State v. Morrison

• Decision Date: 16 June 1982
• Citation: 2 Ohio App.3d 364,442 N.E.2d 114
• Parties: , 2 O.B.R. 421 The STATE of Ohio (City of Akron), Appellee, v. MORRISON, Appellant.
• Court: Ohio Court of Appeals

Page 364

2 Ohio App.3d 364

442 N.E.2d 114, 2 O.B.R. 421

The STATE of Ohio (City of Akron), Appellee, v. MORRISON, Appellant.

Court of Appeals of Ohio, Ninth District, Summit County.

June 16, 1982.

Syllabus by the Court

1. To comply with R.C. 4509.13, the Registrar of Motor Vehicles must send the required written notice by certified mail to the licensee's "last known address." The licensee's "last known address" is the address appearing on a licensee's most recent license application or a new address which the licensee specifically supplies to the Bureau of Motor Vehicles as his most current address.

2. In a prosecution under R.C. 4509.76, once the state meets its burden to present a prima facie case that the defendant drove under suspension, then the defendant may proffer evidence to rebut the presumption of compliance by the Bureau of Motor Vehicles with the statutorily devised notice provisions.

Saundra Robinson, City Prosecutor, for appellee.

J. Dean Carro and Appellate Review Office, School of Law, Univ. of Akron, Akron, for appellant.

MAHONEY, Presiding Judge.

Gary Morrison appeals his conviction for driving while his license was suspended pursuant to R.C. 4509.17 and driving on an expired license in separate incidents. We affirm in part, reverse in part, and remand.

Facts

On August 17, 1979, Morrison hit a telephone pole while he allegedly attempted to avoid an oncoming car. The officer investigating the accident discovered, from a computer check, that Morrison's license had been suspended under the Financial Responsibility Act, R.C. 4509.01 et seq., as the result of a prior 1978 collision. Morrison protested that there must be a mistake, but he was cited for driving under suspension, and failure to control.

On June 5, 1981, police officers responded to a fight call at an address in Springfield Township. As they arrived a woman pointed to a car pulling away from the curb. Officer Moneypenny followed the car and stopped it. He viewed Morrison switch seats with his female passenger. A computer check showed that Morrison's license had expired and he was cited accordingly.

On September 30, 1981, before the trial of all three cases began, the defendant moved to suppress any evidence obtained as a result of the June 1981 stop on grounds that the arresting officer lacked probable cause to make the stop. That motion was overruled. Trial began and the trial court found him guilty of driving under suspension on August 17, 1979 but dismissed the failure to control charge. He was also convicted of driving on an expired license on June 5, 1981.

Assignment of Error I

"Since there was insufficient evidence to establish that the appellant had the requisite criminal culpability or mens rea, the city was relieved of its burden of proving every element of the crime beyond a reasonable doubt in violation of appellant's Fourteenth Amendment due process rights and the laws of Ohio."

Appellant challenges the propriety of his conviction for driving under suspension on grounds that the state failed to establish Morrison's culpability due to faulty attempts at notifying him of the original suspension. Morrison had been involved in an automobile collision in November 1978, with an Irvin Kester. As a result, Kester submitted an accident report to the Bureau of Motor Vehicles (BMV) claiming $1,433.70 in property damage to his car. On the basis of this report and the provisions of R.C. 4509.12 the Registrar of the Bureau of Motor Vehicles determined that a $1,433.70 security deposit would be required of Morrison. The BMV then proceeded to notify Morrison of this pursuant to R.C. 4509.13 which provides:

"The registrar of motor vehicles, * * * upon determining the amount of security to be required of any person involved in such accident * * * shall give written notice to such person of the amount of security required to be deposited by him. Such notice shall inform the person of his right to a hearing if written request is made within thirty days of the mailing of the notice."

Morrison disputes the authenticity and admissibility of the state's proffer of BMV records which purport to show compliance with these notice requirements. The state was unable to controvert Morrison's evidence that he in fact did not receive the notice of the required security deposit. Despite the failure to receive actual notice, his suspension became effective April 14, 1979, in accordance with the terms of R.C. 4509.17, which provides, in part:

" * * * upon failure of any person to request a hearing as provided for in section 4509.13 of the Revised Code, or to deposit the security required under section 4509.12 of the Revised Code within thirty days after the registrar of motor vehicles has sent the notice provided for in section 4509.13 of the Revised Code, the registrar shall suspend the license of such person * * *."

