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These are actual briefs Chuck has published for use by Ohio lawyers.

IN THE COURT OF APPEALS

FIRST APPELLATE DISTRICT OF OHIO

HAMILTON COUNTY, OHIO

 

 

STATE OF OHIO,                                        :           Appeal Nos.   C-090279

                                                                                                            C-090280

            Plaintiff-Appellant                            :                                  C-090281     

 

                        Vs.                                           :           Trial Nos.      C09TRC5888A

                                                                                                            C09TRC5888B        

STEVEN R. BOCKSTIEGEL,                      :                                  C09TRC5888C

            Defendant-Appellee.                        :

 

 

 

                   Appeal From the Hamilton County MUNICIPAL COURT

BRIEF OF DEFENDANT-APPELLEE

 

Chuck Strain (0025860)

Attorney at Law

 

639 Main Street

Cincinnati, Ohio 45202-2514

Phone 513-621-2889

Fax 513-763-7704

Email DUIguy@earthlink.net

 

Counsel for Defendant-Appellee

 

 

Joseph T. Deters (0012084P)

Hamilton County Prosecuting Attorney

 

Rachel Lipman Curran (0078850P)

Assistant Prosecuting Attorney

 

230 East Ninth Street #4000

Cincinnati, Ohio 45202                                              

Phone 513-946-3091

Fax 513-946-3021

 

Counsel for Plaintiff-Appellant

 


I.  Table of Contents and Assignments of Error

 

 

I.   Table of Contents and Assignments of Error           ii-iv

 

II.  Table of AUTHORITIES                                                                      v

           

III.  Statement of the Case                                                                 1

 

               RC 4511.19(A)(1)(a)                                                                                 1

 

            RC 4511.19(A)(1)(f)                                                                                     1

 

       A.  Procedural Posture                                                                              1

 

       B.  Statement of Facts                                                                               2

 

IV.   Assignments of Error and Argument                              2

 

        APPELLANT’S First Assignment of Error                           2

 

The court erred as a matter of law when it dismissed

Bockstiegel’s OVI charges.

 

       Issue Presented for Review and Argument                                      3

 

Dismissal of criminal charges is a reasonable remedy where a

statute contains unequivocal mandatory language of a deadline,

which deadline is missed with no excuse offered by the state, where

there is no other rational place to draw the line, and where all this is

in accord with a new command from the legislature.

 

RC 4511.19(A)(1)(a)                                                                                   3

 

RC 4511.19(A)(1)(f)                                                                                    3

 

RC 4511.191(D)(2)                                                                                      3, 6

 

RC 4511.196(A)                                                                                           3, 6

 

Ohio Administrative Code 3701-53-05(C)                                             3

 

State v. Burnside, 100 Ohio St.3d 152, 159, 2003-Ohio-5372,           3

797 N.E.2d 71.

 

RC 1.14                                                                                                         4

 

Criminal Rule 45(A)                                                                                    4

 

RC 2901.04(A)                                                                                            4

 

Columbus v. Rose, 2007-Ohio-499, 10th Dist.,             

February 6, 2007                                                                                        6, 12

 

RC 4511.191                                                                                                 6

 

RC 4511.191(K)                                                                                           6

 

RC 4511.193(B)                                                                                           7

 

RC 4511.197(A)                                                                                           7

 

Traffic Rule 8                                                                                               8

 

Traffic Rule 10                                                                                             8

 

Criminal Rule 5                                                                                            8

 

Criminal Rule 10                                                                                         8

 

Criminal Rule 11                                                                                          8

 

Traffic Rule 11(B)(1)                                                                                   8

 

RC 2945.71                                                                                                   8

 

Knox v. Parking Co. (1st Dist. 1991), 73 Ohio App.3d 177,

596 N.E.2d 1059                                                                                         9

 

Columbus Municipal Code 2133.01                                                          9

 

RC 4511.19                                                                                                   9

 

State v. Barnell (1924), 109 Ohio St. 246, 142 N.E. 611                       9

 

State v. Gibson, 144 Ohio Misc.2d 18, 2007-Ohio-6069,

877 N.E.2d 1053                                                                                          9, 12

 

In re Davis (1999), 84 Ohio St.3d 520, 1999-Ohio-419,

705 N.E.2d 1219                                                                                         10, 14

 

Dorrian v. Scioto Conservancy Dist. (1971), 27 Ohio St.2d 102,

56 O.O.2d 58, 271 N.E.2d 834.                                                                 11

 

State v. Burnside, 100 Ohio St.3d 152, 159, 2003-Ohio-5372,

797 N.E.2d 71.                                                                                              11

 

APPELLANT’S Second Assignment of Error                               12

 

The court erred as a matter of law when it dismissed

Bockstiegel’s administrative license suspension.

