Ohio OVI Law; State v. Bockstiegel (1st District Strikes Down 5-day Argument)

State v. Bockstiegel (1st District Court of Appeals)

Defendant Bockstiegel was in a wreck and consented to a blood test and was cited under the per se and impaired sections. His first hearing was beyond the "5 Day" rule, so he filed a motion to dismiss based on the lack of a hearing within 5 days. Bockstiegel had argued, and the trial court agreed, that the dismissal was proper because Bockstiegel did not have his initial appearance within five days. The statutory provisions regarding an initial appearance state that when a person is charged with a violation of R.C. 4511.19 or an equivalent municipal ordinance, “the person’s initial appearance on the charge resulting from the arrest shall be held within five days of the person’s arrest or the issuance of the citation to the person.”

The Court of Appeals for Ohio First Appellate District disagreed with the trial court's dismissal and held:

We agree that the five-day period set forth in R.C. 4511.191 and 4511.196 is not a speedy-trial provision. Under the speedy-trial statutes, the legislature specified the remedy for the failure to meet a trial deadline: dismissal with or without prejudice depending on the context.7 Neither R.C. 4511.191 nor R.C. 4511.196 sets forth any remedy for the failure to hold an initial appearance within the five-day period. And the failure to meet this deadline is not addressed within the context of the speedy- trial statutes.8

Bockstiegel argues that the use of the term “shall” indicates a legislative intent to make the five-day period mandatory. But even with “shall” as the operative verb, a statutory time provision may be directory.9 “As a general rule, a statute which provides a time for the performance of an official duty will be construed as directory so far as time for performance is concerned, especially where the statute fixes the time simply for convenience or orderly procedure.”10 As this court has noted, “[g]enerally, then, it is only where a statutory time requirement evinces an object or purpose to limit a court’s authority that the requirement will be considered jurisdictional.”

In this case, the use of the word “shall” made the time provision directory, not mandatory. The statutes here do not include any expression of intent to restrict the jurisdiction of the court for untimeliness.12 As the Ohio Supreme Court has held, the absence of dismissal as the stated remedy for failure to meet the deadline establishes that the time period is directory.13

While Bockstiegel had other remedies for the failure of the trial court to hold an initial hearing within five days, dismissal of the charges was not among them. As the Ohio Supreme Court noted in In re Davis, “[a]lthough we hold that the seven-day time limit is directory rather than mandatory, such a finding does not render the provision meaningless. * * * [T]he time constraint in the statute serves as justification for seeking a writ of procedendo.”14

Since the five-day time provision was directory, not jurisdictional, the trial court erred when it dismissed the alcohol-related charges against Bockstiegel.

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