COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59375 : : JAMES R. JOHNSON : : Petitioner-Appellant : : -vs- : JOURNAL ENTRY : AND BUREAU OF MOTOR VEHICLES : OPINION : Respondent-Appellee : : : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 19, 1991 CHARACTER OF PROCEEDING: Criminal appeal from Lyndhurst Municipal Court Case No. D-10307 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: ______________________________ APPEARANCES: For Petitioner-Appellant: For Respondent-Appellee: JOHN H. CARLIN IRL RUBIN 55 Public Square Lyndhurst Prosecuting Attorney Suite 2200 5301 Mayfield Road Cleveland, Ohio 44113 Lyndhurst, Ohio 44124 -2- KRUPANSKY, C.J.: Appellant James R. Johnson was arrested in the early morning hours of July 16, 1989 in the City of Mentor on the charge of driving under the influence of alcohol. Appellant refused to take a breathalyzer test at the police station after his arrest and was subsequently found not guilty of the offense after a jury trial. Appellee Ohio Bureau of Motor Vehicles thereafter suspended appellant's driver's license for a period of one year based on appellant's refusal to submit to the breathalyzer test after his arrest. Appellant timely filed a petition in Lyndhurst Municipal Court, Case No. D-10307, seeking revocation of the suspension of his driver's license and other relief. The municipal court upheld the suspension after conducting a hearing. The municipal court thereafter ordered the suspension of appellant's driver's license for one year effective February 1, 1990 and denied appellant any driving privileges for one year thereafter. Appellant's subsequent motions to stay execution of his license suspension in the municipal court and Court of Appeals were denied. Appellant timely filed a notice of appeal raising three assignments of error. Appellee has not filed any brief directed to the merits of the appeal. The Court shall address appellant's second assignment of error concerning the record prior to considering the merits of the appeal. -3- Appellant's second assignment of error follows: II. THE APPELLANT WAS DENIED DUE PROCESS OF LAW WHEN THE TRIAL COURT FAILED TO COMPLY WITH PROPER PROCEDURE AS SET FORTH IN THE RULES OF APPELLATE PROCEDURE. Appellant's second assignment of error is without merit. Appellant contends the municipal court failed to certify an appropriate statement of evidence and proceedings in the case sub judice. App. R. 9(C) governs the preparation of a record in the absence of a transcript of proceedings and provides as follows: Statement of the Evidence or Proceedings When No Report was Made or When the Transcript is Unavail- able. If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a state- ment of the evidence or proceedings from the best available means, including his recollection. The statement shall be served on the appellee no later than twenty days prior to the time for transmission of the record pursuant to Rule 10, who may serve objections or propose amendments thereto within ten days after service. Thereupon, the statement and any objections or proposed amendments shall be forthwith submitted to the trial court for settlement and approval. The trial court shall act thereon prior to the time for transmission of the record pursuant to Rule 10, and, as settled and approved, the statement shall be included by the clerk of the trial court in the record on appeal. (Emphasis added). App. R. 10(A) governs the time for transmission of the record and provides as follows: Time for Transmission; Duty of Appellant. The record on appeal, including the transcript and exhibits necessary for the determination of the appeal, shall be transmitted to the clerk of the court of appeals when the record is complete for -4- the purposes of appeal, or when forty days, which is reduced to twenty days for an accelerated calendar case, have elapsed after the filing of the notice of appeal and no order extending time has been granted under subdivision (C). After filing the notice of appeal the appellant shall comply with the provisions of Rule 9(B) and shall take any other action necessary to enable the clerk to assemble and transmit the record. If more than one appeal is taken, each appellant shall comply with the provisions of Rule 9(B) and this subdivision, and a single record shall be transmitted when forty days have elapsed after the filing of the final notice of appeal. (Emphasis added). Appellate Rules 9 and 10 place the onus squarely upon the appellant to perfect the appeals process. Rose Chevrolet, Inc. v. Adams (1988), 36 Ohio St. 3d 17, 19. In the case sub judice, appellant filed a notice of appeal and praecipe in the municipal court on February 20, 1990 directing the clerk to prepare and transmit the original papers and an App. R. 9(C) statement since no transcript of proceedings was available. Appellant thereafter failed to timely serve a proposed statement of evidence to appellee as required by App. R. 9(C) to initiate preparation of the requested statement prior to the expiration of the twenty day deadline. It appears appellant never prepared a proposed statement of evidence or took any other action at any time to assemble the record pursuant to App. R. 9(C). Instead, three days after the municipal court filed a document captioned "Statement of Evidence Proceedings Under Appellate Rule 