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State of Ohio/City of Bowling Green v. Huffman11/10/2005
DECISION AND JUDGMENT ENTRY
{ } This is an accelerated appeal from a judgment of the Bowling Green Municipal Court which affirmed the administrative license suspension of defendant-appellant Rita J. Huffman.
{ } On January 1, 2005, at approximately 12:29 p.m., appellant was driving south on Interstate 75 when Trooper Nathaniel Townes of the Ohio State Highway Patrol pulled her over for following too closely to the car in front of her. Townes approached appellant and asked for her driver's license and registration. When appellant responded, Townes noticed the odor of an alcoholic beverage coming from inside the vehicle. Townes then asked appellant to remove her sunglasses. When she did, Townes noticed that appellant had been crying and that her eyes were bloodshot and glassy. Townes directed appellant to exit the car but appellant stated that she first wanted to call her attorney, who is also her father. Appellant called her father and spoke to him for several minutes, at which point Townes told appellant to get off of the phone. Appellant then exited her car and told Townes that she was not going to perform any tests. With that, Townes escorted appellant to his patrol vehicle and placed her under arrest for driving under the influence of alcohol. After placing her in the cruiser, Townes retrieved appellant's purse and cell phone from her car and placed it in the front seat of the cruiser.
{ } Townes then transported appellant to the police department in Bowling Green. While at the police department, Townes read to appellant the Bureau of Motor Vehicles Form 2255, advising her that she was under arrest for OMVI, requesting that she submit to a breath ("BAC") test, and informing her of the consequences of a refusal to submit. Appellant then asked if she could contact her attorney. Townes stated that she had already spoken to her attorney and again asked appellant if she would take the breath test. Appellant responded that she would not take the test. At the hearing below, appellant testified that she understood the consequences of her refusal. She then signed the form and Townes completed the form (except for the portion noting the address of the police department and the officer's signature) indicating that appellant had refused to submit to a breath test. Townes then returned appellant's purse and cell phone to her, at which time appellant called her attorney/father. While appellant was still on the phone with her attorney, she and the officers left the room where the BAC verifier machine was located and walked to the front of the police station. Appellant then told Townes, while she was still on the phone with her attorney, that she wanted to take the test. Townes told her it was too late and that she had already refused. Appellant again asked to take the test and again Townes told her it was too late. The lower court found that this conversation took place between five and twelve minutes after appellant first told Townes she would not take the breath test. As a result of her refusal to submit to the breath test, an administrative license suspension ("ALS") was imposed, suspending appellant's driver's license for one year.
{ } On January 5, 2005, appellant appealed the ALS in the court below pursuant to R.C. 4511.191(H), asserting that she did not refuse to take the BAC test. The lower court held a hearing on the appeal at which appellant, Trooper Townes and John Huffman, appellant's father and attorney, testified to the facts as set forth above. In closing arguments, appellant's counsel asserted that appellant did not in fact refuse to take the BAC test but, rather, invoked her right to consult with her attorney before determining whether to take the test. In the al
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