Kain v. McCullion

Ohio Court of Appeals

Kain v. McCullion

521 N.E.2d 460, 36 Ohio App. 3d 116, 1987 Ohio App. LEXIS 10515

CourtOhio Court of Appeals

DecidedOctober 7, 1987

Docket2266

StatusPublished

Cited by1 cases

This text of 521 N.E.2d 460 (Kain v. McCullion) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kain v. McCullion, 521 N.E.2d 460, 36 Ohio App. 3d 116, 1987 Ohio App. LEXIS 10515 (Ohio Ct. App. 1987).

Pincite

Opinions

Quillin, P.J.

Robert L. Kain appeals the trial court’s decision upholding the suspension of his driver’s license for refusal to submit to a chemical test. We affirm.

Assignment of Error I

“The trial court erred as a matter of law by holding that the petitioner was advised of the consequences of his refusal in accordance with Section 4511.191(C) of the Ohio Revised Code.”

Kain argues that the written advice form was not read to him in the presence of the arresting officer and another qualified witness as required by R.C. 4511.191(C). The arresting officer showed and read to Kain the written advice form. As was her duty, a cadet officer in another room witnessed the advice and refusal by means of an intercom and a closed-circuit television. The witness certified this fact by signing the form. Kain asserts that the statute requires the witness’ physical presence in the same room as the suspect and the person reading the form. Kain supplies us with no authority to support his proposition, nor do we read the statute to require physical presence. No reason has been advanced why the purpose of the statute has not been fully satisfied.

The assignment of error is overruled.

Assignment of Error II

“The trial court erred as a matter of law by holding that petitioner-appellant refused to submit to a BAC Verifier Test under the provisions of Section 4511.191(D) of the Ohio Revised Code.”

Sometime after Kain refused to take a chemical test, the arresting officer discovered that the BAC verifier machine was not working. Kain argues that, because the officer could not have given the test on that particular machine, the lower court erred in finding that he had refused.

Even though the officer could not have given Kain a breath test on the machine in the station, other means of chemical testing were available if Kain had not refused to be tested. We therefore agree with the trial court that Kain did not sustain his burden of establishing by a preponderance of the evidence that the Registrar of Motor Vehicles erred in suspending his license. Hoban v. Rice (1971), 25 Ohio St. 2d 111, 116, 54 O.O. 2d 254, 256, 267 N.E. 2d 311, 314-315.

The judgment of the trial court is affirmed.

Judgment affirmed.

*118 Cacioppo, J., concurs in judgment only. Mahoney, J., dissents.

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Quillin, P.J.

Robert L. Kain appeals the trial court’s decision upholding the suspension of his driver’s license for refusal to submit to a chemical test. We affirm.

Assignment of Error I

“The trial court erred as a matter of law by holding that the petitioner was advised of the consequences of his refusal in accordance with Section 4511.191(C) of the Ohio Revised Code.”

Kain argues that the written advice form was not read to him in the presence of the arresting officer and another qualified witness as required by R.C. 4511.191(C). The arresting officer showed and read to Kain the written advice form. As was her duty, a cadet officer in another room witnessed the advice and refusal by means of an intercom and a closed-circuit television. The witness certified this fact by signing the form. Kain asserts that the statute requires the witness’ physical presence in the same room as the suspect and the person reading the form. Kain supplies us with no authority to support his proposition, nor do we read the statute to require physical presence. No reason has been advanced why the purpose of the statute has not been fully satisfied.

The assignment of error is overruled.

Assignment of Error II

“The trial court erred as a matter of law by holding that petitioner-appellant refused to submit to a BAC Verifier Test under the provisions of Section 4511.191(D) of the Ohio Revised Code.”

Sometime after Kain refused to take a chemical test, the arresting officer discovered that the BAC verifier machine was not working. Kain argues that, because the officer could not have given the test on that particular machine, the lower court erred in finding that he had refused.

Even though the officer could not have given Kain a breath test on the machine in the station, other means of chemical testing were available if Kain had not refused to be tested. We therefore agree with the trial court that Kain did not sustain his burden of establishing by a preponderance of the evidence that the Registrar of Motor Vehicles erred in suspending his license. Hoban v. Rice (1971), 25 Ohio St. 2d 111, 116, 54 O.O. 2d 254, 256, 267 N.E. 2d 311, 314-315.

The judgment of the trial court is affirmed.

Judgment affirmed.

*118 Cacioppo, J., concurs in judgment only. Mahoney, J., dissents.

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521 N.E.2d 460, 36 Ohio App. 3d 116, 1987 Ohio App. LEXIS 10515, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kain-v-mccullion-ohioctapp-1987.

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