VED jNA, MA'( CLERK OF COIJRT LSUPR EME COURT OF OHIO MAY CLERK OF COURT. Case No IN THE SUPREME COURT OF OHIO

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1 IN THE SUPREME COURT OF OHIO 01110jNA, Paul Krooss, Appellant, Case No V. Judge Michael Murry, Appellee. On Appeal from the Greene County Court of Appeals, Second Appellate District MERIT BRIEF OF APPELLEE JUDGE MICHAEL MURRY Herbert Creech ( ) 200 F Jamestown Circle Dayton, Ohio (937) Fax (937) Herbert Creech@sbcglobal.net COUNSEL FOR APPELLANT, PAUL KROOSS MA'( VED CLERK OF COIJRT SUPREME COURT OF OHIO Ronald C. Lewis ( ) City of Xenia Law Director 101 N. Detroit Street Xenia, Ohio (937) Fax (937) rlewis@ci.xenia.oh.us COUNSEL FOR APPELLEE, JUDGE MICHAEL MURRY F MAY CLERK OF COURT LSUPR EME COURT OF OHIO

2 TABLE OF CONTENTS TABLE OF AUTHORITIES iii STATEMENT OF FACTS...1 ARGUMENT Proposition of Law No. I: Pa e A. The Xenia City Municipal Court, While a Court of Statutory Creation, Has General Jurisdiction Over Misdemeanors Occurring Within The Territory Defined by Statute, and Over Charges With a Territorial Connection to This Territory...4 B. A Writ Of Prohibition is an Extraordinary Remedy and Should Not Issue as the Jurisdiction of the Xenia Municipal Court is at least Ambiguous, Meaning Other Remedies are Available for the Appellant...7 Proposition of Law No. II: If it is necessary to decide a locus of court jurisdiction for an OVI citation, the locus should be at the first observed point of reasonable suspicion for the stop...11 Proposition of Law No. III: This is a Hypothetical Situation Not Based on the Facts of This Case and Should Not Be Argued Ilere, and is Rendered Moot by the Appellee's Response to the Second Proposition of Law...14 CONCLUSION PROOF OF SERV ICE APPENDIX Appx. Pace Police Report of Ohio State Trooper B.K. Mangin (July 6, 2008) i

3 TABLE OF CONTENTS (Cont'd.) Aprox. Pagg Impaired Driver Report (July 6, 2008) CONSTITUTIONAL PROVISIONS; STATUTES; RULES: Ohio Constitution, Section 18, Article IV...3 R.C R.C R.C R.C Crim. R. 1(B) ii

4 TABLE OF AUTHORITIES CASES: Page Boles v. McCracken, (2007) 2007-Ohio , 10 Cheap Escape Company, Inc. v. Haddox, (2008) 120 Ohio St.3d , 6 City of North Ridgeville v. Stack (2006) Ohio , 14 Krooss v. Murray, (2009) 2009-Ohio-214, Ohio App 2 Dist...passim State v. Davis, (2006) Ohio State v. Currens, (1989) 55 Ohio Misc.2d 3, 563 N.E.2d State ex rel. Chaputa v. Weaver, (1955) 100 Ohio App , 14 State ex rel. Furnas v. Monnin, (2008) 120 Ohio St.3d State ex rel. Henry v. Britt (1981), 67 Ohio St.2d 71, State ex rel. Lester v. The Court of Common Pleas, Division ofdomestic Relations, Butler County (Oct. 28, 1991)...11 State ex rel. Plant v. Cosgrove, (2008) 119 Ohio St.3d 264, 2008-Ohio State ex rel. Sapp v. Franklin Cty. Court ofappeals, (2008) 118 Ohio St.3d 368, 2008-Ohio-2637, 889 N.E.2d :...7 State v. Gerling, (1991) 76 Ohio App.3d 576, 602 N.E.2d State v. Human, (1978) 56 Ohio Misc. 5, 381 N.E.2d , 9, 10 State v. Schooler, (2004) Ohio State v. Veal, (1977) 51 Ohio Misc. 61, 366 N.E.2d The Leatherworks Partnership v. Stuard, (2002) 11`h Dist. No T-0017, 2002-Ohio , 8 ui

5 CONSTITUTIONAL PROVISIONS: Ohio Constitution, Section 18, Article IV...9 STATUTES: R.C , 5 R.C (B)...4, 9 R.C R.C (A)(1)...4, 9 R. C R.C , 11, 12 RULES: Crim. R. l(b) iv

6 STATEMENT OF FACTS At approximately 1:40 a.m. on July 6, 2008, Ohio State Trooper B.K. Mangin ("Trooper Mangin") was on duty traveling eastbound on Interstate 675, in the Township of Sugarcreek, Greene County. (Police Report of Ohio State Trooper B.K. Mangin, Appx. 1.) Trooper Mangin observed Paul Krooss ("Krooss" or "the appellant") operating a motor vehicle within the westbound lane of Interstate 675, within the Township of Sugarcreek, Greene County, at a higher rate of speed than the posted speed limit of 65 mph. Trooper Mangin activated his radar and received a target speed of 75 mph, which matched Trooper Mangin's visual estimation of the speed of Krooss's vehicle. Id. Trooper Mangin caught up to Krooss and followed him as he exited the Interstate onto Wilmington Pike. Trooper Mangin turned on his lights and pulled Krooss over to the right hand side of Wihnington Pike. Id. Wilmington Pike is the dividing line between Greene and Montgomery Counties. The northbound lane of Wilmington Pike is located in Greene County and the southbound lane is located in Montgomery County. When Krooss stopped his vehicle he was in the southbound lane of Wilmington Pike, which is located in Montgomery County. After Trooper Mangin pulled Krooss over he told Krooss that he had stopped him for speeding. As Trooper Mangin was talking with Krooss, Trooper Mangin noticed that Krooss's eyes were slightly red and there was a strong odor of alcohol on Krooss's breath. Id. Trooper Mangin asked Krooss how much he had to drink that night to which Krooss replied that he had one beer 3 hours ago. Id. At that point, Trooper Mangin asked Krooss to exit his vehicle and perform a few sobriety tests. 1

