Fell v. Bureau of Motor Vehicles

• Decision Date: 08 June 1972
• Citation: 30 Ohio App.2d 151,283 N.E.2d 825
• Parties: , 59 O.O.2d 269 FELL, Appellant, v. BUREAU OF MOTOR VEHICLES et al., Appellees.
• Court: Ohio Court of Appeals

Page 151

30 Ohio App.2d 151

283 N.E.2d 825, 59 O.O.2d 269

FELL, Appellant, v. BUREAU OF MOTOR VEHICLES et al., Appellees.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

June 8, 1972.

Syllabus by the Court

1. Procedural due process of the Fourteenth Amendment of the United States Constitution requires that notice and an opportunity for a hearing must be given before a driver's license can be suspended. Bell v. Burson (1971), 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90; Jennings v. Mahoney (1971), 404 U.S. 25, 92 S.Ct. 180, 30 L.Ed.2d 146. R.C. 4511.191(E) provides that if the person whose license or permit to drive has been suspended petitions for a hearing, or appeals any decision which is adverse to him, the suspension will begin at the termination of any hearing or appeal which is unfavorable to the licensee. This satisfies the due process requirement of the United States Constitution. Failure of the licensee to file a timely petition for hearing would constitute a waiver of the right to the hearing.

2. A Municipal Court has jurisdiction to entertain a petition for hearing of the registrar's order of suspension under R.C. 4511.191. The Ohio Legislature created Municipal Courts, enacted the implied consent law (R.C. 4511.191) and granted the municipal courts authority to conduct the hearing provided for in R.C. 4511.191(F), (G). Further, there is no prohibition in the Ohio Constitution against the procedures established in R.C. 4511.191.

3. R.C. 4511.191(E) requires that the registrar immediately notify the licensee of the suspension of his license in writing at his last known address. The registrar must also inform the licensee that he may file a petition for a hearing in the Municipal Court or the county court, or if the person is a minor, in the juvenile court, within twenty days of the mailing of the notification of suspension. The registrar is charged with the duty of both notifying and informing the licensee. The licensee must receive the information, and actual notice is a condition precedent to the suspension taking effect.

4. R.C. 4511.191(E) contemplates immediate mailing and immediate delivery of the notice of a suspension to the licensee at his last known address. There must be an effective mailing, and mail notice is not effective until received. The purpose of this provision is to give the licensee a reasonable length of time after receiving the notice of suspension to obtain the services of an attorney to file a petition for hearing, if the licensee so chooses.

5. If there is a delay in delivery and it is not the fault of the licensee he should not be precluded from having his day in court if he decides to petition for a hearing. If, through mistake, error or inadvertence of the registrar or the Post Office Department, there is a delay in the delivery of the letter of notification of suspension from the registrar to the licensee, there is justification or excuse for the licensee to file a petition for hearing under R.C. 4511.191 more than twenty days after the date of mailing of the notice of suspension by the registrar, and the court would have jurisdiction to conduct the hearing under such circumstances.

6. If a petition for hearing is filed by the licensee under R.C. 4511.191 and the registrar raises issues concerning the timeliness of the petition, the trial court shall not dismiss the petition until it has held a hearing and determined whether there was actual notice to the licensee and whether the licensee had a reasonable period of time in which to file the petition for hearing. What is a reasonable period of time will be determined by the trial court in each case, based on all the facts and circumstances.

7. The licensee has the obligation to give his last known address to the police officer and if the address is his error he cannot later be heard to complain that he did not get the notice at his last known address. Police officers are not required to accurately determine that the address they received from the licensee, either from his driver's license or orally, is the last known address of the licensee, nor is the registrar required to make any further inquiry. He only has to mail the notice to the address contained in the affidavit.

8. If there is a delay in the delivery of the notice of suspension provided for in R.C. 4511.191, this does not make the suspension invalid or void, but only makes it ineffective until the licensee has a reasonable amount of additional time to file his petition for hearing if he so chooses.

Paul L. Mancino, Jr., Cleveland, for appellant.

John T. Corrigan, Pros. Atty., for appellees.

KRENZLER, Judge.

