[Cite as State v. Mancini, 2020-Ohio-990.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                    TRUMBULL COUNTY, OHIO


STATE OF OHIO,                                   :        OPINION

                 Plaintiff-Appellee,             :
                                                          CASE NOS. 2019-T-0045
        - vs -                                   :                  2019-T-0046

DARREN E. MANCINI,                               :

                 Defendant-Appellant.            :


Criminal Appeals from the Warren Municipal Court.
Case Nos. 2019 TRC 000477 & 2019 CRB 000263.

Judgment: Reversed and remanded.


Gregory Hicks, Warren City Law Director, 391 Mahoning Avenue, N.W., Warren, OH
44483 (For Plaintiff-Appellee).

Michael McGee, Harrington, Hoppe & Mitchell, Ltd., 108 Main Avenue, S.W., Suite
500, Warren, OH 44481 (For Defendant-Appellant).



TIMOTHY P. CANNON, P.J.

        {¶1}     Appellant, Darren E. Mancini (“Mancini”), appeals a judgment in the

Warren Municipal Court refusing to entertain his appeal of the Administrative License

Suspension (“ALS”) imposed as a result of an alleged refusal to submit to a urine test

with regard to a charge of driving under the influence. We reverse the trial court’s

judgment.

        {¶2}     The facts relevant to the imposition of the ALS are as follows:
        {¶3}   Mancini was pulled over on February 4, 2019, by State Highway Trooper

Matthew Soeder. Mancini was charged with obstructing official business in case No.

2019 CRB 000263; as well as (1) driving under the influence and (2) a tail light offense

under R.C. § 4513.05 in case No. 2019 TRC 000477. Because he is alleged to have

refused a urine test, an ALS was imposed with regard to Mancini’s driver’s license.

        {¶4}   On February 6, 2019, Mancini appealed the ALS following his

arraignment. He claimed as cause for the appeal that he did not refuse to take a urine

test and therefore should not have been subjected to an ALS. On February 11, 2019,

Mancini filed a motion for an expedited ALS hearing, which was set for February 26,

2019.

        {¶5}   According to the record, a pretrial was held on February 26, 2019 where

the trial court stayed the ALS and dismissed a “motion to quash the ALS” without

prejudice. The record does not reflect whether any substantive hearing was held on the

validity of imposing the ALS. Mancini claims on appeal to this court that he was not

afforded an opportunity at the February 26, 2019 hearing to present evidence in support

of terminating the ALS.

        {¶6}   On April 26, 2019, Mancini filed a motion to compel discovery and a

motion to dismiss the criminal charges against him. The motion asserted the State had

failed to provide the following discovery under Crim.R. 16 despite several demands:

               1. Handwritten statement by Trooper Soeder’s supervisor and/or
               sergeant on the date of the incident signed by the defendant,
               wherein Mr. Mancini advised the supervisor that he did not refuse
               the urine test;

               2. Photographs taken of the defendant’s wrists with marks,
               swelling, and/or bruising from the Trooper’s handcuffs;




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             3. All video and audio recordings from the State Highway Patrol
             Barracks and/or Police Station where the conversations concerning
             the urine test took place;

             4. The names of all Troopers on duty at the State Highway Patrol
             Barracks/Police Station on the night of the incident;

             5. Copy of all internal reports, memoranda, notes, and other
             writings of the Ohio State Highway Patrol for internal use, regarding
             Darren Mancini and the incident which took place on February 3
             and February 4, 2019.

      {¶7}   On June 7, 2019, the trial court dismissed all three criminal charges

against Mancini as a sanction against the State after finding that “the state has failed to

comply with its previously issued discovery order.” On July 9, 2019, a final pretrial was

held. At that time, counsel for Mancini reiterated his request for an evidentiary hearing

on the ALS. After the trial court dismissed the criminal charges, the following exchange

occurred regarding the ALS:

             [Counsel for Mancini]: Your Honor, the automatic [sic throughout]
             license suspension in this case, ah, was started as part of the DVI
             [sic]. We filed an appeal of the ALS, and it was stayed. We haven’t
             had a hearing on the ALS, whether it’s terminated or impose it, um,
             and we would ask the Court—we move the Court to terminate the
             automatic license suspension, at this time. The DUI’s been
             dismissed, the obstructing has been dismissed; everything’s been
             dismissed, in all the criminal charges, relating to this incident. * * *
             So, um, at this time, Your Honor, because all the criminal charges
             have been dismissed, we request that the Court terminate the
             automatic license suspension. Thank you.