7 When Krooss exited the vehicle he had no shoes on and Trooper Mangin advised him to put shoes on so he did not hurt his feet. Id. Trooper Mangin asked Krooss to walk to the rear of Trooper Mangin's vehicle, but Krooss said that the lights hurt his eyes. Trooper Mangin had Krooss face away from the lights and asked him if he had any injuries that he should know about. Id. Krooss infonned Trooper Mangin of several injuries but that he was not seeing a doctor currently nor was he prescribed any medication. (Impaired Driver Report, Appx. 2.) Krooss mentioned that he had broken his neck twice awhile ago, had dislocated disks in his back, a crushed vertebrate, and had pain in his shoulder, neck, and lower back, but that he walked and worked out all the time. Id. As Trooper Mangin began to explain the Horizontal Gaze Nystagmus (HGN) test, Krooss stated that he had a natural nystagmus along with welder's blindness causing him to wear sunglasses 24/7. While Krooss was not wearing sunglasses when he was pulled over, he did indicate he could not take the HGN test, which was not administered. (Appx. 1.) Trooper Mangin then asked Krooss if he could stand on one foot but Krooss said that he could not due to his injuries. Id. Next, the Trooper Mangin asked Krooss if he could walk in a straight line, which Krooss said he could. As the trooper had Krooss stand with his left toe touching his right heel Krooss fell from the line twice. Id. After Krooss fell from the line for the second time be said that he would not be able to perform the test due to his injuries. Krooss then asked if he could take a breath test because he could not take and pass the sobriety tests. Trooper Mangin offered Krooss a preliminary breath test (PBT), on which Krooss blew a.135. Id.

8 After Krooss took the PBT Trooper Mangin placed Krooss under arrest, searched him, placed him in the rear of Trooper Mangin's vehicle and read Krooss his rights. Id. Trooper Mangin then performed an inventory search of Krooss's vehicle and nothing was found. Id. Krooss was taken to the Sugarcreek Police Department in Greene County, where Krooss was offered to take a breath test, which Krooss submitted to and blew a.128 on the BAC Data Master. Id. At the station, Krooss was charged with speeding and OVI violations and was cited to the Xenia Municipal Court on these charges Id. A final pretrial was set for December 8, 2008 along with a trial to a jury on December 11, 2008 in the Xenia Municipal Court with Judge Michael Murry presiding. On November 24, 2008 Krooss filed a petition for writ of prohibition in the Second District Court of Appeals in Greene County, Ohio, seeking to prohibit Judge Murry and the Xenia Municipal Court from exercising jurisdiction over Krooss. Krooss's writ of prohibition is based on the argument that his OVI should be tried in Montgomery County despite the fact that Krooss was only in Montgomery County for a brief moment and his speeding, which was the reason for the stop, occurred in Greene County. The Second District Court of Appeals in Greene County declined Krooss' writ of prohibition, at which point Krooss appealed to the Supreme Court of Ohio. (Krooss v. Murray, Ohio-214, Ohio App 2 Dist. (2009).) 3

9 RESPONSE TO APPELLANT'S FIRST PROPOSITION OF LAW Proposition of Law I: In the State of Ohio, Municipal Courts are creatures of statute and are not courts of general jurisdiction. A. The Xenia City Municipal Court, While a Court of Statutory Creation, Has General Jurisdiction Over Misdemeanors Occurring Within The Territory Defined by Statute, and Over Charges With a Territorial Connection to This Territory. Xenia Municipal Court is a court of statutory authority created under R.C and properly seated in Xenia, Greene County, Ohio, R.C (B) states "The Xenia municipal court has jurisdiction within Caesarcreek, Cedarville, Jefferson, Miami, New Jasper, Ross, Silvercreek, Spring Valley, Sugarcreek, and Xenia townships in Greene County." It is undisputed that the appellant was first observed driving within Sugarcreek Township in Greene County. While the Xenia Municipal Court is a court of territorial, or geographically limited general subject matter jurisdiction, the charges against the appellant are for events that occurred within Sugarcreek township and are thus within the territorial limits established in R.C (B). R.C establishes jurisdiction for the Xenia Municipal Court over misdemeanors within the territory established in (B). Section (A)(1) states "The municipal court has jurisdiction of the violation of any ordinance of any municipal corporation within its territory, [...] and of the violation of any misdemeanor committed within the limits of its territory." The appellant was charged with Operating a Vehicle while under the Influence of alcohol (OVI), as codified in R.C , a misdemeanor. 4

10 Krooss was clearly driving-operating his vehicle- in Greene County when spotted speeding by Trooper Mangin. There is no evidence of continued or further intoxication between the time Trooper Mangin spotted Krooss and pulled him over. Indeed, Krooss stated he had not been recently drinking, his blood alcohol level (BAL) as tested at the time of the stop (.135) was well over the legal limit, and there is nothing in the record indicating the presence of alcohol or of any attempts to abandon evidence of it before the stop. Because the events for which the appellant was charged occurred within the Xenia Court's geographically defined territory, and the charge is a misdemeanor over which the Court has general jurisdiction, the Xenia Municipal Court has jurisdiction to try appellant on this charge. In addition, this Court has recently examined the limits of municipal court jurisdiction under R.C in Cheap Escape Company, Inc. v. Haddox, LLC., (2008 Ohio 6323 (2008)). Haddox held that a municipal court also had jurisdiction where there is a clear territorial connection to the court's statutorily defined territory, and was relied on by the Second District Court of Appeals in its decision. (Krooss v. Murry, 2009-Ohio- 214, Ohio App 2 Dist. (2008).) The Second District Court noted that at the very least there appears a clear territorial connection between the stop in Montgomery County (where the evidence of intoxication was collected) and the reasonable suspicion for the stop (speeding) in Greene County. (Id. at 13.) While it is true that Haddox deals with a civil case, the Court's interpretation of the statutory language applies here as well. Haddox deals with meaning of "within its 5