The issues which we must decide are whether Morrison may attack the underlying suspension upon which his conviction is based and, if so, whether in fact the BMV effected sufficient notice in this case, by compliance with its statutory duties to send notice to the "last known address."

In order to decide whether to permit an attack upon the underlying suspension we must face the holding of this court in State v. McCall (June 21, 1978), Summit App. No. 8802, unreported, which involved an attack on the notice provided to McCall of his R.C. 4509.17 suspension. McCall held:

"While the act of the state in making the suspension may be open to attack or question insofar as the method of doing it was concerned, that type of attack is not permissible as a collateral issue evidencing a lack of guilt in the traffic case.

" * * * The order of suspension is presumed valid until set aside in a proper proceeding involving the parties to the suspension. That question is not one subject to test in a criminal case involving parties other than those in the original suspension order. * * * " Id. at 3.

At that time this court felt that it would be inappropriate to permit a collateral attack in a proceeding which gave the BMV no opportunity to defend the suspension. This would place the burden on the licensee to attack the suspension directly in a civil proceeding. While this is the more desirable approach, the rule becomes unwieldy when reviewed in the light of constitutional due process applied to criminal proceedings. Therefore, we have reviewed the principle and now conclude that McCall, supra, should be overruled to the limited extent that it prohibits a defendant from showing that the BMV did not comply with the notice provisions applicable to a BMV suspension order which is the basis of a subsequent driving under suspension charge. We are compelled to allow this limited exception because it is a criminal charge.

We emphasize that we do not extend this exception to an attack on the validity of the underlying suspension itself in a criminal case. This exception is limited to a determination whether the state agency has complied with its statutory duties regarding notice of suspension to the licensee involved. The agency's certified record if it shows a mailing would ordinarily make out a prima facie case. Then the licensee would have the burden of going forward with evidence that the notice requirements were not met. However, the burden of proof beyond a reasonable doubt remains at all times on the state to show it met its statutory duty as to notice requirements. Thus, the issue of "last known address" becomes a factual issue for the trier of fact.

We also hold that Morrison need not receive actual notice of the suspension. Townsend v. Dollison (1981), 66 Ohio St.2d 225, 421 N.E.2d 146 , in effect held that, in a point suspension under R.C. 4507.40(K), actual notice is not necessary. Furthermore, the court concluded that registered mail notice to a licensee's last known address is reasonably calculated to apprise the licensee of the license suspension. Townsend, supra, at 227, 421 N.E.2d 146. See, also, Ryan v. Andrews (1976), 50 Ohio App.2d 72, 73, 361 N.E.2d 1086 ; Guziak v. Dollison (May 5, 1982), Summit App. No. 10457, unreported.

We see no difference between a point suspension and a security deposit suspension (R.C. 4509.17) on the issue of what notice is sufficient to meet constitutional standards. Accordingly, constructive notice reasonably calculated to apprise the licensee of the suspension is all that is required of the BMV in order for a security deposit suspension to be valid.

It remains for us to determine what type of notice is in fact provided for in R.C. 4509.13, which applies to a security deposit suspension. By its terms R.C. 4509.13 only specifies that a licensee receive "written notice" of the amount of security required and of the right to a hearing. In accordance with other statutes which regulate license suspension and Townsend v. Dollison, supra, we interpret R.C. 4509.13 to require that written notice be sent by certified mail to licensee's last known address. Such notice whether actually received or not, is reasonably calculated to inform the licensee that his license will be suspended absent compliance with the security deposit provision.

We are also compelled to determine for notice purposes, what shall constitute a licensee's "last known address." The Supreme Court has addressed this question in a case involving a notification requirement in an Ohio Bureau of Employment Services case. Holmes v. Union Gospel Press (1980), 64 Ohio St.2d 187, 414 N.E.2d 415 [18 O.O.3d 405]. In Holmes the court, at page 189, 414 N.E.2d 415, said:

" * * * The requirement of R.C. 4141.28(H), that the administrator's decision on reconsideration be mailed 'to the last known post office address of the appellant,' contemplates that the administrator will mail the copy of the decision to the most current address available in the records of the bureau. * * *."

This language was cited approvingly in Townsend v. Dollison, su...