             [The Court]: Okay. This was a refusal case; correct?

             [Counsel for Mancini]: It’s an alleged refusal, Your Honor. My
             client wishes to have the opportunity to testify that he did not, in
             fact, refuse and stated that he would take the test, at an ALS
             hearing.

             [The Court]: Well, I understand where you’re coming from. This is
             an administrative action that was undertaken without any authority
             of Court. It’s a provision that’s built into Ohio law, for better or for



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              worse. It’s what the legislator has done. When I dismiss a case, I
              will not entertain that motion. The case is dismissed; the ALS
              stands every license[d] driver in the State of Ohio, when they sign
              for their license, signs for a consent that upon demand they shall
              take that test. That’s outside the court arena, and the suspension
              was outside the court arena, the case has been dismissed, and I’m
              not going to grant it.

       {¶8}   Mancini filed timely notices of appeal to this court and raises two

assignments of error.       This court granted Mancini’s motion to consolidate Eleventh

District Court of Appeals Case Numbers 2019-T-0045 (2019 TRC 000477) and 2019-T-

0046 (2019 CRB 000263) for all purposes.          Additionally, the State did not file an

appellate brief in this case.

       {¶9}   Mancini’s first assignment of error states:

              The Trial Court erred when it failed to afford Defendant-Appellant
              with a hearing on the Automatic [sic] License Suspension within five
              days of the date of the arrest.

       {¶10} Appeal of an ALS is provided by statute under R.C. 4511.197(A), which

states in pertinent part:

              If a person is arrested for operating a vehicle * * * in violation of
              division (A) or (B) of section 4511.19 of the Revised Code * * * and
              if the person’s driver’s or commercial driver’s license or permit or
              nonresident operating privilege is suspended under sections
              4511.191 and 4511.192 of the Revised Code, the person 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.

       {¶11} Regarding statutory interpretation, we have previously stated:

              “This court reviews a trial court’s interpretation and application of a
              statute under a de novo standard of appellate review.” State v.
              Phillips, 11th Dist. Trumbull No. 2008-T-0036, 2008-Ohio-6562, ¶11
              (citations omitted). “Statutory interpretation involves a question of
              law; therefore, we do not give deference to the trial court’s
              determination.” Id. The cornerstone of statutory interpretation is



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              legislative intention. State ex rel. Francis v. Sours, 143 Ohio St.
              120, 124 (1944). In order to determine legislative intent, it is a
              cardinal rule of statutory construction that a court must first look to
              the language of the statute itself. Provident Bank v. Wood, 36 Ohio
              St.2d 101 (1973). “If the meaning of the statute is unambiguous
              and definite, it must be applied as written and no further
              interpretation is necessary.” State ex rel. Savarese v. Buckeye
              Local School Dist. Bd. of Edn., 74 Ohio St.3d 543, 545 (1996). A
              court may interpret a statute only where the words of the statute are
              ambiguous. State ex rel. Celebrezze v. Allen Cty. Bd. of Commrs.,
              32 Ohio St.3d 24, 27 (1987).

State v. Owen, 11th Dist. Lake No. 2012-L-102, 2013-Ohio-2824, ¶17.

       {¶12} “Ohio courts have invariably considered errors in the initial imposition or

review of an ALS as potential due process violations[.]” Toledo v. Levi, 6th Dist. Lucas

No. L-12-1003, 2013-Ohio-52, ¶8, citing State v. Gibson, 144 Ohio Misc.2d 18, 2007-

Ohio-6069 (failure to provide timely post-deprivation hearing deprives defendant of due

process as related to the ALS); and State ex rel. Igoe v. Grogan, 8th Dist. Cuyahoga

No. 73383, 1997 WL 781798, *2 (Dec. 18, 1997) (“Clearly, the relator possesses a right

to an ALS review hearing and the respondent possesses a legal duty to provide such an

ALS review hearing”); see also State v. Katz, 5th Dist. Delaware No. 09CAC030028,

2009-Ohio-5803, ¶25 (“Implicit in the statute is the right to an evidentiary hearing.”).