11 territory" in the interpretation of R.C , and makes note of the same language in R.C (Haddox, at 18), where, if anything, the language is even more clear. In Haddox, this Court determined that the phrase "within its territory" dealt with "actions or proceedings that have a territorial connection to the court." (Haddox, at 22.) The Second District Court of Appeals, in denying appellant's motion for the writ of prohibition, noted that the actions for which appellant was being charged at least "appear to have a territorial connection to Greene County." (Krooss v. Murray, at 13). Thus Xenia Municipal Court's jurisdiction in this case is further supported because of the clear territorial connection of events in Montgomery County (the collection of evidence of intoxication) to events which occurred within Sugarcreek Township in Greene County (operation of a vehicle while intoxicated, or the OVI charge). As noted above, Xenia Municipal Court has jurisdiction over this territory. The appellant cites numerous cases where it was held that a municipal court lacked jurisdiction to hear a case; however, in all of these cases the offense occurred entirely outside of the court's statutorily defined territorial jurisdiction, e.g., City ofnorth Ridgeville v. Staclc, 2006 Ohio 1177 (2006); Chaputa v. Weaver, 100 Ohio App. 513 (1955), and a municipal court's lack of jurisdiction on the Ohio River, see, e.g., State v. Currens, 55 Ohio Misc. 2d 3(1989); State v. Gerling, 76 Ohio App.3d 576(1991). Several cases used by the appellant were cases dealing with a court's lack of jurisdiction on cases involving newly created statutory courts., see, e.g., State v. Human, 56 Ohio Misc. 5 (1978); State v. Veal, 51 Ohio Misc. 61(1977), and in one case the issue was of a law not yet enacted not the courts jurisdiction. See State v. Davis, 2006 Ohio 6399 (2006). 6

12 Lastly a case dealt with double jeopardy and a municipal courts lack of jurisdiction to hear felony cases. See State v. Schooler, 2004 Ohio 2430(2004). While it is emphatically true that a municipal court cannot preside over a case where the events take place outside its geographically limited subject matter jurisdiction, that is simply not the case here, as elaborated above. Here the offense was committed within the territorial jurisdiction of the Xenia Municipal Court. It is also worth noting that in the cases just mentioned all arose from appeals after a trial. B. A Writ Of Prohibition is an Extraordinary Remedy and Should Not Issue as the Jurisdiction of the Xenia Municipal Court is at least Ambiguous, Meaning Other Remedies are Available for the Appellant. For a writ of prohibition to issue these requirements must be met: (1) the respondent against whom it is sought is about to exercise judicial power, (2) the exercise of such power is unauthorized by law, and (3) there is no adequate remedy at law. (State ex rel. Furnas v. Monnin, 120 Ohio St.3d 279, (2008); Boles v. McCracken, 2007-Ohio ) Where jurisdiction is patently and unambiguously lacking, a relator "need not establish an adequate remedy at law because the availability of alternate remedies like appeal would be immaterial." (Krooss v. Murray at 7, quoting State ex rel. Sapp v. Franklin Cty. Court ofappeals, 118 Ohio St.3d 368, 2008-Ohio-2637, 889 N.E.2d 500.) The 11`h District Court of Appeals of Ohio has established a test for determining whether a jurisdictional defect is patent and unambiguous. This test is: [I]f there are no set of facts under which a trial court or judge could have jurisdiction over a particular case, the alleged jurisdictional defect will always be considered patent and unambiguous. On the other hand, if the court or 7

13 judge generally has subject matter jurisdiction over the type of case in question and his authority to hear that specific action will depend on the specific facts before him, the jurisdictional defect is not obvious and the court/judge should be allowed to decide the jurisdictional issue. The Leatherworks Partnership v. Stuard, 11 `t' Dist. No T-0017, 2002-Ohio-6477, at 19 (2002). The Second District Court of Appeals found much the same when they held that they "cannot say that the Xenia Municipal Court is "patently and unambiguously without jurisdiction" to hear this matter." Krooss v. Murray at 7. The Second District Court of Appeals' reasoning was that an adequate remedy does exist: an appeal, if proper jurisdiction is not established at trial. (R.C states that a municipal court must "prove the offense committed within the territorial jurisdiction of the court" thus making the establishment ofjurisdiction an element of the trial.) As noted by the Second District Court, the prosecutor in Xenia would be able to use the evidence of intoxication collected in Montgomery County to support the inference that Krooss was in violation of the OVI statute in Greene County. (Krooss v. Murray at 13.) On appeal, Krooss could challenge either (or both) the evidence or the jurisdiction of the court. The appellant makes much note of the fact that the Xenia Municipal Court is a court of statutory creation and "[i]n the absence of a patent and unambiguous lack of jurisdiction, a court having general subject-matter jurisdiction can determine its own jurisdiction, and a party contesting that jurisdiction has an adequate remedy by appeal." (Krooss v. Murray at 7, quoting State ex rel. Plant v. Cosgrove, 119 Ohio St.3d 264, 2008-Ohio-3838.) Appellant would apparently therefore argue that a statutorily created 8

