OF

THE IMPROPERLY IMPOSED ADMINISTRATIVE LICENSE SUSPENSION.

       {¶ 6} Appellant argues the court erred when it affirmed the administrative suspension

of his driver's license. Specifically, he challenges the court's application of a subjective

standard instead of an objective standard to determine whether he "refused" to take the

chemical test.    Appellant asserts the evidence presented at trial established that a

reasonable person in the position of the requesting officer would believe that appellant did

not "refuse" the test but instead was unable to complete it. Therefore, the continuation of the
                                              -2-
                                                                     Clermont CA2013-04-029

license suspension was in error.

       {¶ 7} Our review of a trial court's continuation of an administrative license suspension

is under a manifest-weight-of-the-evidence standard. State v. Rhoads, 5th Dist. Fairfield No.

11-CA-14, 2011-Ohio-3023, ¶ 10. An appellate court weighs the evidence and all reasonable

inferences, considers the credibility of witnesses, and determines whether in resolving

conflicts in the evidence, the finder of fact "clearly lost its way and created such a manifest

miscarriage of justice that the [judgment] must be reversed and a new trial ordered." Eastley

v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 20.

       {¶ 8} If a person under arrest for operating a vehicle while intoxicated or impaired

refuses to submit to a chemical test, the arresting officer, acting on behalf of the Registrar of

Motor Vehicles, must seize the operator's license and immediately administratively suspend

the driver's operating privileges.     R.C. 4511.192(D)(1).      An operator may appeal the

administrative suspension of his or her driver's license to the court having jurisdiction over the

charge. R.C. 4511.197(B). The scope of this appeal is limited to determining whether one or

more certain conditions, such as refusal, were not met. Id. at (C). On appeal, the licensee

has the burden of showing that one of these conditions was not satisfied by a preponderance

of the evidence. R.C. 4511.197(D); State v. Huffman, 6th Dist. Wood No. WD-05-007, 2005-

Ohio-6005, ¶ 8.

       {¶ 9} "[A] refusal to submit to a chemical test of the blood, breath or urine will occur

where a person, by his acts, words or general conduct, manifests an unwillingness to submit

to the test." Hoban v. Rice, 25 Ohio St.2d 111 (1971), paragraph three of the syllabus. In

establishing that he did not refuse to submit to a chemical test, a licensee may present

evidence that he was physically incapable of completing the test. Andrews v. Turner, 52

Ohio St.2d 31 (1977), paragraph three of the syllabus. "It is not a refusal if a person is

unable to perform the requested act." State v. Williams, 6th Dist. Ottawa No. OT-03-020,
                                               -3-
                                                                    Clermont CA2013-04-029

2004-Ohio-2453, ¶ 12, quoting Hoffer-Hodge v. Caltridge, 2d Dist. Montgomery No. 17162,

1998 WL 906479 (Dec. 31, 1998). See Andrews at fn. 6.

       {¶ 10} Whether or not a driver refused a test is a factual determination that is to be

made by the trial court based upon all of the evidence before it. State v. Owen, 12th Dist.

Warren No. CA97-12-229, 1998 WL 729204, *5 (Oct. 19, 1998). A person's refusal to submit

to a chemical test occurs whenever a preponderance of the evidence demonstrates that such

person's conduct provides justification for a reasonable requesting officer to believe that the

person was capable of refusing the test and displayed an unwillingness to submit to the test.

Andrews at paragraph one of the syllabus.

       {¶ 11} A trial court's determination of a refusal must "be based upon an objective

standard, not a subjective standard." Hoban v. Rice, 25 Ohio St.2d 111, 117 (1971). "The

subjective state of mind of the licensee cannot control the outcome of the proceedings, and a

police officer is not required to know the state of mind of the person arrested * * *." Id.

       {¶ 12} The trial court's decision that appellant refused to submit to the urine test was

against the manifest weight of the evidence. The only evidence submitted at the hearing was

the testimony of Officer Davila who specifically stated appellant did not refuse to submit to

the test but instead was unable to provide a specimen. Officer Davila testified that appellant

agreed to take the urine test, attempted to provide a sample several times, and drank

multiple glasses of water. Additionally, appellant cooperated with the officer's request for a

breath test. It is apparent that appellant's acts, words, and general conduct did not manifest

an unwillingness to submit to the test. The evidence showed that appellant did not refuse the

test but instead was physically incapable of completing the test.

       {¶ 13} In affirming the license suspension, the trial court stated that appellant did not

meet his burden of proof to show that he did not refuse the test because he failed to testify.

The court reasoned that urination is controlled internally and Officer Davila cannot testify
                                              -4-
                                                                    Clermont CA2013-04-029

about appellant's internal functions. However, a trial court's determination of refusal is based

on an objective standard and not a subjective one. Therefore, the fact that appellant did not

testify to explain why he did not urinate was not determinative of the proceedings. Instead,

the court should look to whether the preponderance of the evidence demonstrated that a

reasonable requesting officer would believe that appellant did not display an unwillingness to

submit to the test. In this case, the evidence demonstrated that appellant was not unwilling

to submit to the test.

       {¶ 14} Appellant's sole assignment of error is sustained.

       {¶ 15} The trial court's judgment is reversed and appellant's administrative license

suspension is hereby vacated.


       S. POWELL and RINGLAND, JJ., concur.




                                              -5-
