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State v. McKenzie

Court of Appeals of Ohio, Ninth District, Summit

December 20, 2017

STATE OF OHIO Appellant
v.
BRANDON S. MCKENZIE Appellee

         APPEAL FROM JUDGMENT ENTERED IN THE AKRON MUNICIPAL COURT COUNTY OF SUMMIT, OHIO CASE No. 17 TRC 04945

          EVE V. BELFANCE, Director of Law, GERTRUDE E. WILMS, Chief Prosecutor, and BRIAN D. BREMER, Assistant Director of Law, for Appellant.

          ELI HELLER, Attorney at Law, for Appellee.

          DECISION AND JOURNAL ENTRY

          CALLAHAN, JUDGE.

         {¶1} Appellant, State of Ohio, appeals from the judgment entered by the Akron Municipal Court, which granted Brandon McKenzie's motion to vacate his administrative license suspension ("ALS"). This Court reverses and remands.

         I.

         {¶2} Mr. McKenzie was arrested for two counts of operating a vehicle under the influence of alcohol or drugs ("OVI") and other offenses that are not relevant to this appeal. Because he refused to submit to chemical testing, Mr. McKenzie was issued an administrative license suspension. An ALS appeal hearing was never held. After a jury found Mr. McKenzie not guilty of the two OVI offenses, he filed a motion to vacate the ALS. The trial court granted the motion on June 14, 2017, which was the same day the motion was filed. The State subsequently filed a response, which the trial court found moot. The State now appeals, raising three assignments of error.

          II.

         ASSIGNMENT OF ERROR ONE

         THE TRIAL COURT'S ORDER VACATING MR. MCKENZIE'S ALS WAS VOID BECAUSE THE TRIAL COURT LACKED JURISDICTION OVER HIS ALS DUE TO HIS FAILURE TO APPEAL THE ALS.

         {¶3} In its first assignment of error, the State argues that, because Mr. McKenzie did not file a timely appeal of his ALS, the trial court lacked jurisdiction to rule on his motion and the order vacating the ALS is void. This Court disagrees.

         {¶4} Initially, we note that Mr. McKenzie has failed to file an appellate brief in this appeal. Thus, "[p]ursuant to App.R. 18(C), this Court may accept the [State's] statement of the facts and issues as presented in [its] brief as correct and reverse the judgment of the trial court if [the State's] brief reasonably appears to sustain such action." Bank of New York v. Smith, 9th Dist. Summit No. 21534, 2003-Ohio-4633, ¶ 2.

         {¶5} "Challenges to a trial court's jurisdiction present questions of law and are reviewed by this Court de novo." (Citations and quotations omitted). Wells Fargo Bank, NA v. Vasquez, 9th Dist. Medina No. 13CA0086-M, 2015-Ohio-717, ¶ 16.

         {¶6} "Pursuant to R.C. 4511.191(B), the Bureau of Motor Vehicles [] imposes a suspension upon a person who is arrested for OVI and who refuses to take the chemical test or who tests above the prohibited alcohol level." State v. Hollaender, 9th Dist. Wayne Nos. 12CA0040, ...


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