14 court may not ever determine if it has the authority to hear a case where jurisdiction is ambiguous. While the Xenia Municipal Court is a court of statutory creation and is thus limited to a certain statutorily defined territory, within that territory it still has subject matter jurisdiction over whatever cases it is empowered by statute to hear. (See R.C (B) and (A)(1), quoted supra.) Further, the Second District Court of Appeals noted "Section 18, Article IV of the Ohio Constitution provides that a municipal court judge has `such power and jurisdiction, at chambers, or otherwise, as may be directed by law." (Krooss v. Murray, at 12.) Therefore, any appropriate cases that arise within the statutorily established territory-or have a territorial connection to events within that territory-are within the court's general subject matter jurisdiction. If jurisdiction within that territory is ambiguous the municipal court should still have authority to define jurisdiction, because there is a remedy by appeal. Appellant relies on State v. Human (381 N.E. 2d 969) for his assertion, but while Human does state that there "is no inherent jurisdiction in a municipal court" (Id. at 972), the case also states that a "municipal court has jurisdiction of the violation of [...] any misdemeanor committed within its territory." (Id., quoting R.C ) The confusion seems to arise froin the fact that a municipal court does lack any inherent jurisdictionuntil a statute creates that jurisdiction. Once this geographically limited general subject matter jurisdiction is created, the municipal court does have general subject matter jurisdiction over that limited area. To hold otherwise would create two standards; one for courts of general jurisdiction, which may define jurisdiction; and another for courts of statutory creation, 9

15 which presumably could not so define jurisdiction. It is far more logical to allow a court of statutory creation to define its own general jurisdiction where the case is feasibly within that court's territorial jurisdiction. In fact, the task of defining jurisdiction is easier for a statutory court, because the limits of its territory are already spelled out in the statute. Human also provides further guidance, in holding that the issue in criminal cases must be strictly construed. (Human, at 973.) Conversely, if a statutory court is not allowed to define its jurisdiction in cases of disputed or ambiguous territorial jurisdiction the result would be widespread uncertainly among municipal courts, leaving defendants only the remedy of a writ, as it was in this case. Cases of even slight territorial ambiguity could result in motions for writs of prohibition, and it is well established that a writ is intended to be an extraordinary remedy. (See State ex rel. Henry v. Britt (1981), 67 Ohio St.2d 71, 73; "Prohibition is an extraordinary remedy which is customarily granted with caution and restraint, and is issued only in cases of necessity arising from the inadequacy of other remedies," and Boles v. McCracken, 2007-Ohio-3431 at 3; "A writ of prohibition is an extraordinary writ that is not routinely or easily granted.") Such a policy would run counter to basic principles of judicial economy and evade the well established procedures of the appeals process. As described above, Xenia Municipal Court has jurisdiction over this case. Its jurisdiction is ambiguous, meaning that the party seeking the writ must show that there is no adequate remedy at law. As noted by the Second Court of Appeals in the decision below, there is an adequate remedy, an appeal. (Krooss v. Murray at 13.) In these cases, when a court has at least basic statutory jurisdiction to act and appeal is available, a 10

16 writ of prohibition will not lie. State ex rel. Lester v. The Court of Common Pleas, Division ofdomestic Relations, Butler County (Oct. 28, 1991). The appellant's motion for a writ of prohibition was therefore properly denied. RESPONSE TO APPELLANT'S SECOND PROPOSITION OF LAW Proposition of Law II: When a police officer subjects a motorist to a traffic stop at a particular location and thereupon observes, gathers and collects evidence which leads the officer to determine that the motorist is driving while intoxicated, the officer must cite the motorist into the Municipal Court with statutory geographical jurisdiction over the place where the stop occurred. A. If it is necessary to decide a locus of court jurisdiction for an OVI citation, the locus should be at the first observed point of reasonable suspicion for the stop. The offense of OVI consists of three elements designed to prevent the operation of motor vehicles in Ohio by persons who are under the influence of alcohol or other prohibited drugs. Individuals are prohibited from 1) operating a vehicle 2) within the state 3) while under the influence of alcohol or a drug of abuse. (R.C ) It must be noted that the appellant, based on the events noted in the record, could be charged with OVI in either the municipal courts of Montgomery or Greene County (but not both.) It is clear the appellant operated his vehicle in Greene County, where Trooper Mangin first observed him speeding, and that appellant also operated his vehicle in Montgomery County, for however brief a time, after he pulled onto Wilmington Pike and stopped there on the Montgomery County side of the county line. As noted above, 11

17 there is no evidence in the record to indicate the appellant became intoxicated (either by consumption of alcohol or by his blood alcohol level rising to just over the limit) in the very brief time he was driving in Montgomery County. This is then an unusual case where a defendant is potentially guilty of the same crime in two different court jurisdictions. The charge is the same in both courts, as is the penalty. (It is worth noting the Ohio OVI law is very specific as to fines, jail time, multiple offenses and so on, limiting the available discretion. See R.C ) The only issue, if it need be decided at all, is where to place the locus of jurisdiction for the purpose of deciding which court will hear the case. Only two jurisdictions are involved, which suggests a basic solution; either the citation should go to the jurisdiction of initial contact with the driver or to the jurisdiction at the end where the driver stops. The appellant argues that the controlling jurisdiction should be the one where the stop is finally made, but this is not optimal for reasons of public safety, public policy and judicial economy. If the locus of jurisdiction for the OVI violation is placed at the end with the stop, it allows uncontrollable variation into what is already a potentially hazardous situation. Obviously the reason for Ohio's OVI law is to prevent harm to both intoxicated drivers and those innocent victims wbo may cross their paths. There is real danger in the simple fact that placing the locus of jurisdiction at the end with the stop could encourage a driver who is already not thinking clearly to continue driving in hopes of getting to a "better" jurisdiction, with all the added risks that entails. If the locus of jurisdiction for the OVI is placed at the beginning where the officer first observes the driver then any such risk is removed. 12