       {¶13} In Katz, the Fifth Appellate District found as follows:

              ‘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. We find inherent in an
              ALS appeal is an opportunity for an individual to be heard. The
              statute expressly places the burden of proof of a preponderance of
              the evidence on the person appealing the ALS. Here the appellant
              was denied both.’




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Katz, supra, at ¶ 22 (emphasis sic), quoting State v. Norman, 5th Dist. Knox No.

2005CA00022, 2005-Ohio-5791, ¶17. That court went on to state that “the lack of any

mention 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. at ¶26.

       {¶14} We agree with the Fifth Appellate District that implicit in the statute is the

right to an evidentiary hearing. As was the case in Katz, the State has not responded

with a brief contradicting this conclusion.

       {¶15} The trial court set a hearing on Mancini’s ALS appeal for February 26,

2019. At that hearing, the trial court stayed the ALS. The record does not indicate a full

evidentiary hearing regarding the ALS appeal was held on that date from which the

court could make a factual determination as to whether all conditions under R.C.

4511.197(C) were satisfied. Appellant has consistently maintained that he did not, in

fact, refuse to take the test. The failure of the trial court to allow a hearing on that issue

was error.

       {¶16} Mancini’s first assignment of error has merit.

       {¶17} Mancini’s second assignment of error states:

              The trial court erred when it failed to dismiss and/or cancel the ALS
              due to the fact that Defendant-Appellant never refused a chemical
              test.

       {¶18} “[W]hen a defendant is acquitted of the underlying criminal complaint, the

ALS for refusal to take the test does not terminate. A defendant would then have the

opportunity to appeal the suspension. R.C. 4511.197(D).” State v. Downs, 11th Dist.

Ashtabula No. 2004-A-0029, 2005-Ohio-2520, ¶5, fn. 1. “‘[A]n appeal of an ALS is a

civil proceeding, and appellant bears the burden of proving, by a preponderance of




                                              6
evidence, that the conditions for an ALS have not been met.’” Eastlake v. Komes, 11th

Dist. Lake No. 2009-L-096, 2010-Ohio-2411, ¶11, quoting State v. Williams, 11th Dist.

Portage No. 2001-P-0112, 2002-Ohio-6920, ¶10, citing R.C. 4511.191(H)(2) [now R.C.

4511.197(D)].

       {¶19} “‘When a person appeals an ALS before the trial court, the scope of that

appeal is limited to:

              ‘(1) whether the officer had reasonable grounds to believe that the
              defendant was driving under the influence of alcohol or with a
              prohibited concentration of alcohol in the blood, breath, or urine;

              ‘(2) whether defendant was placed under arrest;

              ‘(3) whether the officer requested the defendant to submit to a
              chemical test;

              ‘(4) whether the officer informed the defendant of the
              consequences of either refusing the test or of submitting to it; and

              ‘(5) whether the defendant refused to submit to the test or failed it.’

Id. at ¶16-17, quoting Williams, supra, at ¶9 and R.C. 4511.197(C).

       {¶20} “The defendant bears the burden of proving, by a preponderance of the

evidence, that a condition was not satisfied and that his suspension should be

terminated. This is a factual determination and, therefore, unless there is no competent

or credible evidence to support the trial court’s judgment, we must affirm its decision.”

State v. Haghighi, 11th Dist. Portage No. 96-P-0012, 1996 WL 535243, *2 (Aug. 30,

1996), citing R.C. 4511.191(H)(2) [now R.C. 4511.197 (D)] and Andrews v. Turner, 52

Ohio St.2d 31, 38 (1977).

       {¶21} Because the trial court failed to hold a hearing on the ALS appeal, no

factual determination was made as to whether Mancini refused to take a urine test.




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Therefore, this court cannot determine from the record, before an evidentiary hearing is

conducted, whether the ALS should have been terminated.

         {¶22} At this time, it would be premature to determine whether the trial court

erred in failing to dismiss the ALS. Mancini’s second assignment of error is without

merit.

         {¶23} The judgment of the Warren Municipal Court is reversed, and the matter is

remanded for a hearing in accordance with R.C. 4511.197.



MATT LYNCH, J.,

MARY JANE TRAPP, J.,

concur.




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