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Lysaght v. Dollison12/13/1978
BLACK, J.
Plaintiff appeals from a judgment in favor of defendant, the Registrar of the Bureau of Motor Vehicles, imposing a suspension of his driver's license under R.C. Section 4511.19.1. He assigns three errors.
The first claimed error is that the court's judgment confirming the administrative suspension for a refusal to submit to a chemical test for the determination of the alcohol content of his blood was against the manifest weight of the evidence. We find no merit in this assignment because our review of the record discloses sufficient evidence of probative force to sustain the trial court's factual conclusion that appellant in effect refused to take the test. After the first reading of the required warning, he said he did not understand, and he still could not "understand" after the warnings were read to him at least once more and explained twice. He was allowed to call and talk to his attorney, but he refused to take the test until his attorney arrived at the police station, an event which failed to take place within two hours after he had been driving. Compare Raine v. Curry (1975), 45 Ohio App.2d 155. In addition, Lysaght used a mouth spray in contravention of the warning that this would render any chemical breathalyzer test ineffective.
The other two claimed errors are that the trial court refused to abide by pretrial discovery procedures and a posttrial request for separate findings of fact and conclusions of law, pursuant to the Rules of Civil Procedure. The trial court's refusal was on the ground that under Civ. R. 1(C) the rules do not apply to the review of an administrative suspension under R.C. Section 4511.19.1 because this is a special statutory proceeding. We disagree with this conclusion.
In Ryan v. Andrews (1976), 50 Ohio App.2d 72, and Schwartz v. Andrews, unreported, First Appellate District, No. C-75562, decided October 25, 1976, we refrained from deciding whether the Rules of Civil Procedure apply to the special statutory proceedings under R.C. 4511.19.1. Earlier we held that Civ. R. 3(A) and 4 apply to a suit filed under R.C. 2117.12 on a claim rejected by the fiduciary of an estate. Yancey v. Pyles (1975), 44 Ohio App.2d 410.
The supreme court has held that under Civ. R. l(C), the Rules apply to the appropriation of property under R.C. Chapter 163, Dir. of Highways v. Kleines (1974), 38 Ohio St.2d 317, and to the forfeiture in rem under R.C. 3719.47 of a vehicle used in a narcotics offense. Sensenbrunner v. Crosby (1974), 37 Ohio St.2d 43. But the Rules do not apply to those statutory procedures whereby the Civil Rights Commission enforces a subpoena duces tecum under R.C. 4112.04(B)(6). State ex rel. Civil Rights Comm. v. Gunn (1976), 45 Ohio St.2d 262. In dicta, the supreme court said that Subdivision (C) of Civ. R. 1 must be read together with Subdivision (B) in order to effect just results by eliminating delay, unnecessary expense and all other impediments to the expeditious administration of justice. Dvorak v. Municipal Civil Service Comm. (1976), 46 Ohio St.2d 99, 103. Our courts of appeals have reached a variety of conclusions.
The staff note that accompanied the 1971 amendments to Civ. R. 1(C) states that the deletion of certain words ("specific procedure is provided by law" was deleted from the first sentence thereof) effect a substantial change by broadening the application of the Civil Rules to special statutory procedures.
"As a result of the amendment of Rule 1(C) the Civil Rules will be applicable to special statutory proceedings except 'to the extent that they would by their nature be clearly inapplicable.' Certainly the Civil Rules will not be ap
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