18 Since OVI law is rooted in public safety, it is also sound public policy to place the locus of jurisdiction at the earliest point, where the officer first encounters the driver. This minimizes the chance that more time might pass before the stop; less time means less risk of anything tragic happening, and less confusion as to which jurisdiction the citation should issue. There would be no chance for any speculation about a "better" jurisdiction or any type of forum shopping. Placing the locus of jurisdiction at the beginning also makes sense from the standpoint of judicial economy and efficiency. (See Crim. R. 1(B); which states in part that the rules will be applied to secure "the elimination of unjustifiable expense and delay.") Here, as in many OVI stops, Trooper Mangin's first indication of a problem was defendant's excessive rate of speed. His subsequent stop for the speeding violation resulted in the evidence of intoxication which resulted in appellant's OVI charge. It makes little sense to place the speeding charge in Greene County and the OVI charge in Montgomery County when they resulted from the same chain of events. As noted above, appellant was operating his vehicle in alleged violation of the OVI statute in both jurisdictions. Only the evidence was collected in Montgomery County, and as suggested by the Second District Court of Appeals, this can be used to create the inference of an OVI violation in Greene County. (Krooss v. Murray at 13.) It makes little sense, with violations in both jurisdictions, to select the one that will result in two trials instead of one. Placing the locus of jurisdiction at the beginning, where the officer first has reasonable suspicion for the stop, eliminates this redundancy. It must be noted at this point that the cases on which the appellant relies are all ones where the operation of the vehicle was always outside the jurisdiction of the 13

19 municipal court. In City of North N. Ridgeville v. Stack, (N. Ridgeville v. Stack, Ohio-1177) the police officer observed the driver from within the Municipal Court of Elyria's jurisdiction, but the defendant in that case was outside the Elyria Court's jurisdiction, driving in the City of Avon. [N. Ridgeville at 2.] While there is a similarity in having the jurisdictional line very close to the stop, in N. Ridgeville the defendant never crossed the jurisdictional line; this distinction was noted by the court below. ((Krooss v. Murray at ) The saine is true of Chaputa v. Weaver; the court lacked jurisdiction because the offense was committed outside its territory. (State ex rel. Chaputa, v. Weaver, Judge, 131 N.E.2d 451, 100 Ohio App. 513 at 515: [T]"he offense charged was not committed within the "territory" of the Municipal Court, but in Montgomery County.") In this case, Krooss clearly crossed the line from one jurisdiction into the other, resulting in a potential violation in both jurisdictions. RESPONSE TO APPELLANT'S THIRD PROPOSITION OF LAW Proposition of Law III: When a police officer follows a motorist through several contiguous municipal jurisdictions and finally stops the motorist at a location where he then determines to cite the motorist for driving while intoxicated, the motorist must be cited into the Municipal Court within whose geographical area of jurisdiction the following stopped and the evidence of intoxication first actually observed. A. This is a Hypothetical Situation Not Based on the Facts of This Case and Should Not Be Argued Here, and is Rendered Moot by the Appellee's Response to the Second Proposition of Law. 14

20 The facts set forth in this section are hypothetical and not part of the record in this case. It is thus unwise (and insulting to peace officers throughout the state) to speculate on what is a very unlikely scenario which implies an officer would follow a potentially intoxicated driver- at risk to himself and others- for the purposes of speculation as to jurisdiction or to engage in some form of forum shopping. Even if we do speculate on this imaginary chain of events, placing the locus of jurisdiction for the OVI charge at the first point of reasonable suspicion (as appellee urges in response to the Appellant's Second Proposition of Law, supra) eliminates the problem. There would be no need for deciding between multiple jurisdictions because the locus of jurisdiction would already be established at the beginning, with initial point of reasonable suspicion. CONCLUSION The events associated with this stop and subsequent OVI charge were located within the territorial jurisdiction of the Xenia Municipal Court as established by Ohio law, and the Xenia Municipal Court has jurisdiction to hear this case. Jurisdiction is at the very least ambiguous, which allows the Xenia Municipal Court to define jurisdiction in this case, subject to then establishing its territorial jurisdiction at trial. The appellant then has access to an adequate remedy on appeal. No writ of prohibition should issue. If the unusual facts of this case-which creates the potential for an OVI infraction in two jurisdictions-necessitate finding a locus of jurisdiction for the OVI offense, the logical finding is at the beginning, where reasonable suspicion first arises. This eliminates the risk to public safety that could arise from continued impaired diving, any 15

21 risk of speculation or a kind of forum shopping, and upholds the principle of judicial efficiency by ensuring that only one trial will be held. For these and the foregoing reasons, we ask that the jurisdiction of the Xenia Municipal Court in this matter be established and the ruling of the Second Court of Appeals be UPHELD. Respectfully submitted, kohald Lewis City of Xenia Law Director 101 N. Detroit Street Xenia, Ohio (937) Fax (937) rlewis@ci.xenia.oh.us COUNSEL FOR APPELLEE, JUDGE MICHAEL MURRY i 16

22 PROOF OF SERVICE I certify that a copy of this Merit Brief was sent by ordinary U.S. mail to counsel for appellant, Herbert Creech, 200 F Jamestown CirclcWayton, Ohip on May lq, ]d Lewis Cit^ of Xenia Law Director 101 N. Detroit Street Xenia, Ohio (937) Fax (937) rlewis@ci.xenia.oh.us COUNSEL FOR APPELLEE, JUDGE MICHAEL MURRY 17

