[Cite as State v. McKenzie, 2017-Ohio-9138.]


STATE OF OHIO                    )                  IN THE COURT OF APPEALS
                                 )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

STATE OF OHIO                                       C.A. No.      28716

        Appellant

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
BRANDON S. MCKENZIE                                 AKRON MUNICIPAL COURT
                                                    COUNTY OF SUMMIT, OHIO
        Appellee                                    CASE No.   17 TRC 04945

                                 DECISION AND JOURNAL ENTRY

Dated: December 20, 2017



        CALLAHAN, Judge.

        {¶1}    Appellant, State of Ohio, appeals from the judgment entered by the Akron

Municipal Court, which granted Brandon McKenzie’s motion to vacate his administrative license

suspension (“ALS”). This Court reverses and remands.

                                               I.

        {¶2}    Mr. McKenzie was arrested for two counts of operating a vehicle under the

influence of alcohol or drugs (“OVI”) and other offenses that are not relevant to this appeal.

Because he refused to submit to chemical testing, Mr. McKenzie was issued an administrative

license suspension. An ALS appeal hearing was never held. After a jury found Mr. McKenzie

not guilty of the two OVI offenses, he filed a motion to vacate the ALS. The trial court granted

the motion on June 14, 2017, which was the same day the motion was filed.            The State

subsequently filed a response, which the trial court found moot. The State now appeals, raising

three assignments of error.
                                                  2


                                                 II.

                               ASSIGNMENT OF ERROR ONE

       THE TRIAL COURT’S ORDER VACATING MR. MCKENZIE’S ALS WAS
       VOID BECAUSE THE TRIAL COURT LACKED JURISDICTION OVER HIS
       ALS DUE TO HIS FAILURE TO APPEAL THE ALS.

       {¶3}    In its first assignment of error, the State argues that, because Mr. McKenzie did

not file a timely appeal of his ALS, the trial court lacked jurisdiction to rule on his motion and

the order vacating the ALS is void. This Court disagrees.

       {¶4}    Initially, we note that Mr. McKenzie has failed to file an appellate brief in this

appeal. Thus, “[p]ursuant to App.R. 18(C), this Court may accept the [State’s] statement of the

facts and issues as presented in [its] brief as correct and reverse the judgment of the trial court if

[the State’s] brief reasonably appears to sustain such action.” Bank of New York v. Smith, 9th

Dist. Summit No. 21534, 2003-Ohio-4633, ¶ 2.

       {¶5}    “Challenges to a trial court’s jurisdiction present questions of law and are

reviewed by this Court de novo.” (Citations and quotations omitted). Wells Fargo Bank, NA v.

Vasquez, 9th Dist. Medina No. 13CA0086-M, 2015-Ohio-717, ¶ 16.

       {¶6}    “Pursuant to R.C. 4511.191(B), the Bureau of Motor Vehicles [] imposes a

suspension upon a person who is arrested for OVI and who refuses to take the chemical test or

who tests above the prohibited alcohol level.” State v. Hollaender, 9th Dist. Wayne Nos.

12CA0040, 13CA0006, 2014-Ohio-1782, ¶ 14. However, this ALS may be appealed.

       {¶7}    R.C. 4511.197(A) provides that a person may appeal from an ALS “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.”
                                                 3


       {¶8}    While the record does not contain a written motion by Mr. McKenzie appealing

his ALS, it does contain the March 30, 2017 judgment entry titled “Appeal of Administrative

License Suspension” in which the court indicated that Mr. McKenzie “appeared for initial

appearance within the 30 day period provided by R[.]C[.] 4511.197 and [] moved that the court

continue with the appeal,” and that “[t]he court finds that the motion [i]s well taken.” The entry

further provided that “[t]he suspension of the defendant’s driving privileges continues in force

pending further hearing by the court.” The record does not reflect that an appeal hearing was

ever held.

       {¶9}    This Court has previously held that a licensee/defendant may appeal an ALS by

oral motion. See Grafton v. Huffman, 9th Dist. Lorain No. 01CA007876, 2001 Ohio App. LEXIS

4954, *3 (Nov. 7, 2001). The State has not addressed whether this Court’s finding on that issue

remains viable in light of the current statute. See State v. Bennett, 5th Dist. Licking No. 09-CA-

35, 2009-Ohio-4898, ¶ 19-20 (holding that an oral motion does not comply with R.C. 4511.197,

which requires a written request for an ALS appeal to be “file[d]”).

       {¶10} The State has not provided this Court with a transcript of the proceedings or a

statement of the proceedings pursuant to App.R. 9(C) or (D), from Mr. McKenzie’s initial

appearance. Because, implicit in the language of the trial court’s March 30, 2017 journal entry is

that Mr. McKenzie did appeal his ALS, and without evidence to the contrary from Mr.

