639 N.E.2d 876 (Ohio Co. 1994), 94 TRC 2537, Trotwood v. Briggs

Docket Nº:94 TRC 2537 AB.
Citation:639 N.E.2d 876, 64 Ohio Misc.2d 34
Opinion Judge:JEFFREY E. FROELICH, Judge.
Party Name:CITY OF TROTWOOD v. BRIGGS. [*]
Attorney:[64 Ohio Misc.2d 35] David Fuchsman, Trotwood Prosecutor, for plaintiff. Mary Donovan, Dayton, for defendant.
Case Date:July 13, 1994
Court:County Court of Ohio
 
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639 N.E.2d 876 (Ohio Co. 1994)

64 Ohio Misc.2d 34

CITY OF TROTWOOD

v.

BRIGGS. [*]

No. 94 TRC 2537 AB.

Montgomery County Court of Ohio.

July 13, 1994

[64 Ohio Misc.2d 35] David Fuchsman, Trotwood Prosecutor, for plaintiff.

Mary Donovan, Dayton, for defendant.

JEFFREY E. FROELICH, Judge.

The defendant was cited for violating R.C. 4511.19(A)(1) and Trotwood Codified Ordinance 72.005 on March 20, 1994. At that time, the defendant is alleged to have refused to submit to an alcohol test and therefore was served with BMV Form 2255 and an administrative license suspension was imposed.

The defendant entered a plea of not guilty, pro se, on March 21, 1994, and on April 7, 1994, attorney Mary Donovan entered her appearance and requested a pretrial hearing. On May 10, 1994, the defendant, through counsel, filed a formal appeal of the administrative license suspension. On May 28, 1994, a charge of left of center was dismissed and the defendant entered a plea of guilty to an amended charge of violating R.C. 4511.20, reckless operation, a misdemeanor of the fourth degree. The hearing on the defendant's appeal of his administrative license suspension came before this court on June 20, 1994. Before reaching any merits of the

Page 877

appeal, the prosecutor moved to dismiss the appeal based on the fact that it was not brought within five days of the defendant's being served with Form 2255. The prosecutor contends that the defendant was served with BMV Form 2255 on March 20, 1994 and that the defendant did not request a hearing on the suspension until May 10, 1994, almost fifty days after the notification. Therefore, the prosecutor contends that the defendant no longer has any right to such a hearing.

Form 2255 states that "you may make an appeal of the suspension in court at the time of your initial appearance. Even though you may appeal the suspension, your driving privileges will be suspended." The same form also provides that "the suspension takes effect immediately. The suspension will last at least until your initial appearance on the charge that will be held within five (5) days after the date of this arrest or the issuance of a citation to you. You may appeal the suspension at your initial appearance." The language on Form 2255 is a correct recitation of the requirements of R.C. 4511.191(H)(1), which provides the following:

"[T]he person may appeal...

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