23 STATEMENT OF FACTS: While on routine patrol on IS 675 in the Twp. of Sugarcreek, Greene County, I observed a vehicle traveling towards me at a higher rate of speed then the posted 65 MPH speed limit. I activated my radar and received a target speed of 75 MPH which matched my visual estimation as well as the audio putout. I turned my vehicle around followed this vehicle onto Wilmington Pike. I activated my overhead red and blue lights in order to have the vehicle stopped. I approached the car and told the driver as to why I had him stopped. I asked for his license and vehicle information in which he gave me. I asked him if he knew how fast he had been going and he said that he thought he was going roughly 70 MPH. He also said that he had just put newer tires on his truck and that they were larger then his old tires. I asked him where he was going and where he was coming from. He said that he was headed home and that he was coming from a friend's house. During my conversation with him I noticed a strong odor of an alcoholic beverage about his breath. I also noticed that his eyes were slightly red. I asked him how much he had to drink tonight and he said that he had one beer about 3 hours ago. I told him that I was going to have him exit the car in order to perform a few sobriety tests. He opened the door and started to get out. I noticed that he did not have any shoes or socks on so I told him that he might want to put on his shoes so that he did not hurt his foot on any rocks. He put on his shoes and I instructed him to walk back to the rear of my vehicle. He walked to the front of my vehicle and stopped. I told him again to walk to the rear of my vehicle. He made a comment that the lights hurt his eyes and I told him that I would have him face away from my lights. I asked him if he had any injuries that I should know about and that is when he listed the injuries that I have listed above. I started to explain the HGN test and that is when he said that he had a natural nystagmus in his eyes and that he also had welders blindness. He said that he wore sunglasses 24/7 because light hurt his eyes (he was not wearing them at the time of the stop). I then asked if he could stand on one foot but he said that he would not be able to due to his injuries. I asked him if he could walk in a straight line and he said that he could (he earlier stated that he walked and worked out all the time). I had him stand with his left toe touching his right heel and he fell from the line twice while I was started to explain my instructions. He said that he would not be able to perform that test either due to his injuries. He then asked if he could just take a breath test because he always failed those tests and that he would not be able to do them even if he was sober. I offered him a PBT and he blew a.135 on it. I then asked him if he knew his alphabet and he said that he did. I told him that I wanted him to close his eyes and recite the alphabet, starting at the letter D and end on the letter X. He said that he understood and said the following: DEFGHIJKLMNOPQRStuVWXYZ. I told him that he was over the legal limit and that I was going to piace him under arrest for OVI. He said that he had been through this before and that is why he told me he had all of those injuries. I placed him under arrest, searched him, placed him in the rear of my vehicle, and read his rights to him (twice). An administrative inventory was performed on his vehicle. It was towed from the scene by Hollis Towing. He was taken to the Sugarcreek PD. Implied consent was read and shown to him at the scene. He submitted to a breath test and blew a.128 on the BAC Data Master. He was advised that his license was immediately suspended and of his court date. He was charged with speed, A1a - OVI, A1d - breath from , and A2a - prior OVI within 20 years. Felony charges are pended for this being his sixth OVI within 20 years. He was released to a friend on an HP60. This individual was fairly cooperative throughout the evening. He laughed a lot after he was placed under arrest and said a few comments that did not make sense. He admitted to drinking 1 24 oz. beer and some wine about 3 hours ago. He said that he did not feel intoxicated but that he knew better for driving. He said that it was the first time that he drove while drinking since his last OVI. He admitted to driving over the speed limit but didn't think that he was driving 10 MPH over the limit.

24 OTHER SKILL EVALUATIONS stated that he broke his neck twice - stated that it was a while ago, dislocated disks in his back, crushed vertibrate, said that he had pain in his shoulder, neck, and lower back, stated that he always had pain, stated that he has seen a dr. for his injuries but not seeing one at the moment, stated that he was not on any prescriptions medications, stated that he was on restrictions for his injuries but that he did everything anyway, stated that he walked and worked out all the time, stated that he had a stigmatism in his eyes and that he had welders blindness, stated that he wore sunglasses did not have them on when I stopped him, lated said that he only wore them during the day, A r^ P, k. c)- STATE OF OHIO Ohio State Highway Patrol DEPARTMENT OF PUBLIC SAFETY HP 70'B Rev,,11/14/ Impaired Driver Report OHP 0270 Name: Paul H. Krooss Arrest: X Vehicle Condition: good Vehicle Disposition: towed from the scene by Hollis Towing Clothing Description and Condition Hat or Cap: none Jacket or Coat: none Shirt or Dress: baby blue dress shirt Pants or Skirt: jeans Shoes: sneakers Heels: none Odor of Alcoholic Beverage: strong odor of an alcoholic beverage about his breath Speech: laughed a lot, made statements that did not really make sense Evidence of Drug Use: DIVIDED ATTENTION SKILLS Right Eye Horizontal Gaze Nystagmus Left Eye q Distinct nystagmus at maximum deviation q q Lack of smooth pursuit q q Onset of nystagmus before q Walk And Turn q Moves feet to keep balance while listening to instructions One Leg Stand q Sways while balancing(before or during count) q Starts before instructions completed q Stops while walking to steady self q Does not touch heel to toe q Raises arms 6" for balance q Step off line while walking q Turns incorrectly or loses balance while turning q Raises arm 6" for balance q Hops q Puts foot down q Cannot do test (Puts foot down 3 or more times) stated that he could not do the test q Incorrect number of steps q Cannot do test (including steps off line 3 or more times) PBT RESULT: q P q W F started to stand on the line during instructions, fell Percent.135 off of the line twice, then stated that he could not do the test

25 AxTtcLC IV: J11urc1AL REPEALED. VACANCIES, HOW FILLED. 12 (1851, am. 1912, rep. 1968) VACANCY IN OFFICE OF JUDGE, HOW FILLED. 13 In case the office of any judge shall become vacant, before the expiration of the regular term for which he was elected, the vacancy shall be filled by appointment by the govemor, until a successor is elected and has qualified; and such successor shall be elected for the unexpired term, at the first general election for the office which is vacant that occurs more than forty days after the vacancy shall have occurred; provided, however, that when the unexpired term ends within one year immediately following the date of such general election, an election to fill such unexpired term shall not be held and the appointment shall be for such unexpired term. (1851, am. 1942) REPEALED. REFERRED TO COMPENSATION AND INELIGIBILITY FOR OTHER OFFICE FOR SUPREME COURT 3USTICE.S' AND COMMON PLEAS JUDGES. 14 (185 1, rep. 1968) CHANOING NUMBER OFJUDGES'J E.STABLISHING OTHER c'ourts. 15 Laws may be passed to increase or diminish the number of judges of the Supreme Court, to increase beyond one or diminish to one the number ofjudges of the court of common pleas in any county, and to establish other courts, whenever two-thirds of the members elected to each house shall concur therein; but no such change, addition or diminution shall vacate the office of any judge; and any existing court heretofore created by law shall continue in existence until otherwise provided. (185 1, am. 1912) REPEALED. CLERKS OF COURT ELECTIONS. 16 JUDGES REMOPABLE. (1851, rep. 1933) 17 Judges may be removed from office, by concurrent resolution of both houses ofthe General Assembly, if two-thirds of the members, elected to each house, concur therein; but, no such removal shall be made, except upon complaint, the substance of which shall be entered on the jouinal, nor, until the party charged shall have had noticc thereof, and an opportunity to be heard. (1851) POWERS AND JURISDICT'ION OF JUDGES. 18 The several judges of the Supreme Court, of the common pleas, and of such other courts as may be created, shall, respectively, have and exercise such power and jurisdiction, at chambers, or otherwise, as may be directed by law. (1851) COURTS OF CONCILIATION. 19 The General Assembly may establish courts of conciliation, and prescribe their powers and duties; but such courts shall not render final judgment in any case, except upon submission, by the parties, of the matter in dispute, and their agreement to abide such judgment. (1851) STYLE OF PROCESS, PROSECUTTON, AND INDICTMENT. 20 The style of all process shall be, "The state of Ohio;" all prosecutions shall be carried on, in the name, and by the authority, of the state of Ohio; and all indictments shall conclude, "against the peace and dignity of the state of Ohio." (1851) SUPREME COURT COMMISSION. [21]22 A commission, which shall consist of five members, shall be appointed by the govemor, with the advice and consent of the Senate, the members of which shall hold office for the term of three years from and after the first day of February, 1876, to dispose of such part of the business then on the dockets of the Supreme Court, as shall, by arrangement between said commission and said court, be transferred to such commission; and said commission shall have like jurisdiction and power in respect to such business as are or may be vested in said court; and the members of said commission shall receive a like compensation for the time being, with the judges of said court. A majority of the members of said commission shall be necessary to form a quorum or pronounce a deci- THE CONSTIT[JT10N OF THE STATE OF OHIO 23 /ppxs

26 Lawriter - ORC Jurisdiction of municipal courts. Page 1 of Jurisdiction of municipal courts. (A) The municipal courts established by section of the Revised Code have jurisdiction within the corporate limits of their respective municipal corporations, or, for the Clermont county municipal court, the Columbiana county municipal court, and, effective January 1, 2008, the Erie county municipal court, within the municipal corporation or unincorporated territory in which they are established, and are courts of record. Each of the courts shall be styled... municipal court," inserting the name of the municipal corporation, except the following courts, which shall be styled as set forth below: (1) The municipal court established in Chesapeake that shall be styled and known as the "Lawrence county municipal court"; (2) The municipal court established in Cincinnati that shall be styled and known as the "Hamilton county municipal court"; (3) The municipal court established in Ravenna that shall be styled and known as the "Portage county municipal court"; (4) The municipal court established in Athens that shall be styled and known as the "Athens county municipal court"; (5) The municipal court established In Columbus that shall be styled and known as the "Franklin county municipal court"; (6) The municipal court established in London that shall be styled and known as the "Madison county municipal court"; (7) The municipal court established in Newark that shali be styled and known as the "Licking county municipal court"; (8) The municipal court established in Wooster that shall be styled and known as the "Wayne county municipal court"; (9) The municipal court established in Wapakoneta that shall be styled and known as the "Auglaize county municipal court"; (10) The municipal court established in Troy that shall be styled and known as the "Miami county municipal court"; (11) The municipal court established in Bucyrus that shall be styled and known as the "Crawford county municipal court"; (12) The municipal court established in Logan that shall be styled and known as the "Hocking county municipal court"; (13) The municipal court established in Urbana that shall be styled and known as the "Champaign 5/27/2009

27 Lawriter - ORC Jurisdiction of municipal courts. Page 2 of 10 county municipal court"; (14) The municipal court established in Jackson that shall be styled and known as the "Jackson county municipal court"; (15) The municipal court established in Springfield that shall be styled and known as the "Clark county municipal court"; (16) The municipal court established in Kenton that shall be styled and known as the "Hardin county municipal court"; (17) The municipal court established within Ciermont county in Batavia or in any other municipal corporation or unincorporated territory within Clermont county that is selected by the legislative authority of that court that shall be styled and known as the "Clermont county municipal court"; (18) The municipal court established in Wilmington that, beginning July 1, 1992, shall be styled and known as the "Clinton county municipal court"; (19) The municipal court established in Port Clinton that shall be styled and known as "the Ottawa county municipal court"; (20) The municipal court established in Lancaster that, beginning January 2, 2000, shall be styled and known as the "Fairfield county municipal court"; (21) The municipal court established within Columbiana county in Lisbon or in any other municipal corporation or unincorporated territory selected pursuant to division (I) of section of the Revised Code, that shall be styled and known as the "Columbiana county municipal court"; (22) The municipal court established in Georgetown that, beginning February 9, 2003, shall be styled and known as the "Brown county municipal court"; (23) The municipal court established in Mount Gilead that, beginning January 1, 2003, shall be styled and known as the "Morrow county municipal court"; (24) The municipal court established in Greenville that, beginning January 1, 2005, shall be styled and known as the "Darke county municipal court"; (25) The municipal court established in Millersburg that, beginning January 1, 2007, shall be styled and known as the "Holmes county municipal court;" (26) The municipal court established in Carrollton that, beginning January 1, 2007, shall be styled and known as the "Carroll county municipal court"; (27) The municipal court established within Erie county in Milan or established in any other municipal corporation or unincorporated territory that is wlthin Erie county, is within the territorial jurisdiction of that court, and is selected by the legislative authority of that court that, beginning January 1, 2008, shall be styled and known as the "Erie county municipal court." Arpix /27/2009

28 Lawriter - ORC Jurisdiction of municipal courts. Page 3 of 10 (B) In addition to the jurisdiction set forth in division (A) of this section, the municipal courts established by section of the Revised Code have jurisdiction as follows: The Akron municipal court has jurisdiction within Bath, Richfield, and Springfield townships, and within the municipal corporations of Fairlawn, Lakemore, and Mogadore, in Summit county. The Alliance municipal court has jurisdiction within Lexington, Marlboro, Paris, and Washington townships in Stark county. The Ashland municipal court has jurisdiction within Ashland county. The Ashtabula municipal court has jurisdiction within Ashtabula, Plymouth, and Saybrook townships in Ashtabula county. The Athens county municipal court has jurisdiction within Athens county. The Auglaize county municipal court has jurisdiction within Auglaize county. The Avon Lake municipal court has jurisdiction within the municipal corporations of Avon and Sheffield in Lorain county. The Barberton municipal court has jurisdiction within Coventry, Franklin, and Green townships, within all of Copley township except within the municipal corporation of Fairlawn, and within the municipal corporations of Clinton and Norton, in Summit county. The Bedford municipal court has jurisdiction within the municipal corporations of Bedford Heights, Oakwood, Glenwillow, Solon, Bentleyville, Chagrin Falls, Moreland Hills, Orange, Warrensville Heights, North Randall, and Woodmere, and within Warrensville and Chagrin Falls townships, in Cuyahoga county. The Bellefontalne municipal court has jurisdiction within Logan county. The Bellevue municipal court has jurisdiction within Lyme and Sherman townships in Huron county and within York township in Sandusky county. The Berea municipal court has jurisdiction within the municipal corporations of Strongsville, Middleburgh Heights, Brook Park, Westview, and Olmsted Falls, and within Olmsted township, in Cuyahoga county. The Bowling Green municipal court has jurisdiction within the municipal corporations of Bairdstown, Bloomdale, Bradner, Custar, Cygnet, Grand Rapids, Haskins, Hoytville, Jerry City, Milton Center, North Baltimore, Pemberville, Portage, Rising Sun, Tontogany, Wayne, and Weston, and within Bloom, Center, Freedom, Grand Rapids, Henry, Jackson, Liberty, Middleton, Milton, Montgomery, Plain, Portage, Washington, Webster, and Weston townships in Wood county. Beginning February 9, 2003, the Brown county municipal court has jurisdiction within Brown county. 5/27/2009

29 Lawriter - ORC Jurisdiction of municipal courts. Page 4 of 10 The Bryan municipal court has jurisdiction within Williams county. The Cambridge municipal court has jurisdiction within Guernsey county. The Campbell municipal court has jurisdiction within Coitsville township in Mahoning county. The Canton municipal court has jurisdiction within Canton, Lake, Nimishillen, Osnaburg, Pike, Plain, and Sandy townships in Stark county. The Carroll county municipal court has jurisdiction within Carroll county. The Celina municipal court has jurisdiction within Mercer county. The Champaign county municipal court has jurisdiction within Champaign county. The Chardon municipal court has jurisdiction within Geauga county. The Chillicothe municipal court has jurisdiction within Ross county. The Circleville municipal court has jurisdiction within Pickaway county. The Clark county municipal court has jurisdiction within Clark county. The Clermont county municipal court has jurisdiction within Clermont county. The Cleveland municipal court has jurisdiction within the municipal corporation of Bratenahl in Cuyahoga county. Beginning July 1, 1992, the Clinton county municipal court has jurisdiction within Clinton county. The Columbiana county municipal court has jurisdiction within all of Columbiana county except within the municipal corporation of East Liverpool and except within Liverpool and St. Clair townships. The Coshocton municipal court has jurlsdiction within Coshocton county. The Crawford county municipal court has jurisdiction within Crawford county. Until December 31, 2008, the Cuyahoga Falls municipal court has jurisdiction within Boston, Hudson, Northfield Center, Sagamore Hills, and Twinsburg townships, and withln the municipal corporations of Boston Heights, Hudson, Munroe Falls, Northfield, Peninsula, Reminderville, Silver Lake, Stow, Tailmadge, Twinsburg, and Macedonia, in Summit county. Beginning January 1, 2005, the Darke county municipal court has jurisdiction within Darke county except within the municipal corporatlon of Bradford. The Defiance municipal court has jurisdiction within Defiance county. 5/27/2009