State v. Noster

SUPREME COURT CASES

Laws-info.com » Cases » Ohio » 1st District Court of Appeals » 2011 » State v. Noster

State v. Noster

State: Ohio

Court: Ohio Southern District Court

Docket No: 2011-Ohio-2730

Case Date: 06/08/2011

Plaintiff: State

Defendant: Noster

Preview:[Cite as State v. Noster, 2011-Ohio-2730.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO,                                                                       :                  APPEAL NO. C-100660
                                                                                                        TRIAL NO. 10TRC-43844C
Plaintiff-Appellant,                                                                 :
                                                                                     D E C I S I O N.
vs.                                                                                  :
MEGAN NOSTER,                                                                        :
Defendant-Appellee.                                                                  :
Civil Appeal From:  Hamilton County Municipal Court
Judgment Appealed From Is:  Reversed and Cause Remanded
Date of Judgment Entry on Appeal:  June 8, 2011
John Curp, City Solicitor, Ernest F. McAdams, Jr., City Prosecutor, and Lura Clark
Teass, Assistant City Prosecutor, for Plaintiff-Appellant,
Jeffrey C. Meadows, for Defendant-Appellee.
Please note:  This case has been removed from the accelerated calendar.

OHIO FIRST DISTRICT COURT OF APPEALS
SYLVIA S. HENDON, Judge.
{¶1}   Defendant-appellant Megan Noster was arrested for operating a motor
vehicle while under the influence of alcohol  (“OVI”).    After stopping Noster and
transporting her back to the police department, Cincinnati Police Officer Barbara
Ruff read Noster the top section of BMV Form  2255 and requested that Noster
submit to a breath-alcohol-concentration test.   Noster refused to submit to this test.
Consequently, Noster was placed under a two-year administrative license suspension
(“ALS”).
{¶2}   Noster appealed her ALS to the trial court.   She argued that Officer
Ruff had failed to provide her with accurate information regarding the consequences
of refusing to submit to a breath test.   Specifically, she argued that the BMV form
contained inaccurate information regarding the length of the applicable suspension.
Under current law, Noster faced a two-year ALS because of a prior conviction.   But
the form provided to Noster indicated at the bottom that Noster only faced a one-
year ALS with her prior conviction.
{¶3}   The trial court found that  “the form consequences failed to include
notice of the BMV administrative suspension which are onerous consequences,” and
that Noster’s refusal had been defective.  The trial court then vacated Noster’s ALS.
{¶4}   The city has appealed from the trial court’s order vacating Noster’s
ALS.   In its first two assignments of error, the city argues that the trial court erred in
finding that BMV Form  2255 failed to advise and adequately warn Noster of the
consequences of refusing to submit to a breath test.   We address these assignments
together.
2

OHIO FIRST DISTRICT COURT OF APPEALS
{¶5}   R.C.                                                                                    4511.192  concerns  submission  or  refusal  to  submit  to  tests
following an arrest for OVI.    Subdivision  (B) of the statute provides that, before
requesting  an  arrestee  to  submit  to  a  chemical  test,  an  officer  must  read  the
following:                                                                                     “You now are under arrest for [the specific offense for which the person
was arrested].   If you refuse to take any chemical test required by law, your Ohio
driving privileges will be suspended immediately, and you will have to pay a fee to
have the privileges reinstated. If you have a prior of OVI, OVUAC, or operating a
vehicle  while  under  the  influence  of  a  listed  controlled  substance  or  a  listed
metabolite of a controlled substance conviction under state or municipal law within
the preceding twenty years, you now are under arrest for state OVI, and, if you refuse
to take a chemical test, you will face increased penalties if you subsequently are
convicted  of  the  state  OVI*  *  *  If  you  take  a  chemical  test,  you  may  have  an
independent chemical test taken at your own expense.”
{¶6}   The language read by Officer Ruff from BMV Form 2255 was verbatim
the language contained in R.C. 4511.192(B).  The fact that BMV Form 2255 contained
incorrect information regarding length of suspension in a different section placed
lower on the form that was not read aloud to Noster is of no effect and does not
detract from the adequacy of the information provided to Noster concerning the
consequences of refusal.    In Bryan v. Hudson,1 the Ohio Supreme Court clearly held
that, when informing an arrestee of the consequences of refusing to submit to a
chemical test, an officer need not inform the arrestee of the exact length of the ALS
faced.
1 Bryan v. Hudson, 77 Ohio St.3d 376, 380, 1997-Ohio-261, 674 N.E.2d 678.
3

