Village of Johnstown v. Howard, Unpublished Decision (11-8-1999)
Village of Johnstown v. Howard, Unpublished Decision (11-8-1999)
Opinion of the Court
OPINION
Defendant David Howard appeals a judgment of the Municipal Court of Licking County, Ohio, convicting and sentencing him for one count of operating a motor vehicle while under the influence of alcohol, in violation of R.C.THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION BY DENYING BRANCH 2, MOTION FILED 02/16/99 BY APPELLANT (I.E. STOP SIGN CHARGE)
THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION BY FINDING APPELLANT GUILTY OF A MUNICIPAL EQUIVALENT OF R.C.
THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION BY DENYING APPELLANT'S MOTION FILED 02/16/99.
At the motion to suppress, the State presented the evidence of Officer John Mielke, who testified on December 20, 1998, he was a police officer in the Village of Johnston, Licking County, Ohio. Officer Mielke testified he observed appellant turn from South Oregon Street left onto Pratt Street without stopping at the stop sign. The officer testified he was some or five houses behind appellant's vehicle, and there were no obstructions between the two vehicles. The officer further testified he drove up to the stop sign and turned to see where appellant had gone. The officer found appellant had turned into a businessman's parking lot, so the officer pulled in behind him and turned on his light bar. At some point, the officer asked appellant to submit to a BAC test, and appellant agreed. The officer testified the machine gave a reading of .123, so the officer arrested the appellant for driving while under the influence. In response, appellant testified, as did his wife. Both appellant and his wife testified appellant stopped his vehicle at the stop sign.
For the foregoing reasons, the judgment of the Municipal Court of Licking County, Ohio, is affirmed, and the cause is remanded to that court for execution of sentence. By Gwin, P.J., Farmer, J., concur, Hoffman, J., concurs separately.
Concurring Opinion
I concur in the majority's decision to affirm the trial court's judgment. However, unlike the majority, I do not find appellant waived the error alleged in his first and second assignments of error. Traf. R. 11(B)(1)(b) provides: (B) Motion before plea and trial
Any defense, objection, or request which is capable of determination without the trial of the general issue may be raised before plea or trial by motion.
(1) The following defenses and objections must be raised before plea:
* * *
(b) Defenses and objections based on defects in the complaint other than failure to show jurisdiction in the court or to charge an offense, which objections shall be noticed by the court at any time during the pendency of the proceeding.
Appellant's motion to dismiss claimed the complaint failed to charge an offense. As such, appellant was not required to raise it before his initial plea.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.