State v. RhoadsState v. Rhoads
For Plaintiff-Appellee: MATTHEW B. WIDEMAN 0075118, 123 East Chestnut Street, P.O. Box 1008, Lancaster, Ohio 43130
For Defendant-Appellant: JAMES R. KINGSLEY 0010720, 157 West Main Street, Circleville, Ohio 43113
{¶1} Defendant-Appellant Jonathan Rhoads appeals the judgment of the Fairfield County Municipal Court, denying his appeal of an ALS suspension after he was arrested for Operating a Vehicle Under the Influence (“OVI“) in violation of
{¶2} On December 21, 2010, Appellant was pulled over by the Ohio Highway Patrol for speeding. The trooper observed an odor of alcohol on Appellant and indicated on the BMV 2255 form that Appellant had glassy eyes. The trooper requested that Appellant exit his vehicle and asked Appellant to perform field sobriety tests. Appellant refused to complete any field sobriety tests and the trooper still noticed an odor of alcohol on Appellant‘s person.
{¶3} Appellant was arrested and transported to jail, where he was read the BMV 2255 form and he refused to submit a chemical test of his breath. He was placed under an administrative license suspension (“ALS“).
{¶4} The next day, Appellant appeared in the Fairfield County Municipal Court for his initial appearance. He did not request a stay of the ALS or appeal it at that time. On January 10, 2011, Appellant requested a judicial review of the ALS and that request was granted and the case was set for an ALS appeal hearing on February 7, 2011. The hearing was conducted and the trial court overruled Appellant‘s appeal.
{¶5} On February 24, 2011, Appellant‘s counsel filed an affidavit of disqualification of the municipal court judge. Disqualification was denied on March 11, 2011 by a judge of the court of common pleas, probate and juvenile division.
{¶6} Appellant now appeals to this Court and raises two Assignments of Error:
{¶8} “II. WAS IT PREJUDICIAL ERROR FOR JUDGE HARRIS TO PRESIDE?”
I.
{¶9} In his first assignment of error, Appellant argues that the trial court erred in overruling his ALS appeal. We disagree.
{¶10} The Ohio Supreme Court has held an appeal of an ALS suspension is a civil matter; see State v. Williams (1996), 76 Ohio St.3d 290, 667 N.E.2d 932. For this reason, we apply the standard set forth in C.E. Morris Company v. Foley Construction Company (1978), 54 Ohio St.2d 279, 376 N.E.2d 578. A civil judgment which is supported by competent and credible evidence may not be reversed as against the manifest weight of the evidence. This Court may not substitute its judgment for that of the trial court. Myers v. Garson (1993), 66 Ohio St.3d 610, 614 N.E.2d 742.
{¶11} Currently, when an offender is arrested on a charge of OVI, an arresting officer, acting on behalf of the Registrar of Motor Vehicles (“BMV“), is required to immediately seize the license of a driver under arrest for drunk driving who either refuses to submit to the designated chemical test [of blood, breath or urine] or submits to the designated chemical test and fails by testing over the statutory limit.
{¶12}
{¶13} The trial court was not dilatory in its disposition of the ALS appeal. Appellant failed to request a stay or appeal the suspension at his arraignment. It was not until eighteen days later that he filed an appeal of the ALS. The trial court set a hearing date which occurred twenty-eight days after Appellant filed his appeal. An appeal of an ALS suspension does not stay the suspension and the appeal may be continued, by motion of the parties or by the court. A continuance does not stay the suspension.
{¶14} Appellant‘s testimony at the ALS hearing, coupled with the BMV 2255 form, formed a sufficient basis for the trial court‘s decision to deny driving privileges and to refuse to dismiss the ALS. There is simply no credible evidence before us that the trial court universally denies all ALS appeals or that it never grants driving privileges on a case where a defendant refuses to submit to testing.
{¶16} Appellant‘s first assignment of error is overruled.
II.
{¶17} In his second assignment of error, Appellant challenges the denial of his motion for disqualification of the municipal court judge. Such a challenge cannot properly be brought before this Court.
{¶18} No appeal from an order of disqualification in a proceeding under
{¶19} A common pleas judge, in acting by authority of
{¶20} “Appeals from the Municipal Court to the Court of Appeals are authorized by
{¶21} “The order of disqualification of a judge of a court inferior to the Court of Common Pleas, under
{¶22} Accordingly, this Court has no authority to render a decision with regard to disqualification or to void a trial court‘s judgment on the basis of personal bias or prejudice on the part of the trial judge. See also, State v. Hunter, 151 Ohio App.3d 276, 783 N.E.2d 991, 2002-Ohio-7326 (court of appeals has no authority to render a decision with regard to disqualification of municipal court judge)
{¶23} Appellant‘s second assignment of error is overruled.
{¶24} For the foregoing reasons, the judgment of the Fairfield County Municipal Court is affirmed.
By: Delaney, J.
Gwin, P.J. and
Farmer, J. concur.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. SHEILA G. FARMER
For the reasons stated in our accompanying Memorandum-Opinion on file, the judgment of the Fairfield County Municipal Court is affirmed. Costs assessed to Appellant.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. SHEILA G. FARMER