9(C)" in the Court of Appeals (the "Statement"), appellant filed a motion in this Court to extend the time to -5- file the record on appeal. This Court's April 2, 1990 journal entry reads as follows: Motion by appellant to extend time to file record denied. The 9(C) statement of proceedings was filed 3/26/90. Although the Statement submitted to this Court by the municipal court was mislabelled as a "9(C) Statement", appellant subsequently neither filed a motion challenging the accuracy of the Statement nor did he bring any inaccuracies or omissions in the record to this Court's attention in any manner to afford a basis for legitimate inquiry. State, ex rel. Ellison v. Dresbach (1983), 6 Ohio St. 3d 19. App. R. 9(E) establishes the appropriate procedure to correct or modify the record after its submission to this Court and provides as follows: Correction or Modification of the Record. If any difference arises as to whether the record truly discloses what occurred in the trial court, the difference shall be submitted to and settled by that court and the record made to conform to the truth. If anything material to either party is omitted from the record by error or accident or is misstated therein, the parties by stipulation, or the trial court, either before or after the record is transmitted to the court of appeals, or the court of appeals, on proper suggestion or of its own initiative, may direct that the omission or misstatement be corrected, and if necessary that a supplemental record be certified and transmit- ted. All other questions as to form and content of the record shall be presented to the court of appeals. (Emphasis added). Appellant's failure to exhaust the remedies afforded by App. R. 9(E) either in the municipal court or this appellate court or to file a mandamus action if the trial court failed to properly act under App. R. 9(E) after the statement was filed with this -6- Court, precludes appellant from asserting any defect in the record by way of his appeal brief at this late date. This Court in Associated Estates Corp. v. Fellows (1983), 11 Ohio App. 3d 112, stated the proper procedure for making changes to the record under App. R. 9(E) after submission to the appellate court as follows: [A]n appellate court cannot resolve disputes about the trial court's record in the course of an appeal. The appellate court can authorize correction or supplementation of the trial court's record when the accuracy of proposed changes is undisputed. App. R. 9(E). When the appellate court must resolve factual disputes about the trial court's record, mandamus is the sole appropriate remedy. (Citations omitted). Id. at 114. (Emphasis added). Appellant has failed to demonstrate the proposed changes to the Statement set forth in his brief and purportedly elicited during cross-examination of police officers at the hearing are undisputed. Appellee has not filed any document with the Court from which an agreement to the proposed changes can be inferred and the Court cannot resolve the resulting factual disputes concerning the record in the course of the appeal sub judice. As a result, the Court and parties are bound by the Statement and original papers filed as the record by the municipal court. Id. Appellant's argument he was denied due process in assembling the record on appeal is without merit since appellant was granted a complete opportunity to take advantage of the procedure to prepare or correct the record. Appellant's failure to properly comply with the appellate rules governing the original -7- preparation and subsequent correction of an appropriate statement of evidence does not amount to a denial of due process. Accordingly, appellant's second assignment of error is without merit and overruled. Appellant's first assignment of error follows: I. THE COURT ERRED IN FINDING THAT PROBABLE CAUSE DID EXIST AT THE TIME OF APPELLANT'S ARREST. Appellant's first assignment of error is without merit. Appellant contends appellee had insufficient grounds to revoke his driving privileges. Specifically, appellant argues the municipal court erred at the implied consent license suspension hearing by finding the Mentor police had reasonable grounds to believe appellant had been operating a motor vehicle on the public highways in this state while under the influence of alcohol. We note the complete restoration of appellant's driving privileges upon completion of the suspension sub judice would ordinarily render appellant's assignment of error concerning the validity of the suspension moot. State v. Bazen (1988), 37 Ohio St. 3d 242; State v. Berndt (1987), 29 Ohio St. 3d 3; State v. King (1984), 10 Ohio App. 3d 160; Kelm v. Hess (1983), 8 Ohio App. 3d 448. However, we find appellant preserved the issue by filing two motions to stay execution of the suspension and address this assignment of error based on appellant's claims of adverse collateral consequences. -8- Based on our review of the record, we conclude appellant failed to satisfy his burden of proof concerning lack of reasonable grounds at the license revocation hearing. The burden is on the licensee to prove, by a preponderance of the evidence, the police did not have reasonable grounds to believe the licensee was operating his vehicle under the influence of alcohol. Andrews v. Turner (1977), 52 Ohio St. 2d 31; Schotten