This is an appeal from the Bedford Municipal Court. Plaintiff-appellant Thomas Fell will hereinafter be referred to as 'plaintiff' and the defendants-appellees Bureau of Motor Vehicles and Fred Rice, Registrar, Bureau of Motor Vehicles, will hereinafter be referred to as the 'defendant' or 'registrar,' which may be used interchangeably.

Plaintiff petitioned the Bedford Municipal Court seeking a review of the order of the registrar suspending his license to drive by reason of his refusal to take a chemical test for an analysis of the concentration of alcohol in his blood under R.C. 4511.191.

Defendant made an oral motion to dismiss the plaintiff's petition because it was not filed within twenty days of the date of mailing of the notice by the Registrar of Motor Vehicles as required by R.C. 4511.191(F). Oral arguments were made by the attorneys regarding the motion to dismiss. The trial court did not permit testimony. No witnesses were sworn, examined or cross examined.

The attorney for defendant stated that he had a copy of the registrar's letter which was dated August 25, 1971, but he did not have a copy of the return receipt request form. He then stated that the petition was filed on November 2, 1970, and because the petition was not filed within twenty days of the date of the letter the petition should be dismissed.

The trial court stated that the registrar's letter was dated August 25, 1970, and that the petition of the driver was filed on October 30, 1970, which was outside the twenty-day limit of R.C. 4511.191. He then granted the motion for dismissal.

Plaintiff filed a motion for a new trial, which was overruled, and the plaintiff filed this appeal on questions of law.

Plaintiff contends that he made a request for findings of fact and conclusions of law which was not complied with, but this does not appear in the record and will not be considered.

Plaintiff hss set forth thirteen assignments of error as follows:

1. The judgment of the court dismissing the petition of the appellant is contrary to law.

2. The judgment of the court dismissing the petition of the appellant is contrary to the evidence.

3. The court committed prejudicial error in entering a judgment of dismissal without the taking of any evidence and solely upon the motion for counsel for the appellees.

4. The court committed prejudicial error in refusing to accept proper evidence concerning the last known address of the plaintiff appellant and then making a determination as to the motion to dismiss.

5. The court committed prejudicial error in determining that the petition of the plaintiff appellant was not timely filed as required by law.

6. The court committed prejudicial error in dismissing the petition of the plaintiff appellant where the petition on its face alleges facts which show that the same was timely filed in accordance with the provisions of R.C. 4511.191.

7. The provisions of R.C. 4511.191, which require automatic suspension of an operator's license upon submission of an affidavit are unconstitutional and void and deprive a person such as the appellant of due process of law and equal protection of the laws.

8. The Ohio General Assembly has unconstitutionally invested a municipal court with appellate jurisdiction contrary to the Ohio Constitution.

9. The procedures adopted by the Legislature in reviewing a license suspension issued under R.C. 4511.191 are unconstitutional and void.

10. The procedures delineating the scope of a hearing provided for in R.C. 4511.191 are unconstitutional and void.

11. The court committed prejudicial error in not entering a default judgment in favor of the plaintiff-appellant.

12. The administrative suspension of the license of the appellant without any evidence being offered to the Bureau of Motor Vehicles constitutes a denial of due process.

13. Other error occurring during the course of the proceedings and appearing upon the face of the record and statute in question.

The foregoing assignments of error will be consolidated and will be disposed of as follows:

Assignments of error seven through ten, twelve and thirteen will be disposed of in deciding whether the procedures established under R.C. 4511.191 regarding suspension of a driver's license for failure to take a chemical test violate due process and equal protection of the laws and thus render the statute unconstitutional.

Assignments of error one through six, and eleven, will be dealt with in deciding (1) whether the trial court committed prejudicial error in not holding a hearing to determine whether plaintiff's petition for review was timely filed and (2) whether the trial court committed prejudicial error in dismissing plaintiff's petition for review.

It has been recognized that with the large number of motor vehicles on our highways reckless and intoxicated drivers must be stopped. The good of the general public takes precedence over the privileges of an individual and obtaining a license to drive a car is considered a privilege and not a right. Reasonable regulations of this privilege will be permitted and the implied consent law is such a reasonable regulation.

R.C. 4511.191, the implied consent statute, is constitutional and the proceedings thereunder are civil and administrative in nature and are independent of any...