COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73383 STATE OF OHIO, EX REL. : ROBERT L. IGOE : JOURNAL ENTRY : PETITIONER : AND : -vs- : OPINION : JUDGE ROBERT J. GROGAN : : RESPONDENT : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 18, 1997 CHARACTER OF PROCEEDING: WRIT OF MANDAMUS/PROHIBITION JUDGMENT: WRIT DISMISSED IN PART AND GRANTED IN PART (Motion No. 88895) DATE OF JOURNALIZATION: APPEARANCES: FOR RELATOR: FOR RESPONDENT: CHARLES J. VAN NESS, ESQ. DOMINIC J. VITANTONIO, ESQ. SCOTT A. FIERMAN, ESQ. 6449 Wilson Mills Road 6181 Mayfield Road, Suite 104 Mayfield Village, Ohio 44143 Mayfield Heights, Ohio 44124 -2- JOURNAL ENTRY Relator, Robert L. Igoe, seeks a writ of mandamus in order to compel the respondent, Judge Robert J. Grogan, to dismiss the criminal charge of driving under the influence of alcohol which is pending in the underlying case of City of Mayfield Heights v. Robert L. Igoe, Lyndhurst Municipal Court Case No. 97-TRC-05782. In addition, the relator seeks a writ of prohibition in order to bar the respondent from proceeding to trial in the underlying case of City of Mayfield Heights v. Robert L. Igoe, supra. The respondent has filed a motion to dismiss the relator's complaint for mandamus and prohibition. The facts pertinent to the present case, which are gleaned from the stipulations of fact as filed with this court by the parties on November 10, 1997, are as follows: 1) On April 25, 1997, Robert Igoe, the relator, was arrested and charged with one count of driving under the influence of alcohol, a violation of section 331.01(A) of the Codified Ordinances of Mayfield Heights; 2) The relator was placed under an Administrative License Suspension ( ALS ) as a result of refusing to submit to an alcohol breath test; 3) On April 27, 1997, the relator entered a written plea of not guilty to the charged offense of driving under the influence of alcohol, demanded a jury trial, appealed the ALS, and requested a hearing with regard to the ALS appeal; -3- 4) On October 15, 1997, the relator filed a motion to dismiss the pending charge of driving under the influence based upon the failure of the respondent to afford the relator a timely ALS review hearing; 5) On October 23, 1997, the respondent denied the relator's motion to dismiss for failure to conduct a timely ALS review hearing; and 6) On October 23, 1997, the relator filed his complaint for writs of mandamus and prohibition. The relator, through his prayer for a writ of mandamus, is attempting to compel the respondent to dismiss the pending criminal charge of driving under the influence of alcohol as a result of failing to conduct a timely ALS review hearing. In order for this court to issue a writ of mandamus, the relator must demonstrate that: 1) the relator possess a clear legal right to the relief requested; 2) the respondent possesses a clear legal duty to perform the relief requested; and 3) the relator possesses no other adequate remedy at law. State ex rel. Westchester v. Bacon (1980), 61 Ohio St.2d 42, paragraph one of the syllabus. Herein, the relator is not entitled to a writ of mandamus. Initially, we find that the relator has failed to establish that he presently possesses any clear legal right which requires the dismissal of the underlying criminal charge. Cf. State ex rel. Boggs v. Springfield Local School Dist. Bd. Of Ed. (1995), 72 Ohio St.3d 94. In addition, the relator has failed to establish that the respondent possesses any clear legal duty to dismiss the underlying criminal -4- charge. Cf. State ex rel. Finley v. Ohio Historical Society (11992), 64 Ohio St.3d 509. Finally, the respondent possesses an adequate remedy at law vis-a-vis a direct appeal from the denial of the previously filed motion to dismiss. State ex rel. Hastings Mutual Ins. Co. V. Merillat (1990), 50 Ohio St.3d 152; State ex rel. Rhodes v. Van Brocklin (1988), 36 Ohio St. 3d 14. We find, however, that the relator is entitled to an immediate ALS review hearing. This court, in City of Mayfield Heights v, Eric J. Buckner (Oct. 3, 1996), Cuyahoga App. No. 69221, unreported, held that: A trial court is duty bound to conduct an immediate post-deprivation hearing in order to avoid constitutional due process violations which occur by delaying that hearing. See Hochhausler, Mathews, and Mackey, supra. In this case, the court failed to accord Buckner procedural due process rights, and thereby, rendered the ALS unconstitutional as applied to him. Trial judges are obligated by their oath to timely conduct these hearings and to enforce the provisions of R.C. 4511.191. Id., at p. 6. Clearly, the relator possesses a right to an ALS review hearing and the respondent possesses a legal duty to provide such an ALS review hearing. Cf. State ex rel. Huntington Ins. Agency v. Duryee (1995), 73 Ohio St.3d 530; State ex rel. Heck v. Kessler (1995), 72 Ohio St.3d 98. Thus, we issue a writ of mandamus on behalf of the relator which requires the respondent to conduct an ALS review hearing prior to trial. The relator also seeks a writ of prohibition in an attempt to prevent the respondent from proceeding to trial with regard to the pending charge of driving under the influence of alcohol. In -5- order for this court to issue a writ of prohibition, the relator must establish that: 1) the court or officers against whom the writ is sought are about to exercise judicial power; 2) the exercise of such power is unauthorized by law, and 3) the denial of the writ will cause injury to relator for which no other adequate remedy in the ordinary course of law exists. State ex rel. Jones v. Garfield Hts. Mun. Court (1997), 77 Ohio St.3d 447. Herein, the relator has failed to establish the second and third prongs of the aforesaid three-part test. Absent a patent and unambiguous lack of jurisdiction, a court having general subject- matter jurisdiction can determine its own jurisdiction, and a party challenging the court's jurisdiction possesses an adequate remedy at law through an appeal. State ex rel. Enyart v. O'Neill (1995), 71 Ohio St.3d 655. The respondent does possess general jurisdiction to proceed to trial with regard to the pending charge of driving under the influence of alcohol. Additionally, the decision of a trial court denying a motion to dismiss is not subject to judicial review through an action in prohibition, or any other action or proceeding which invokes the original jurisdiction of an appellate court. Wenzel v. Enright (1993), 68 Ohio St.3d 623, paragraph one of the syllabus. The relator possesses an adequate remedy of law to challenge the denial of his motion to dismiss through a direct appeal following a conviction in the underlying criminal case. State ex rel. White v. Junkin (1997), 80 Ohio St.3d 335. Therefore, we decline to issue a writ of prohibition on behalf of the relator. -6- Accordingly, we grant, in part, the respondent's motion to dismiss. Writ of mandamus is issued in order to compel the respondent to conduct an immediate ALS review hearing. The prior order of this court, which stayed all proceedings in the underlying case of City of Mayfield Heights v. Robert L. Igoe, supra. is vacated. Trial may proceed on the pending charge of driving under the influence of alcohol following an Administrative License Suspension hearing. Costs to be shared by parties. Writ of mandamus granted in part and denied in part. Writ of prohibition denied. SWEENEY, C.J. AND MCMONAGLE, J., CONCUR. .