State v. WellmanState v. Wellman
{¶1} Defendant-appellant Wesley Wellman appeals from the July 21, 2006, Judgment Entry of the Licking County Municipal Court. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On March 5, 2006, appellant was arrested and charged with operating a motor vehicle while under the influence of drugs and/or alcohol in violation of
{¶3} On April 6, 2006, appellant filed a motion to preserve and produce any and all audio and/or video recordings relevant to the case sub judice. Pursuant to an Entry filed the same day, the trial court granted such motion. On April 6, 2006, appellant also filed an appeal of his administrative license suspension. The same was never ruled on by the trial court.
{¶4} Subsequently, appellee, on June 28, 2006, filed a motion to dismiss all of the pending charges against appellant without prejudice since the videotape in the case sub judice had been destroyed. Appellee, in its motion, indicated that the same might have been destroyed after “the motion to preserve evidence had been ordered.” As memorialized in an Entry filed on June 29, 2006, the charges against appellant were dismissed without prejudice.
{¶5} On June 30, 2006, appellant filed a motion to terminate the ALS pursuant to
{¶6} Appellant now raises the following assignments of error on appeal:
{¶7} “I. THE TRIAL COURT ERRED WITH PREJUDICE AGAINST APPELLANT BY FAILING TO TERMINATE THE ADMINISTRATIVE LICENSE SUSPENSION IMPOSED UNDER
{¶8} “II. THE TRIAL COURT ERRED WITH PREJUDICE TO APPELLANT BY FAILING TO CONSTRUE AMBIGUOUS STATUTORY LANGUAGE AGAINST THE STATE AND IN FAVOR OF THE ACCUSED.”
{¶9} Appellant, in his first assignment of error, argues that the trial court erred in failing to terminate the ALS imposed pursuant to
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{¶12} In the case sub judice, the ALS was imposed pursuant to
{¶13} However, reading these sections of
{¶14} Moreover, we further find that appellant‘s due process rights were violated. In State v. Norman, Knox App. No. 2005CA00022, 2005-Ohio-5791, this Court held that a defendant who appeals the administrative license suspension (ALS) imposed after he is charged with operating a vehicle under the influence of alcohol is entitled to an evidentiary hearing on his appeal, even though the statute governing such appeals did not establish a procedure to be followed by the reviewing court; opportunity to be heard was inherent in an appeal, and the statue placed a burden on the motorist to prove by a preponderance of the evidence that one or more of the conditions for license suspension was not met. Id. at ¶ 17.
{¶15} As was true in Norman, appellant in the case sub judice was denied an opportunity to be heard and to prove by a preponderance of the evidence that one or more of the conditions for license suspension set forth in
{¶16} Appellant‘s first assignment of error is, therefore, sustained.
II
{¶17} Appellant, in his second assignment of error argues that the trial court erred in failing to construe the ambiguous language of
{¶18} Based on our disposition of appellant‘s first assignment of error, appellant‘s second assignment of error is moot.
{¶19} Accordingly, the judgment of the Licking County Municipal Court is reversed and this matter is remanded to the trial court with instructions to dismiss appellant‘s ALS suspension and to notify the Ohio Bureau of Motor Vehicles of such dismissal.
By: Edwards, J.
Gwin, P.J. and
Farmer, J. concur
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JUDGES
JAE/0329
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JUDGES