[Cite as State v. Dunn, 2013-Ohio-3490.]


                                       COURT OF APPEALS
                                      STARK COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                               :       JUDGES:
                                            :       Hon. Sheila G. Farmer, P.J.
        Plaintiff-Appellee                  :       Hon. Patricia A. Delaney, J.
                                            :       Hon. Craig R. Baldwin, J.
-vs-                                        :
                                            :
TERRANCE DUNN                               :       Case No. 2013CA00122
                                            :
        Defendant-Appellant                 :       OPINION




CHARACTER OF PROCEEDING:                            Appeal from the Canton Municipal
                                                    Court, Case No. 2013TRC01766



JUDGMENT:                                           Reversed and Remanded




DATE OF JUDGMENT:                                   August 12, 2013




APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

KATIE ERCHICK                                       ADAM W. WILGUS
218 Cleveland Avenue, SW                            401 Tuscarawas Street, West
P.O. Box 24218                                      Suite 200
Canton, OH 44701-4218                               Canton, OH 44702
Stark County, Case No. 2013CA00122                                                       2

Farmer, J.

       {¶1}   On March 29, 2013, appellant, Terrance Dunn, was charged with

operating a motor vehicle under the influence in violation of R.C. 4511.19. Because

appellant refused to take a breathalyzer test, he received a one year administrative

license suspension. On April 2, 2013, appellant appealed the suspension.

       {¶2}   A jury trial commenced on May 29, 2013, and appellant was found not

guilty. On June 10, 2013, appellant filed a motion to terminate his suspension and the

reinstatement fee for failure to hold an evidentiary hearing on his appeal. By judgment

entry filed June 11, 2013, the trial court denied the motion.

       {¶3}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignment of error is as follows:

                                             I

       {¶4}   "THE TRIAL COURT ERRED WHEN IT DENIED DEFENDANT-

APPELLANT'S       MOTION      TO    TERMINATE       THE    ADMINISTRATIVE        LICENSE

SUSPENSION."

                                             I

       {¶5}   Appellant claims the trial court erred in denying his motion to terminate his

administrative license suspension as it failed to hold an evidentiary hearing on his

appeal. We agree.

       {¶6}   R.C. 4511.197(A) provides for an appeal of an administrative license

suspension.    Subsection (C) sets forth a list of conditions for the imposition of an

administrative license suspension. Subsection (D) states the following:
Stark County, Case No. 2013CA00122                                                   3


             (D) A person who appeals a suspension under division (A) of this

      section has the burden of proving, by a preponderance of the evidence,

      that one or more of the conditions specified in division (C) of this section

      has not been met. If, during the appeal, the judge or magistrate of the

      court or the mayor of the mayor's court determines that all of those

      conditions have been met, the judge, magistrate, or mayor shall uphold

      the suspension, continue the suspension, and notify the registrar of motor

      vehicles of the decision on a form approved by the registrar.



      {¶7}   In State v. Norman, 5th Dist. Knox No. 2005CA00022, 2005-Ohio-5791, ¶

17, this court reversed a case for lack of evidentiary hearing on an administrative

license suspension appeal, stating the following:



             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.



      {¶8}   The state concedes the issue in its brief at 3.
Stark County, Case No. 2013CA00122                                                    4


      {¶9}   Upon review, we reverse the trial court's decision on appellant's motion to

terminate his administrative license suspension, and remand the matter for an

evidentiary hearing.

      {¶10} The sole assignment of error is granted.

      {¶11} The judgment of the Canton Municipal Court of Stark County, Ohio is

hereby reversed.

By Farmer, P.J.

Delaney, J. and

Baldwin, J. concur.




                                           _______________________________
                                           Hon. Sheila G. Farmer



                                           _______________________________
                                           Hon. Patricia A. Delaney



                                           _______________________________
                                           Hon. Craig R. Baldwin


SGF/sg 722
[Cite as State v. Dunn, 2013-Ohio-3490.]


                    IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                                 :
                                              :
        Plaintiff-Appellee                    :
                                              :
-vs-                                          :       JUDGMENT ENTRY
                                              :
TERRANCE DUNN                                 :
                                              :
        Defendant-Appellant                   :       CASE NO. 2013CA00122




        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Canton Municipal Court of Stark County, Ohio is reversed, and the

matter is remanded to said court for further proceedings consistent with this opinion.

Costs to appellee.




                                              _______________________________
                                              Hon. Sheila G. Farmer



                                              _______________________________
                                              Hon. Patricia A. Delaney



                                              _______________________________
                                              Hon. Craig R. Baldwin