 

Issue Presented for Review and Argument                                             12

 

The court cannot err in “dismissing” an ALS where the record

reflects neither that an ALS was ever imposed, nor that

the court has even addressed the issue of an ALS.

 

RC 4511.197(C)                                                                                             14

 

APPELLANT’S THIRD ASSIGNMENT OF ERROR                                  14

 

The court erred as a matter of law when it declared it did not

have jurisdiction over Bockstiegel.

 

       Issue Presented for Review and Argument                                      14

 

Non-compliance with a mandatory statute will render the

proceedings to which it relates illegal and void.

 

In re Byrd, 2005-Ohio-3148, 05-LW-2749 (10th)                                 14

 

State ex rel. Botkins v. Laws (1994), 69 Ohio St.3d 383, 385,

632 N.E.2d 897                                                                                             14

 

State ex rel. Jones v. Farrar (1946), 146 Ohio St. 467,

66 N.E.2d 531                                                                                               14

           

State v. Withrow, Franklin App. No. 03AP-999,

2004-Ohio-3699                                                                                          14

 

 

V.   Conclusion                                                                                               15

VI.  Certificate of Service                                                                  15


II.  Table of AUTHORITIES

           

Columbus v. Rose, 2007-Ohio-499, 10th Dist., February 6, 2007                   6, 12

Dorrian v. Scioto Conservancy Dist. (1971), 27 Ohio St.2d 102,

            56 O.O.2d 58, 271 N.E.2d 834                                                                    11

In re Byrd, 2005-Ohio-3148, 05-LW-2749 (10th)                                             14

In re Davis (1999), 84 Ohio St.3d 520, 1999-Ohio-419,

            705 N.E.2d 1219                                                                                           10, 14

Knox v. Parking Co. (1st Dist. 1991), 73 Ohio App.3d 177,

            596 N.E.2d 1059                                                                                          9

State ex rel. Botkins v. Laws (1994), 69 Ohio St.3d 383, 385,

            632 N.E.2d 897                                                                                             14

State ex rel. Jones v. Farrar (1946), 146 Ohio St. 467,

                                    66 N.E.2d 531                                                                                               14

State v. Barnell (1924), 109 Ohio St. 246, 142 N.E. 611                                      9

State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372,

            797 N.E.2d 71                                                                                                 3, 11

State v. Gibson, 144 Ohio Misc.2d 18, 2007-Ohio-6069,

            877 N.E.2d 1053                                                                                           9, 12

                        State v. Withrow, Franklin App. No. 03AP-999,

                                   2004-Ohio-3699                                                                                               14

 

RC 1.14                                                                                                                       4

RC 2901.04(A)                                                                                                         4

RC 2945.71                                                                                                                8

RC 4511.19                                                                                                                9

RC 4511.19(A)(1)(a)                                                                                                1

RC 4511.19(A)(1)(a)                                                                                                3

RC 4511.19(A)(1)(f)                                                                                                 1

RC 4511.19(A)(1)(f)                                                                                                 3

RC 4511.191                                                                                                              6

RC 4511.191(D)(2)                                                                                                   3, 6

RC 4511.191(K)                                                                                                        6

RC 4511.193(B)                                                                                                        7

RC 4511.196(A)                                                                                                        3, 6

RC 4511.197(A)                                                                                                        7

RC 4511.197(C)                                                                                                         14


Columbus Municipal Code 2133.01                                                                       9

Ohio Administrative Code 3701-53-05(C)                                                           3

 

Criminal Rule 5                                                                                                         8

Criminal Rule 10                                                                                                       8

Criminal Rule 11                                                                                                       8

Criminal Rule 45(A)                                                                                                 8

Traffic Rule 8                                                                                                            8

Traffic Rule 10                                                                                                          8

Traffic Rule 11(B)(1)                                                                                                8


 

III.  Statement of the Case

            The trial court properly dismissed these DUI cases—without prejudice—for lack of a first hearing within five days of the citation being issued.  The legislature has changed the statute from when it previously required a five-day hearing only when an administrative license suspension (hereinafter ALS) is imposed.  Now the statute commands that “[r]egardless of whether the . . . license . . . is or is not suspended . . . , the person’s initial appearance on the charge . . . shall be held within five days . . . .”[1]  Shall means shall.

