[Cite as State v. Holbrook, 2016-Ohio-5302.]


                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                                     JUDGES:
                                                  Hon. Sheila G. Farmer, P. J.
        Plaintiff-Appellee                        Hon. William B. Hoffman, J.
                                                  Hon. John W. Wise, J.
-vs-
                                                  Case No. 16 CA 0029
BRYAN HOLBROOK

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Municipal Court,
                                               Case No. 16 TRC 2369


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                        August 9, 2016



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

DOUGLAS SASSEN                                 SAMUEL H. SHAMANSKY
LAW DIRECTOR                                   DONALD L. REGENSBURGER
TRICIA M. MOORE                                COLLIN E. PETERS
ASSISTANT LAW DIRECTOR                         525 South Third Street
40 West Main Street                            Columbus, Ohio 43215
Newark, Ohio 43055
Licking County, Case No. 16 CA 0029                                                         2

Wise, J.

       {¶1} Defendant-Appellant Bryan Holbrook appeals the decision of the Licking

County Municipal Court denying his ALS appeal and motion to terminate the ALS.

       {¶2} Appellee is the State of Ohio.

       {¶3} Initially, we note, this case has been assigned to the Court's accelerated

calendar docket according to Ohio Appellate Rule 11 and this Court's Local Rule 6(B);

therefore, pursuant to Ohio App. Rule 11 governing accelerated calendar cases, “It shall

be sufficient compliance with Appellate Rule 12(A) for the statement of the reason for the

court's decision as to each error to be in brief conclusionary form.”

                        STATEMENT OF THE CASE AND FACTS

       {¶4} The following undisputed facts are drawn from the testimony of Trooper J.D.

Myers of the Ohio State Highway Patrol during Appellant’s Administrative License

Suspension (ALS) hearing.

       {¶5} On March 20, 2016, Trooper Myers used a radar device to determine that a

vehicle driven by Appellant was exceeding the speed limit by eleven miles per hour. (Tr.

14). He also observed the vehicle drift within its lane and cross the center line. Id. Trooper

Myers initiated a traffic stop and approached the vehicle, at which time he detected a

strong odor of alcohol and noticed that Appellant had glassy, bloodshot eyes. (Tr. 15-16).

Appellant provided his identification and admitted to consuming three beers that night.

(Tr. 16).

       {¶6} At Trooper Myers' request, Appellant exited his vehicle and submitted to the

horizontal gaze nystagmus test. Id. Trooper Myers detected six clues, and Appellant

refused to perform the walk and turn test. (Tr. 16-17). Appellant attempted an alphabet
Licking County, Case No. 16 CA 0029                                                       3


test, which he did not complete, and a counting test, which he finished but counted

backward to the wrong number. (Tr. 17). Trooper Myers placed Appellant under arrest

and read him the advice contained on the BMV 2255. (Tr. 18).

       {¶7} Appellant refused to submit to a chemical breath test, and Trooper Myers

advised that his driver's license was being placed under suspension. (Tr. 20).

       {¶8} As a result of the above, Appellant Bryan Holbrook was charged by Complaint

with one count of OVI in violation of R.C. §4511.19(A)(1)(a), a misdemeanor of the first

degree, and one count of Speed in violation of R.C. 4511.21, a minor misdemeanor. As

a result of his refusal to submit to a chemical breath test, Appellant was also placed under

an Administrative License Suspension ("ALS"). A copy of the Bureau of Motor Vehicles

("BMV") form 2255 was filed with the Court on March 21, 2016.

       {¶9} On March 22, 2016, Appellant entered a plea of not guilty, demanded a jury

trial, and appealed the ALS. Appellant also filed a Bench Memorandum setting forth

grounds for termination of the ALS.

       {¶10} On April 8, 2016, an evidentiary hearing was held on the ALS suspension.

At said hearing, Trooper Myers testified that he filled out the entire 2255 before providing

the bottom carbon copy to Appellant. (Tr. 6-7). A photocopy of this document, which was

admitted as Defendant's Exhibit A, was blank in the sections reserved for reasonable

grounds for arrest and the arresting officer's signature. (Tr. 7-8).

       {¶11} The original copy of the 2255 was placed by Trooper Myers in his

secretary's mailbox to be mailed to the BMV. (Tr. 9). Trooper Myers testified that he did

not know whether the form was actually sent, or if it was, when that task was

accomplished. Id. Though he admitted that it is his duty to ensure that the 2255 is
Licking County, Case No. 16 CA 0029                                                      4


submitted properly to the BMV, Trooper Myers testified that to personally perform the task

is against the Highway Patrol's procedure. (Tr. 21).

       {¶12} Another carbon copy of the 2255 was filed with the trial court. (Tr. 10-11).

That copy contained written statements in the reasonable grounds section and Trooper

Myers' signature in the arresting officer section. Id. When asked to explain the

discrepancy between forms, Trooper Myers denied making any additions after providing

a copy to Appellant. (Tr. 11). Trooper Myers maintained that the writing "frequently" does

not transfer to each of the carbon sheets. (Tr. 22). Moreover, he did not check on this

occasion to ensure that all of the information was transferred to each copy. Id.

       {¶13} At the conclusion of Trooper Myers' testimony, both parties were permitted

to make oral arguments and the matter was submitted for the trial court's consideration.

The trial court took judicial notice of the fact that Defendant's Exhibit B is an identical

photocopy of the 2255 in the court file. (Tr. 27). The trial court denied Appellant's ALS

appeal and motion to terminate the ALS. The trial court found that Trooper Myers had

reasonable grounds to believe that Appellant was impaired while operating a motor

vehicle. Id. The trial court also held that the ALS was immediately valid upon Appellant's

refusal to take a breath test. Id. Finally, it held that the ALS was not invalidated by any

failure of Trooper Myers to comply with R.C. §4511.192. Id.

       {¶14} Appellant timely filed the instant appeal, and the OVI and Speed charges

remain pending in the trial court.

       {¶15} Appellant now raises the following error for review:
Licking County, Case No. 16 CA 0029                                                      5


                              ASSIGNMENT OF ERROR

      {¶16} “I. THE TRIAL COURT ERRED BY FAILING TO TERMINATE THE

ADMINISTRATIVE LICENSE SUSPENSION WHERE THE ARRESTING OFFICER DID

NOT TO [SIC] COMPLY WITH THE REQUIREMENTS OF R.C. 4511.192.”

                                            I.

      {¶17} In his sole Assignment of Error, Appellant argues that the trial court erred in

not finding that his ALS suspension should be terminated because the arresting officer

failed to comply with requirements of R.C. §4511.192. We disagree.

      {¶18} More specifically, Appellant argues that Trooper Myers failed to send the

BMV 2255 form to the BMV in a timely manner.

      {¶19} Revised Code §4511.197(A) provides a right to appeal an ALS to the trial

court. R.C. §4511.197(C) sets forth the scope of such an appeal:

             If a person appeals a suspension * * * the scope of the appeal is

      limited to determining whether one or more of the following conditions have

      not been met:

             (1) Whether the arresting law enforcement officer had reasonable

      ground to believe the arrested person was operating a vehicle,* * * and

      whether the arrested person was in fact placed under arrest;

             (2) Whether the law enforcement officer requested the arrested

      person to submit to the chemical test or tests designated pursuant to

      division (A) of section 4511.191 of the Revised Code;

             (3) If the person was under arrest as described in division (A)(5) of

      section 4511.191 of the Revised Code, whether the arresting officer advised
Licking County, Case No. 16 CA 0029                                                          6


       the person at the time of the arrest that if the person refused to take a

       chemical test, the officer could employ whatever reasonable means were

       necessary to ensure that the person submitted to a chemical test of the

       person's whole blood or blood serum or plasma; or if the person was under

       arrest other than as described in division (A)(5) of section 4511.191 of the

       Revised Code, whether the arresting officer informed the arrested person

       of the consequences of refusing to be tested or of submitting to the test or

       tests;

                (4) Whichever of the following is applicable:

                (a) If the suspension was imposed under division (B) of section

       4511.191 and section 4511.192 of the Revised Code, whether the arrested

       person refused to submit to the chemical test or tests requested by the

       officer;

                * * *.

       {¶20} The standard employed by the trial court is “whether the arresting law

enforcement officer had reasonable ground to believe the arrested person was operating

a vehicle * * * in violation of division (A) or (B) of section 4511.19” - i.e. was intoxicated.

R.C. §4511.197(C)(1). It is the appellant in an ALS appeal that has the burden of proving

by a preponderance of the evidence that the arresting officer failed to give the necessary

advisement or lacked reasonable grounds. R.C. §4511.197(D). State v. Carnes, 1st Dist.

Hamilton No. C–140188, 2015–Ohio–379, ¶8.
Licking County, Case No. 16 CA 0029                                                       7


       {¶21} Revised Code §4511.192(B) provides the advisement that an officer must

give. The officer administering a breath test must orally advise the individual as well as

provide a written copy of the advisement. R.C. §4511.192(A).

       {¶22} In the instant case, during Trooper Myers’ testimony he explained that he

read appellant the BMV Form 2255, which he testified contained the advisement set forth

in R.C. 4511.192(B). He testified that he appropriately advised appellant of the

consequences of refusing to submit to a breath test and provided him with a written copy

of the advisement. Trooper Myers testified that Appellant refused the test after the

advisement was read and provided to Appellant.

       {¶23} Appellant's argument does not relate to any of the four required conditions

in order to allow the trial court to sustain his appeal. Appellant does not allege that the

officer did not have reasonable grounds to arrest him. Additionally, Appellant

acknowledges that the remaining conditions were met - that Trooper Myers asked him to

take a breathalyzer test, read the form to him, and that Appellant still refused to take the

test even though he fully understood the consequences. Furthermore, the record fully

supports that all four of the necessary conditions for an ALS appeal were met. Therefore,

Appellant has failed to meet his burden of proof that the record shows by a preponderance

of the evidence that one of the conditions found in R.C. §4511.197(C) were not met.

       {¶24} Appellant herein argues that the arresting officer, Trooper Myers, failed to

comply with R.C. §4511.192 because Appellant's copy of the form appeared to be blank

in the “probable cause to arrest” section and the signature sections for Appellant, the

officer and the witness. While R.C. §4511.192 does contain requirements that the form

contain such signatures and have the probable cause section completed, this requirement
Licking County, Case No. 16 CA 0029                                                        8


does not fall within any one of the four required conditions to maintain an appeal under

R.C. §4511.197(C). Again, as we concluded earlier, Appellant's argument does not relate

to any of the four required conditions that would have allowed the trial court to sustain his

appeal. While we could end the inquiry there, we note that the copy of the form filed with

the court did contain the signatures and wording in the probable cause section. Trooper

Myers explained to the court that because the form is a multiple part carbon form,

information is not always completely transferred to the bottom copy, which was the copy

given to Appellant. Further, Trooper Myers testified that such form was read, completed

and signed as required.

       {¶25} Appellant also argues that Trooper Myers failed to send the BMV 2255 form

to the BMV in a timely manner. Again, such is not one of the four required conditions

which would allow the trial court to sustain his appeal. As set forth in State v. Perkins,

Sixth Dist. L06-1184, 2007-Ohio-2035, “[t]he fact that the registrar does not note an

arresting officer's suspension of a license in his records … does not affect the actual

existence of the suspension pursuant to R.C. 4511.192(D)(1)(a). This section requires

the arresting officer to immediately suspend the operator's license on the registrar's

behalf, and to notify the operator of the immediacy of the suspension.” The Perkins court

found that the BMV is merely the recorder and that even if the BMV does not receive the

BMV 2255 report, the suspension itself is still valid.

       {¶26} We find that pursuant to R.C. §4511.192, the officer was required to advise

Appellant of the consequences of refusal, and that such was done in this case.

       {¶27} Based on the foregoing, we do not find that the trial court erred in denying

Appellant’s appeal of his ALS suspension.
Licking County, Case No. 16 CA 0029                                                9


      {¶28} Appellant’s sole Assignment of Error is overruled.

      {¶29} For the foregoing reasons, the judgment of the Municipal Court of Licking

County, Ohio, is affirmed.



By: Wise, J.

Farmer, P. J., and

Hoffman, J., concur.




JWW/d 0729
