State v. Savage

397 N.E.2d 1205, 60 Ohio App. 2d 394, 14 Ohio Op. 3d 361, 1977 Ohio App. LEXIS 7126

• Court: Ohio Court of Appeals
• Decided: October 25, 1977
• Docket: 1496
• Status: Published

Opinion

Mahoney, P. J.

The state appeals a judgment of the Wayne County Municipal Court dismissing a charge of driving under the influence of alcohol (R. C. 4511.19) against the defendant, Joseph Savage, for a failure to serve a copy of the charge upon him as provided by Traf. R. 3(E). We reverse.

Savage was operating a motor vehicle when he was stopped by State Patrolman Carpenter. Carpenter had him per form some field tests and then took him to the patrol post for a breathalyzer test. The defendant was arrested, posted bond and told to pick up a copy of the ticket at the patrol post. He never picked it up.

The defendant entered a plea of not guilty, filed a jury demand and appeared for trial. At that time, he moved for a dismissal under Traf. R. 11 because he was not served with the traffic citation by the officer.

We hold that the plea of not guilty was an appearance before the court and constituted a waiver of any objection he might have had to the exercise of personal jurisdiction over him. The lack of service was a defect in the institution of the proceeding which should have been raised by a motion to dismiss prior to the plea of not guilty.

Accordingly, we reverse the judgment of the trial court and remand this cause for a trial upon the merits.

Judgment reversed and cause remanded.

Bell, and Victor, J J., concur.