v. McCullion (1989), 63 Ohio App. 3d 299, 302. "Reasonable grounds" in this context are analogous to "probable cause." The Statement submitted by the municipal court provides in pertinent part as follows: The matter proceeded in open Court with the testimony of three police officers from the City of Mentor, Ohio. The evidence presented indicated that the [appellant] was arrested in the City of Mentor, Ohio, and charged with driving under the influence on July 16, 1989. He was first observed at approximately 4:30 a.m. operating his motor vehicle on State Route 20 at State Route 615. [Appellant] made a left turn from the right curb lane into a parking lot, then on a connecting street to go northbound. He was followed from five to ten minutes onto three different streets and was observed at least three or four times weaving from curb to center line. He was ulti- mately stopped within the City limits and the officer testified that the [appellant] had an odor of alcohol about him, did not know where he was and generally appeared impaired. He was next out of his car and administered field sobriety tests, especially finger-to-nose and walking a straight line. He failed these tests and was thereafter placed under arrest and charged with driving under the influence of alcohol. He was taken to the Mentor Police Station at 5:00 A.M. and turned over to another officer for breath tests. He was observed by said officer. The [appellant] then spoke with his attorney over the phone and, after being read his rights, he refused any test at -9- approximately 5:45 A.M. The [appellant] did not testify on his own behalf. Appellant expressly objects only to the accuracy of the underlined passages from the Statement based on statements purportedly elicited from the police officers on cross- examination. However as discussed above, raising arguments concerning the accuracy of the record in an appellate brief is not the proper procedure to make such claims and claims raised in this manner must be rejected. Appellant's related arguments for the first time on appeal that he had not been drinking and suffers from "Osgood- Slaughter's Disease (commonly referred to as bow legs)" which makes steady walking difficult, compounded by his physical and mental exhaustion after learning of his father's terminal heart disease, must likewise be disregarded since the record demonstrates appellant did not testify at the hearing. Appellant's admittedly improper left hand turn and improper weaving within his lane at 4:30 a.m. in the morning, subsequent failure of sobriety and physical coordination tests which were videotaped by Mentor police in addition to police testimony concerning the smell of alcohol, support the conclusion the Mentor police had reasonable grounds to believe appellant was driving under the influence of alcohol at the time of his arrest. See, State v. Iacampo (Dec. 27, 1990), Cuyahoga App. No. 57796 (finding sufficient evidence of probable cause to make arrest). Appellant's subsequent acquittal on the charge does not -10- demonstrate there was a lack of probable cause or insufficient grounds to make the arrest. Accordingly, appellant's first assignment of error is overruled. Appellant's third assignment of error follows: III. THE COURT ERRED IN FAILING TO PROVIDE A FORUM AT WHICH THE APPELLANT COULD PRESENT EVIDENCE ON HIS OWN BEHALF AND ABUSED ITS DISCRETION IN DENYING OCCUPATIONAL DRIVING PRIVILEGES TO THE APPELLANT. Appellant's third assignment of error is dismissed as moot. Appellant complains the municipal court did not provide an opportunity for him to acquire occupational driving privileges during his license suspension and improperly ignored his second motion for driving privileges pursuant to R.C. 4507.16(D). The record demonstrates the municipal court construed appellant's initial petition seeking to revoke the suspension of his license "and for such other and further relief" as a request for occupational driving privileges pursuant to R.C. 4511.191(F) and (G). After appellant failed to provide any evidence at the implied consent hearing to support his request for driving privileges, the municipal court ordered the suspension of appellant's license and denied all driving privileges based in part on L.E.A.D.S. records for appellant which indicated two or three prior alcohol-related driving offenses. We find this assignment of error moot since the term of the license suspension sub judice expired February 1, 1991 and it appears appellant's driving privileges have been fully restored. -11- Reviewing error, if any, by the municipal court in failing to conduct another hearing or grant limited driving privileges before the expiration of appellant's license suspension would not afford any relief to appellant since complete driving privileges have already been restored. State v. Bazen, supra; State v. Berndt, supra; State v. King, supra; Kelm v. Hess, supra. Accordingly, appellant's third assignment of error is dismissed as moot. Judgment accordingly. -12- It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Lyndhurst Municipal Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rule of Appellate Procedure. DAVID T. MATIA, J., and PATRICIA A. BLACKMON, J., CONCUR ______________________________ CHIEF JUSTICE BLANCHE KRUPANSKY N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .