619 N.E.2d 523 | Ohio Ct. App. | 1993
Lead Opinion
On November 19, 1991, appellant, Tod C. Buchanan, filed a complaint in the Franklin County Municipal Court requesting that the suspension of his driver's license be set aside because the written form prescribed by appellee, the Registrar of the Bureau of Motor Vehicles, contained an erroneous statement as to the consequences of a refusal to submit to a chemical test following an arrest for operating a motor vehicle while under the influence of alcohol and/or drugs or driving with a prohibited alcohol content ("OMVI").
Pursuant to Civ.R. 53, the matter was assigned to a referee. The parties stipulated the following facts: On September 27, 1991, appellant was arrested by the Columbus Police Department and charged with a violation of Columbus City Code ("CC") Section
On July 7, 1992, the referee issued his report affirming the suspension and finding no error on the part of appellee. Appellant subsequently filed an objection and, on July 30, 1992, a judgment entry was filed in the Franklin *265 County Municipal Court overruling the objection and adopting the referee's report.
It is from that judgment entry that appellant appeals and asserts the following assignment of error:
"The trial court erred in upholding the petitioner's driver's license suspension for failure to take a chemical test when requested by a police officer after the police officer had failed to inform defendant of the statutory consequences as required by ORC
Appellant argues that the trial court erred in adopting the referee's determination that the implied consent form prescribed by appellee sufficiently informed appellant of those consequences of refusing to submit to a chemical test which are serious enough consequences to require their mention on the form. The issue presented is whether appellant was properly advised of the consequences of his refusal to submit to a chemical test in light of the alleged deficiencies in appellee's prescribed notification of refusal form.
R.C.
The form at issue advised appellant, in part, as follows:
"You are now under arrest for operating a vehicle while under the influence of alcohol, a drug of abuse, or both, and will be requested by a police officer to submit to a chemical test or tests, as designated by the law enforcement agency, to determine the concentration of alcohol, a drug of abuse, or both, in your blood, breath, or urine.
"If you refuse to submit to the designated chemical test or tests, or if you submit to the chemical test or tests and are found to have a prohibited concentration of alcohol, a drug of abuse, or both, in your blood, breath, or urine, and the arresting officer has taken reasonable measures to determine that within 5 years prior to this arrest, you have pleaded guilty or been convicted of operating a vehicle while under the influence of alcohol, a drug of abuse, or both (Section
"In addition to the above, refusal to submit to the chemical test or tests designated shall result in the suspension of your Ohio driver's license, commercial driver's license, or any non-resident driving privileges as follows:
"IF WITHIN 5 YEARS FROM THE DATE OF THIS ARREST:
"(1) You have not refused a previous request for chemical test or tests — 1 year suspension.
"(2) You have refused one previous request for a chemical test or tests — 2 year suspension.
"(3) You have refused two previous requests for chemical test or tests — 3 year suspension.
"(4) You have refused 3 or more previous requests for chemical test or tests — 5 year suspension.
"This suspension shall be terminated by the Registrar ofMotor Vehicles upon his receipt of notice of your entering aplea of guilty or of your conviction after entering a plea of nocontest under Criminal Rule 11, to operating a vehicle whileunder the influence of alcohol, a drug of abuse, or both, orwith a prohibited concentration of alcohol, a drug of abuse, orboth, in the blood, breath, or urine, if the offense for whichthe plea is entered arose from the same incident which led tothe suspension." (Emphasis added.)
Appellant argues that the form fails to inform a person that, pursuant to R.C.
In Norris v. Brown (1991),
Although the exact issue in this case differs from that inNorris, this court likewise finds that the statement on the form concerning the termination of the suspension of one's license is not an accurate statement of the law. The form omits the fact that the person whose license was suspended must show proof of financial responsibility and must pay a $125 reinstatement fee. One's license suspension will not be terminated simply upon the imposition of a guilty plea or a no contest plea to the offense from the same incident which led to the suspension.
The question was not whether the consequences which appellee included on the form were serious enough to warrant mention. The issue was whether that information which was placed on the form was an accurate statement of the law. In the present case, the statement concerning the termination of the driver's license suspension was incorrect. Therefore, appellant's sole assignment of error is well taken and is sustained.
Although the concurring opinion suggests that the suspensionterminates upon the expiration of the suspension period but that the license is not returned until the reinstatement fee is paid, this is a technical difference without a significant meaning. The person's loss of his or her right to drive is not restored until the reinstatement fee is paid. Whether driving between "termination" and payment of the reinstatement fee constitutes driving while under suspension or driving without a license, is not determinative of the issues herein. The form leads a reasonable person to think that he or she can drive upon the expiration of the suspension time period when, in fact, he or she cannot do so until the reinstatement fee is paid.
Based on the foregoing, appellant's assignment of error is sustained and the judgment of the Franklin County Municipal Court is reversed. This matter is remanded to the Franklin County Municipal Court for further proceedings consistent with this opinion.
Judgment reversedand cause remanded.
PEGGY BRYANT, P.J., and WHITESIDE, J., concur. *268
Concurrence Opinion
The majority opinion concludes that the payment of a reinstatement fee of $125 is a direct consequence of a refusal to take a chemical test under R.C.
Contrary to the majority opinion, in my opinion, the suspension imposed under R.C.
Nonetheless, the evidence herein discloses that appellee's form at one time advised that a consequence of a refusal was payment of the reinstatement fee. Although that statement subsequently was omitted in the revised form, it apparently has been included once more. Under such circumstances, despite my opinion as to necessary admonitions contemplated under R.C.