A.  Procedural Posture

            Defendant-appellee Bockstiegel was cited for two kinds of DUI and failure to maintain an assured clear distance.  According to the traffic ticket:[2]  a) The violations occurred on January 20, 2009; b) The ticket was served on Bockstiegel on January 21, 2009; and c) Bockstiegel was cited to court on February 9, 2009, which was 20 days after the violation and 19 days after service of the citation.  Bockstiegel filed a motion to dismiss the DUI charges at that initial appearance on February 9, 2009.[3]  Because the state had missed the five-day deadline, that motion was granted on April 2, 2009.[4]  The state filed a notice of appeal on April 23, 2009[5] (although the state’s brief asserts that the notice of appeal was filed a day later, perhaps a typographical error).

            If the Court will tolerate attention to detail here, there are several allegations about facts that are not in the record, but which appear in the procedural posture section of the state’s brief.  First, the state alleges that Bockstiegel was cited to Sharonville Mayor’s Court.  But the traffic ticket[6] and the court’s journal[7] demonstrate that Bockstiegel’s initial appearance was in Hamilton County Municipal Court at the Sharonville Area Court location.  Second, the state alleges that Bockstiegel was never arrested.[8]  While it may be true, that fact appears nowhere in the record.  To the contrary, the pre-printed judge’s sheet suggests that Bockstiegel was arrested on January 20, 2009.[9]  Third, the state alleges that Officer James Salyer issued the citation, but the officer’s first name is not in the record; only his first initial is.[10]  Fourth, the state alleges that Officer Salyer never imposed an ALS upon Bockstiegel.  While true, that fact is not in the record.

B.  Statement of Facts

            The pertinent facts of this case are already stated in the first paragraph of section A. above.  The facts section of the state’s brief alleges many facts leading up to Bockstiegel’s DUI charges, and well beyond.  But the only facts of record not already stated in section A. above, lie within the four corners of the traffic ticket.[11]  Therefore, Bockstiegel can agree with the  facts offered by the state’s brief only to this very limited extent:  He was driving a 1997 Ford on Cornell Road in Sharonville.  (Note that the ticket alleges his car was silver,[12] while the state’s brief alleges it was dark blue).  Absolutely nothing else alleged in the state’s facts section appears in the record.  Besides being outside the record and irrelevant to this appeal, those allegations are prejudicial.  They should therefore be stricken.

IV.  Assignments of Error and Argument

APPELLANT’S First Assignment of Error

            The court erred as a matter of law when it dismissed Bockstiegel’s OVI charges.

Issue Presented for Review and Argument

                        Dismissal of criminal charges is a reasonable remedy where a statute contains unequivocal mandatory language of a deadline, which deadline is missed with no excuse offered by the state, where there is no other rational place to draw the line, and where all this is in accord with a new command from the legislature.

A.  Mandatory Language

            Bockstiegel was arrested and issued a citation for a violation under RC 4511.19(A)(1)(a) and RC 4511.19(A)(1)(f).  It is mandatory—and therefore jurisdictional—that Bockstiegel be brought before the court for an initial appearance within five days.  Both RC 4511.191(D)(2) and RC 4511.196(A) command that:

 

[R]egardless of whether the person’s driver’s . . . license . . . is or is not suspended under [RC 4511.191], the person’s initial appearance on the charge  . . . shall be held within five days of the person’s arrest or the issuance of the citation to the person.  [Emphasis added.]

 

            This five-day period is mandatory because the language of the statute unequivocally requires it.  The command word “shall” is used, not the directive “should,” or the permissive “may,” or “can.”  The Ohio Supreme Court has recently examined the word “shall” in the context of Ohio Administrative Code 3701-53-05(C), which:

 

declares in no-uncertain terms that ‘[b]lood shall be drawn * * * into a vacuum container with a solid anticoagulant.’ [Emphasis added.]  This language does not advise the use of a solid anticoagulant when drawing a blood sample; it demands it. [Emphasis added.][13]

 

B.   What’s the Deadline?

            Bockstiegel’s violation (and possible arrest) was on Tuesday January 20.  He was issued a citation on Wednesday January 21.  What’s the deadline for affording him an initial appearance?  Five calendar days from the time of serving the citation—the starting time more favorable to the state—would be Monday January 26.  But the Ohio General Assembly has provided statutory interpretation assistance:

 

The time within which an act is required by law to be done shall be computed by excluding the first and including the last day; except that, when the last day falls on Sunday or a legal holiday, the act may be done on the next succeeding day that is not Sunday or a legal holiday.[14]

 

Using this rule, the deadline would still be Monday January 26.

