 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Stout v. McCullion11/27/1990
WHITESIDE, Judge.
Petitioner, Todd Stout, appeals a decision of the Franklin County Municipal Court which affirmed the one-year suspension of petitioner's driver's license for refusal to submit to a breath-alcohol-content test and sets forth one assignment of error as follows:
"The trial court erred as a matter of law when it ruled that petitioner failed to prove by a preponderance of the evidence that there was error in the license suspension."
Petitioner was arrested on July 4, 1989, at 2:12 a.m. and charged with operating a motor vehicle while under the influence of alcohol. He was transported to the Franklin County Jail, where he signed a constitutional rights waiver at 3:10 a.m. An implied consent form was then read to petitioner but, when asked by the trooper whether he would submit to a chemical test, petitioner replied that he wanted to speak with an attorney. Petitioner was taken to a phone, and a deputy dialed the phone number petitioner gave him. Apparently, petitioner spoke on the phone with a friend of his, but the call was disconnected before the friend could provide him with the name of an attorney.
Petitioner then told the trooper that he had only reached a friend and that he still wanted to talk to an attorney but that he did not know the attorney's phone number. The trooper provided petitioner with a phone book, but was not certain whether it was the white or yellow pages. According to the trooper, he does not recall the petitioner's opening the phone book. A couple of minutes later, at 3:30 a.m., the trooper indicated on his paperwork that petitioner had refused to take the chemical test, although he gave petitioner no further opportunity to take the test and only an hour and eighteen minutes had elapsed since the arrest. Petitioner contends that he opened the telephone book when it was given to him and that he had been looking through the names starting with "E" for the name Bjerke, being uncertain of the spelling, for only seven to ten seconds when the deputies led him away on the ground that petitioner was simply delaying.
Petitioner was subsequently notified by respondent Bureau of Motor Vehicles, Michael J. McCullion, Registrar, that his driving privileges would be suspended for a period of one year pursuant to R.C. 4511.191(D). Petitioner appealed the suspension to the Franklin County Municipal Court, alleging, inter alia, that he did not refuse to take the test. The cause was referred to a referee of that court, who, after conducting a hearing, recommended that the one-year suspension be imposed. The trial court adopted the report and recommendation of the referee, and from that decision petitioner filed the instant timely appeal.
By his sole assignment of error, petitioner contends that the trial court erred in upholding the license suspension for two reasons: first, because petitioner was denied the "reasonable number of telephone calls" provided for in R.C. 2935.20 and, second, because he was not informed by the trooper before his actions were considered a refusal that he had to make a decision. For the following reasons, we find the assignment of error to be well taken.
In determining whether the registrar committed error in the suspension of driving privileges, the burden is on the petitioner to prove by spreponderance of the evidence that there was indeed error. Hoban v. Rice (1971), 25 Ohio St.2d 111, 54 O.O.2d 254, 267 N.E.2d 311. Whether error was committed in this case depends in part upon whether the police complied with R.C. 2935.20 and whether petitioner in fact refused to submit to the chemical test.
R.C. 2935.20 states in part:
Page 1 2 3 4 Ohio DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|