McKenzie’s initial appearance, this Court must presume that the record is correct, i.e., that Mr.

McKenzie appealed his ALS. See Huffman at *3-4.

       {¶11} Therefore, the trial court did not lack jurisdiction over Mr. McKenzie’s ALS

appeal. The State’s first assignment of error is overruled.
                                                 4


                              ASSIGNMENT OF ERROR TWO

       THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT
       VACATED MR. MCKENZIE’S ALS ON AN IMPERMISSIBLE BASIS.

       {¶12} In its second assignment of error, the State argues that the trial court erred in

granting Mr. McKenzie’s motion to vacate his ALS on the basis that he had been found not

guilty of the related OVI charges. This Court agrees.

       {¶13} This Court reviews legal issues de novo. See Plazzo v. Nationwide Mut. Ins. Co.,

9th Dist. Summit No. 15370, 1992 Ohio App. LEXIS 3297, *3 (June 24, 1992).

       {¶14} R.C. 4511.191(D)(1) addresses an ALS “for the time described in division (B)”

and provides that “[a]ny subsequent finding that the person is not guilty of the charge that

resulted in the person being requested to take the chemical test or tests under division (A) of this

section does not affect the suspension.”

       {¶15} R.C. 4511.197(D) addresses “[a] person who appeals” an ALS and provides that:

        [i]f the suspension was imposed under division (B)(1) of section 4511.191 of the
       Revised Code and it is continued under this section, any subsequent finding that
       the person is not guilty of the charge that resulted in the person being requested to
       take the chemical test or tests under division (A) of section 4511.191 of the
       Revised Code does not terminate or otherwise affect the suspension.

       {¶16} R.C. 4511.191(B)(1) provides, in pertinent part:

       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 or commercial driver’s
       license or permit or nonresident operating privilege was suspended * * * .

       {¶17} Mr. McKenzie was cited for OVI, in violation of R.C. 4511.19(A)(1)(a) and OVI

refusal, in violation of R.C. 4511.19(A)(2). The record contains the completed court’s copy of

the requisite Form 2255 indicating Mr. McKenzie’s refusal to take chemical tests (breath or
                                                5


urine), as required by R.C. 4511.191(A). As a consequence, Mr. McKenzie’s driver’s license

was suspended pursuant to R.C. 4511.191(B)(1).        The trial court continued Mr. McKenzie’s

ALS at his initial appearance, but no appeal hearing was ever held.

       {¶18} Therefore, in accordance with both R.C. 4511.191(D)(1) and R.C. 4511.197(D),

the finding of not guilty on the OVI offenses did not affect Mr. McKenzie’s suspension.

       {¶19} Further, the trial court’s reliance on the fact that it “made no finding that a breath

test was refused, and there was no breath test submitted more than .08” was also misplaced as

those issues fell within the scope of R.C. 4511.197(C)(4)(a) and (b) and could only have been

addressed during an ALS appeal hearing.

       {¶20} In accordance with the clear language of R.C. 4511.191(D)(1) and R.C.

4511.197(D), Mr. McKenzie’s acquittal on the OVI offenses did not terminate or otherwise

affect his suspension. The trial court erred, as a matter of law, by vacating Mr. McKenzie’s

ALS. The State’s second assignment of error is sustained.

                            ASSIGNMENT OF ERROR THREE

       THE TRIAL COURT ERRED IN GRANTING MR. MCKENZIE’S MOTION
       WITHOUT PERMITTING THE STATE AN OPPORTUNITY TO RESPOND.

       {¶21} Based on this Court’s resolution of the State’s second assignment of error, its

third assignment of error is moot and will not be addressed. See App.R. 12(A)(1)(c).

                                               III.

       {¶22} The State’s second assignment of error is sustained. Its first assignment of error

is overruled and its third assignment of error is moot. This Court reverses the decision of the

Akron Municipal Court and remands this matter with instructions that the trial court vacate its

June 14, 2017 entry and reinstate the ALS.
                                                 6


                                                                               Judgment reversed
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Akron Municipal

Court, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                     LYNNE S. CALLAHAN
                                                     FOR THE COURT



SCHAFER, P. J.
TEODOSIO, J.
CONCUR.


APPEARANCES:

EVE V. BELFANCE, Director of Law, GERTRUDE E. WILMS, Chief Prosecutor, and BRIAN
D. BREMER, Assistant Director of Law, for Appellant.

ELI HELLER, Attorney at Law, for Appellee.