            Criminal Rule 45(A) is essentially in accord with RC 1.14, but adds:

 

When the period of time prescribed or allowed is less than seven days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in computation.

            Because Saturday January 24 and Sunday January 25 would be excluded from the count,[15] the deadline would be postponed to Wednesday January 28.  We need not debate whether either RC 1.14 or Criminal Rule 45(A) trumps the other.   The interpretation most favorable to the state places the deadline at Wednesday January 28.

C.  Defendant Was Denied a Timely Hearing

            Bockstiegel’s ticket cited him to Hamilton County Area Court on Monday, 2-9-09 at 7 pm.  That court date was 20 days after the violation (and possible arrest), 19 days after issuance of the citation, and 12 days after the deadline for the five-day hearing (as interpreted most favorably to the state).

D.  Where Else to Draw the Line?

            Of course, this statutory five-day deadline “shall be strictly construed against the state, and liberally construed in favor of the accused.”[16]  But what if this Court were to ignore that rule of construction?  What if this Court were to do the opposite, construing it strictly against the accused and liberally in favor of the state?  The Court then might excuse the state for missing the deadline.

            If so, where would the Court draw the line?  Would missing the deadline by three days be okay, but four wouldn’t?  Would ten days be “close enough for government work,” but eleven wouldn’t?  Bockstiegel submits that this Court doesn’t want to venture onto that slippery slope.  The line is drawn and couldn’t be much clearer.  It’s five days.

E.  No Equitable Reasons to Run to the State’s Aid

            The state has not offered one excuse or explanation for the missed deadline.  Surely, had there been a blizzard or a computer meltdown that prevented a timely hearing, the state would have come forward with such a reason to make an ad hoc exception.  Further, the state hasn’t suggested an alternative deadline somewhere down the slippery slope if the five business days are not enough for some reason.  Perhaps the state simply wants there to be no effective deadline.   Indeed, the state has sat on its own hands by not dismissing this case and refiling.  Instead, whether with hubris or humility, the state wants this Court to decide that this simple rule shouldn’t be enforced against it.

F.  Dismissal is a Reasonable Remedy

            What harm could come to the state if it were to miss this deadline and have the

case dismissed without prejudice?  The only harm would be that the state, if it considered the charges important enough, would reissue the complaint.  And what good could come to the state if the case were dismissed?  Perhaps the state and its officers would learn that shall means shall, and that deadlines, written into the law for a reason, should be shown respect.

            Without a dismissal, thinking people would cringe to hear a judge effectively say, “Shall doesn’t mean shall.”  With a dismissal, they would observe the powerful state fairly wielding its sword, even against itself.  The rule of law would triumph and garner respect.

            Because RC 4511.191(D)(2) and RC 4511.196(A) don’t have a built-in remedy if the five-day deadline is missed, it’s up to the courts to fashion a remedy that applies whether or not there’s an ALS.  For if there is no remedy, the word “shall” in the statute has no meaning, the General Assembly’s intention is thwarted, statutory construction edicts like “strictly construed against the state” are insulted, and litigants—especially officers who should know better—are encouraged to ignore clear rules.

G.  Legislative Intent

            The General Assembly’s intention is made clear in the language that is barely—perhaps intentionally—left out of a quote of the statute in Columbus v. Rose.[17]  Either stretching to reach a contrary conclusion or just missing the point, the court in Columbus v. Rose quoted RC 4511.191(D)(2) and RC 4511.196(A), beginning in mid-sentence:

[T]he person’s initial appearance on the charge . . . shall be held within five days of the person’s arrest or the issuance of the citation to the person. 

 

But the relevant part of the statute on this dismissal issue is the part immediately before that truncated quote.  Columbus v. Rose wants to say that the five-day hearing has to do with nothing except addressing the ALS.  But with the part of the sentence that is cut out by Columbus v. Rose added in italics here, the meaning of the sentence is exactly the opposite:

[R]egardless of whether the person’s driver’s . . . license . . . is or is not suspended under [RC 4511.191], the person’s initial appearance on the charge  . . . shall be held within five days of the person’s arrest or the issuance of the citation to the person.

H.  Past Legislative Intent

            It’s easy to understand how the Columbus v. Rose court could lose its way on this point:  Old habits die hard.  It’s true that in the past, the statute had a different meaning.  RC 4511.191(K), the predecessor statute effective July 25, 1990, read:

 

[I]f the results of a chemical test [are over the legal limit], or if any person refuses [the test], then that person shall have his . . . license . . . suspended . . . and the judge . . . shall continue the suspension . . . if the judge . . . at the initial appearance, which shall be held within five days from the date of the citation or arrest, determines . . . .

Correspondingly, RC 4511.193(B) at the time read:

 

[T]he person may appeal the suspension at his initial appearance on the charge, which shall be held, in accordance with division (K) of section 4511.191 of the Revised Code, within five days from the date of the citation or arrest.

 

            The statute in the 1990s did require a five-day hearing which was “all about” appealing the ALS.  There was no language in that statute such as, “regardless of whether the person’s driver’s . . . license . . . is or is not suspended,” as we have in the current statute.  The five-day hearing and the ALS appeal were more closely linked in the old days.  Indeed, the only appeal of the ALS was at the initial appearance.

I.  Changed Legislative Intent

            The fact that we have the “regardless of whether the person’s driver’s . . . license . . . is or is not suspended” language in the current statute means the five-day hearing isn’t any longer tied just to the ALS.  The compelling heart of the matter is that the legislature affirmatively changed the law to make it this way, by inserting the language conspicuously left out of the Columbus v. Rose quote.

            Yet another change diminishes the connection between the ALS and the five-day hearing.  Today, the ALS appeal can be initiated up to thirty days after the initial appearance.[18]  So the five-day hearing is no longer essential to the ALS appeal.  The five-day hearing isn’t just about the ALS.  Not anymore.

J.  Initial Appearance is More Than an ALS Appeal

            Bockstiegel doesn’t disagree that the ALS can be appealed at the initial appearance.[19]  Many defendants don’t appeal the ALS—or even ask for limited privileges—at the initial appearance, because they know the court wouldn’t approve or because there is still a period of “hard suspension” to get through.  But the Columbus v. Rose court acts as if the ALS matter is all that is addressed at the initial appearance.  In fact, the main order of business at the arraignment (usually the initial appearance) has to do with the criminal aspects of the case:  a laundry list of procedures under Traffic Rules 8 and 10 and Criminal Rules 5, 10, and 11, along with the mandatory raising of certain defenses and objections under Traffic Rule 11(B)(1).  Often the entire criminal case—plea through sentencing—can be concluded at the initial appearance.

K.  Civil vs. Criminal Distinction Doesn’t Help

            Bockstiegel also doesn’t disagree that—with a little tortured logic—we can characterize the ALS as a civil remedy.  But that distinction doesn’t give us much guidance here.  The Columbus v. Rose court, when carefully scrutinized, can be seen as trying hard to make something of that distinction in this fallacious syllogism:  1) The state missed the five-day deadline; 2) DUI has both civil and criminal aspects; 3) Therefore only the civil part will be dismissed.

            What if the defendant were charged with a DUI but no ALS were issued?  This could happen if he wasn’t actually arrested, he had been on private property, he wasn’t offered any chemical test, he passed the breath test, or the urine test result is pending.  If the only reason for the five-day hearing were to allow an ALS appeal, then there would be no deadline to bring the non-suspended DUI defendant to court.[20]  But the General Assembly must have thought of that.  That’s why they added language to the statute expressing the intent that there must be a five-day hearing, “regardless of whether the person’s driver’s . . . license . . . is or is not suspended.”

L.  The State Can’t Show Prejudice or Substantial Injustice

            Demonstrating error isn’t sufficient.  The state must also show that the error was prejudicial and inconsistent with substantial justice.[21]  It can’t do that where the dismissal is without prejudice.

M.  Columbus v. Rose May be Distinguishable and is Not Controlling

            Whether or not Columbus v. Rose comes from an old dog that won’t learn new tricks, it certainly is not binding on this Court.  Perhaps it can be distinguished.  It decided a case based on a violation of Columbus Municipal Code 2133.01 [22] not RC 4511.19, as in the present case.  The Columbus ordinance far from perfectly tracks RC 4511.19 and its related statutes.  For example, the Columbus DUI ordinance has no felonies and no look-back period limitation for penalty enhancement because of prior offenses (except a 20-year look-back for refusal cases).  And Mr. Rose wasn’t represented by counsel.

N.  State v. Barnell is Distinguishable and Unpersuasive

            State v. Barnell[23] is a very old and obtuse case relied on by the municipal court case of State v. Gibson,[24] cited by the state.  Barnell can be easily distinguished.  It didn’t involve issues of a citizen’s freedom, criminal record, or driving privileges.  In fact it wasn’t even a criminal case.  It involved a writ of mandamus, with complex issues regarding separation of powers, interpretation of a city charter, fine distinctions between judicial and administrative duties of a public service director, and diminishing the employment-at-will doctrine, all as they pertain to civil service regulations.

            If the deadline held to be merely directory or discretionary in Barnell were to have been enforced, the public service director would have been forever banned from reviewing an employee’s suspension for fairness.  Such a permanent prohibition from taking action would not result in the present case, as the dismissal here is without prejudice.  The state would merely need to refile the DUI charges.

O.  In re Davis is Distinguishable and Unpersuasive

            In re Davis[25] is also relied on by Gibson and is quite distinguishable.  Like Barnell, Davis was not a criminal case involving criminal penalties and deprivation of liberty.  In Davis, the deadline considered directory rather than mandatory was designed to compel a court to make a timely decision.  There, if missing the deadline were to deprive the court of jurisdiction, it might actually encourage a slothful jurist to be derelict in his duty.  And if the court were deprived of jurisdiction, there would be no way for the litigants to resolve their dispute.  Significantly, the Davis court found that the delayed litigants waived their right to protest, because they had ignored a simple remedy for enforcing the deadline.  The litigants waited until the court had made an adverse decision before protesting the delay.

            In the case at bar, it’s not the court missing a deadline that deprives it of jurisdiction.  It’s the dereliction of one of the parties that does so.  The state should be estopped from protesting the enforcement of the deadline, because the state has control over the issue.  The state could have followed the simple rule of citing Bockstiegel to court within five business days.  And unless the state sits on its hands for the full statute of limitations period, the court’s jurisdiction is far from permanently withheld.

            Davis is further distinguished from the present case by its own limiting dicta.  Davis reasoned that a deadline for the performance of an act by a public official is less likely to be mandatory, where the time constraint is “simply for convenience or orderly procedure.”[26]

            The present case deals with law enforcement officers, not with what would ordinarily be designated as “public officials.”  Even the state in the present case concedes that the purpose of the five-day deadline isn’t “simply for convenience or orderly procedure.”  The state argues that the purpose is to timely allow a defendant to appeal an ALS and to allow the state to seek a threat-to-public-safety suspension.  (Bockstiegel would add that speedy justice in general and due process in particular for DUI prosecutions are additional benefits the legislature indubitably recognized when recently revising the statute to expressly expand applicability of the deadline.)

P.  The Two Leading Ohio Supreme Court Cases Are Irresistible

            Dorrian v. Scioto Conservancy Dist.[27] has perhaps the most straightforward, sensible Supreme Court of Ohio pronouncement on the central issue here.  It’s relied on not only by Davis, but also by the trial court in the current case.  Here is syllabus paragraph one from Dorrian:

 

In statutory construction, the word "may" shall be construed as permissive and the word "shall" shall be construed as mandatory unless there appears a clear and unequivocal legislative intent that they receive a construction other than their ordinary usage.

 

The legislature’s current intent is clear:  Require a hearing within five days in all DUI cases.  But even if there remained some vestigial legislative intent to limit the five-day deadline to cases where there’s an ALS, that intent is certainly not clear and unequivocal, as Dorrian would require.

Trumping all the lower court cases, the most recent pronouncement by the Supreme Court of Ohio that shall means shall is not only a criminal case; it’s a DUI case.  Discussing the use of the word “shall,” State v. Burnside, holds:  “This language does not advise the [act]; it demands it.”  [Emphasis added.][28]

Q.  We Don’t Want to Leave Ohio’s Legal World as Messy as We Found It

Not all lawyers and judges want to live in an embarrassing legal world where shall sometimes means may.  That’s why it’s emotionally satisfying to cut through tangled webs of the past and set the record straight.  For our courts, for our state, for our current citizens, and for our progeny, let’s say what we mean and mean what we say.

No court should ignore the new part of a statute, as did Columbus v. Rose.  No court should have to engage in tortured, circuitous reasoning, as did State v. Gibson.  Refreshingly, the court below made a simple, logical, practical, and eloquent plea for clarity and honesty.  Speaking on the record about State v. Gibson, Judge Rucker pointed out that Gibson takes “seven pages of decision to justify how shall does not actually mean shall, but could mean may.  And that . . . even though shall sounds like it’s mandatory, . . . it could be discretionary.”[29]

APPELLANT’S Second Assignment of Error

            The court erred as a matter of law when it dismissed Bockstiegel’s administrative license suspension.

 

Issue Presented for Review and Argument

 

                        The court cannot err in “dismissing” an ALS where the record reflects neither that an ALS was ever imposed, nor that the court has even addressed the issue of an ALS.

A.  It’s Not About an ALS

            Bockstiegel’s motion was entitled, “Motion to Dismiss DUI and Terminate Administrative License Suspension.[30]  Beyond that, the motion and memorandum expended all of fifteen words on the subject of terminating an ALS.  These limited references to an ALS in Bockstiegel’s written motion were included by counsel in error.  They were leftovers from earlier drafts of the motion used in cases where there actually were administrative license suspensions.  Apologetic for causing any confusion, Bockstiegel would humbly move to withdraw those references.  Beyond the written motion, there are no references to an ALS imposed upon Bockstiegel in the record, in Bockstiegel’s oral argument before the court, or in the court’s decision on the record to dismiss the DUI charges.

B.  An ALS Was Not Dismissed

            The state did obliquely refer to an ALS in its oral argument to the court.[31]  The state appears to have asserted that if there had been an ALS, it should be terminated (but the DUI charges should not be dismissed).  The state’s second assignment of error and its corresponding issue for review state that the court dismissed Bockstiegel’s ALS.  But nowhere in the record is it implied that an ALS was dismissed.

            If there were an ALS, the court could theoretically terminate it, set it aside, refuse to enforce it, vacate it, modify it, or stay it.  But it would be awkward to say that a court “dismissed” an ALS, even if such a suspension had been in place.

C.  Only the DUI Charges Were Dismissed

            Indeed, Bockstiegel asked the court to dismiss his DUI charges.  And that’s all the court dismissed.  Bockstiegel didn’t ask the court to dismiss anything else.  Despite the state’s assertion in its brief that “[t]he court dismissed the ALS,” perhaps because the court “granted Bockstiegel’s motion to dismiss in whole,” the court did not dismiss—or take any other action concerning—an ALS.  The court simply stated, “[T]he motion to dismiss is granted.”[32]  That means that the DUI charges were dismissed.

D.  Feckless Arguments

            In arguing that an (imagined) ALS dismissal was premature, the state’s brief alludes to confusing speculation about who knew what and when.  But not one bit of those allegations is in the record.

            The state argues in its brief that a failure to hold a “preliminary hearing” within five days is not grounds to appeal an ALS.  While otherwise debatable, such an argument is irrelevant here, because nowhere in the record is there a reference to an imposed ALS, or to an appeal of one under RC 4511.197(C).  Finally, there’s no order of any kind concerning an ALS, let alone a final appealable order concerning one.

APPELLANT’S THIRD Assignment of Error

The court erred as a matter of law when it declared it did not have jurisdiction over Bockstiegel.

Issue Presented for Review and Argument

                        Non-compliance with a mandatory statute will render the proceedings to which it relates illegal and void.

 

            Missing the clear five-day statutory deadline is a deficiency that deprives the trial court of jurisdiction, just as where the citation fails to state an offense, where speedy trial time has expired, where a felony preliminary hearing is missed, where there’s defective service, or where there are double jeopardy prohibitions.

            But there is good reason beyond statutory command for bringing the defendant to court quickly.  Without speedy access to the court, due process is endangered.  Justice delayed is justice denied.

            In re Byrd, also from the Tenth District, is wiser than Columbus v. Rose:

 

It is axiomatic that the use of the word "shall," in a statute, denotes that compliance with the commands of the statute is mandatory, absent clear and unequivocal legislative intent to the contrary. State ex rel. Botkins v. Laws (1994), 69 Ohio St.3d 383, 385, 632 N.E.2d 897. Non-compliance with a mandatory statute will render the proceedings to which it relates illegal and void. In re Davis (1999), 84 Ohio St.3d 520, 522, 705 N.E.2d 1219, citing State ex rel. Jones v. Farrar (1946), 146 Ohio St. 467, 471-472, 66 N.E.2d 531. [Emphasis added.][33]

                       


 

V.  Conclusion

 

            For the foregoing reasons, the assignments of error raised by plaintiff-appellant are without merit.  The judgment in the court below should be affirmed.  The trial court should not be discouraged from wielding the sword of justice fairly, even when it cuts against the state.  This Court should make certain that our laws are interpreted fairly, using the ordinary, clear meaning of English words for better understanding.  Everyone will get the right message that laws ought to be respected and enforced.  Even though the state may want to have as much time as it likes to bring a DUI suspect to court, the legislature and the governor have spoken.  Bockstiegel urges this Court to join the growing number of lower courts that have recognized the change in the law of this statutory deadline.

                                                                                    Respectfully submitted,     

                                                                                    ______________________

Chuck Strain (0025860)

Attorney at Law

 

639 Main Street

Cincinnati, Ohio 45202-2514

Phone 513-621-2889

Fax 513-763-7704

Email DUIguy@earthlink.net

 

                                                                                    Counsel for Defendant-Appellee

 

VI.  CERTIFICATE OF SERVICE

            I certify that the foregoing document was served on the prosecutor by hand-delivery, addressed to Rachel Lipman Curran, Assistant Prosecuting Attorney, 230 East Ninth Street #4000, Cincinnati, Ohio 45202, on September 2, 2009.

                                                                                                                                                                                                                                                                                                              _____________________

                                                                                    Chuck Strain (0025860)

                                                                                    Counsel for Defendant-Appellee



[1] RC 4511.19(A)(1)(a) and RC 4511.19(A)(1)(f)

[2] T.d. 1

[3] T.d. 3

[4] T.d. 5

[5] T.d. 6

[6] T.d. 1

[7] T.d. 5

[8] The state also alleges no arrest at T.p. 14.

[9] T.d. 5

[10] T.d. 1

[11] T.d. 1

[12] T.d. 1

[13] State v. Burnside, 100 Ohio St.3d 152, 159, 2003-Ohio-5372, 797 N.E.2d 71.

[14]  RC 1.14. 

[15] (assuming that shall still means shall under Criminal Rule 45(A))

[16]  RC 2901.04(A). 

[17]  2007-Ohio-499, 10th Dist. Court of Appeals, February 6, 2007

[18]  RC 4511.197(A)

[19]  But many courts don’t allow the appeal to be heard at arraignment.  Rather, the matter is continued at the state’s request.  Or the ALS appeal must be separately filed, with court costs advanced, and set on a future (civil) docket.

[20]  Possible exceptions could be:  a) the speedy trial deadline, if the matter can actually be said to be pending in the court, and b) the preliminary hearing deadline, if a felony.  RC 2945.71.

[21] Knox v. Parking Co. (1st Dist. 1991), 73 Ohio App.3d 177, 189, 596 N.E.2d 1059, 1066

[22] See:  http://www.municode.com/Resources/gateway.asp?pid=16219&sid=35

[23] (1924), 109 Ohio St. 246, 142 N.E. 611

[24] 144 Ohio Misc.2d 18, 2007-Ohio-6069, 877 N.E.2d 1053

[25] (1999), 84 Ohio St.3d 520, 1999-Ohio-419, 705 N.E.2d 1219  

[26] Ibid., 84 Ohio St.3d 520, at 522

[27] (1971), 27 Ohio St.2d 102, 56 O.O.2d 58, 271 N.E.2d 834.

[28] 100 Ohio St.3d 152, 159, 2003-Ohio-5372, 797 N.E.2d 71.

[29] T.p. 20, 21

[30] T.d. 3 and 7

[31] T.p. 11, 13

[32] T.p. 22. 

[33]  2005-Ohio-3148, 05-LW-2749 (10th), quoting State v. Withrow, Franklin App. No. 03AP-999, 2004-Ohio-3699, at §6-7