OHIO FIRST DISTRICT COURT OF APPEALS
{¶7}   In reaching its conclusion, the Hudson court noted the many factors
needed by an officer to determine the length of an ALS in a particular case.2   The
court stated that “[t]hese convoluted, detailed requirements are almost impossible to
assess  accurately  in  the  arrest  setting  and,  we  believe,  were  intended  by  the
legislature to be determinations made by a court at the time of the ALS hearing.”3
Contrary to Noster’s assertion, we find that these concerns noted by the Hudson
court are still relevant in today’s setting.
{¶8}   We hold that the arresting officer was not required to inform Noster of
the  exact  length  of  her  potential  ALS,  and  that  the  officer  complied  with  the
requirements of R.C. 4511.192(B) by reading the top portion of BMV Form 2255.
Noster was adequately informed of the consequences of refusing to submit to a
breath  test  and  the  trial  court  erred  in  concluding  otherwise.    The  first  two
assignments of error are sustained.
{¶9}   In its third assignment of error, the city argues that the trial court
improperly terminated Noster’s ALS.
{¶10}  R.C. 4511.197 governs the appeal of an ALS.   In such an appeal, the
trial court’s review is limited to determining whether one or more of the following
conditions have been met:   whether the arresting officer had reasonable grounds to
believe that the arrestee had been driving while under the influence of alcohol or
with a prohibited concentration of alcohol in the person’s blood, breath, or urine;
whether  the  defendant  was  placed  under  arrest;  whether  the  arresting  officer
requested that the arrestee submit to a chemical test; whether the arresting officer
informed the arrestee of the consequences of refusing or submitting to a chemical
2 Id.
3 Id.
4

OHIO FIRST DISTRICT COURT OF APPEALS
test;  and  whether  the  arrestee  either  refused  to  submit  to  a  chemical  test  or
submitted  to  the  test and  failed  it.4    If  the  trial  court  finds  that  each  of  these
conditions has been met, the ALS must be upheld.
{¶11}  In this case, the trial court found that Noster had not been informed of
the consequences of refusal.   We have already determined that this finding was in
error.    The  trial  court  made  no  other  findings  in  its  entry  with  respect  to  the
conditions listed above.   And the city failed to file a transcript of the proceedings
before the trial court, so this court cannot determine whether the trial court was
presented with evidence concerning the remaining conditions.   Nor can we review
whether these conditions were met.   Consequently, we remand this case for the trial
court to conduct a hearing to determine whether, pursuant to R.C. 4511.197(C), the
necessary conditions have been met to uphold Noster’s ALS.   On remand, the trial
court must accept our determination that the arresting officer adequately informed
Noster of the consequences of refusal.
{¶12}        Should the trial court find that each condition in R.C. 4511.197(C)
has been met, the court must then determine the length of Noster’s ALS.    Then
Noster’s argument with respect to the incorrect information on BMV Form  2255
becomes relevant.   Specifically, the court must determine whether Noster is subject
to a two-year ALS based on her prior conviction, or whether, because of the incorrect
language on BMV Form 2255, only a one-year ALS may be imposed upon Noster.
The third assignment of error is accordingly sustained.
{¶13}  The judgment of the trial court is reversed, and this cause is remanded
for further proceedings in accordance with this decision.
4 R.C. 4511.197(C).   See, also, Eastlake v. Komes, 11th Dist. No. 2009-L-096,  2010-Ohio-2411,
¶¶16-17.
5

OHIO FIRST DISTRICT COURT OF APPEALS
Judgment reversed and cause remanded.
DINKELACKER, P.J., and SUNDERMANN, J., concur.
Please Note:
The court has recorded its own entry on the date of the release of this decision.
6

Download 2011-ohio-2730.pdf