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In the Municipal Court of Findlay, Ohio

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__________________________

IN SUPPORT OF ALLEGED DEFENDANT'S MOTION TO DISMISS

A. Introduction

NOW COMES the Alleged Defendant, me, who Respectfully Requests this Court to
dismiss STATE OF OHIO’s Alleged Complaint pursuant to Ohio Civil Rule 12(B)(5)
insufficiency of service of process/no service of process; or, in the alternative,
pursuant to Ohio Civil Rule 12(B)(4) insufficiency of process, C1 and C2 supra.

B. Statement of the Case

On Saturday, January 2, 2009, officer him (hereinafter “him”) arrested me and issued
Uniform Traffic Ticket #@#$ (hereinafter “ticket”). The ticket charged an alleged
violation of Ohio Revised Code § 4511.21(D)(1). To this date, I have been served neither
summons nor a verified complaint as stated in my affidavit incorporated herein as
Exhibit “A.”

C. Argument and Authorities

C1. May I Resort to the Ohio Criminal Rules where the Ohio Traffic Rules do not
provide a Rule?

Ohio Traffic Rule 20. Procedure not Otherwise Specified states as follows:

“If no procedure is specifically prescribed by these rules, the Rules of Criminal


Procedure and the applicable law apply.”

Therefore, when the traffic rules are silent regarding relevant procedures, the Ohio
Criminal Rules may be invoked.

C2. May I Resort to the Ohio Rules of Civil Procedure where the Ohio Criminal and
Traffic Rules do not provide a Rule?

Ohio Criminal Rule 57. Rule of Court; Procedure Not Otherwise Specified states in
pertinent part:

“(B) Procedure not otherwise specified. If no procedure is specifically prescribed by


rule, the court may proceed in any lawful manner not inconsistent with these rules
of criminal procedure, and shall look to the rules of civil procedure and to the
applicable law if no rule of criminal procedure exists.”
Therefore, where the Ohio Criminal Rules are silent on specific procedures, this
court “shall,” look to the Ohio Civil Rules of Procedure or the applicable law.

C3. Is My Personal Appearance Required?

Ohio Civil Rule 12 Defenses and Objections--When and How Presented--by Pleading
or Motion--Motion for Judgment on the Pleadings states in pertinent part:

“(B) How presented. Every defense, in law or fact, to a claim for relief in any
pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be
asserted in the responsive pleading thereto if one is required, except that the
following defenses may at the option of the pleader be made by motion: (1) lack of
jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3)
improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6)
failure to state a claim upon which relief can be granted, (7) failure to join a party
under Rule 19 or Rule 19.1. A motion making any of these defenses shall be made
before pleading if a further pleading is permitted.”

Ohio Traffic Rule 20, C1 supra, and Ohio Criminal Rule 57(B), C2 supra, provide that
where a criminal or traffic rule do not provide relevant rules the Ohio Rules of Civil
Procedure may be invoked. Ohio Civil Rule 12(B) provides a specific procedure for
appearances where the traffic and criminal rules are silent. My personal appearance
is not required because this motion challenging insufficiency/no service of process,
qualifies me, if I so choose, to appear by motion.

Therefore, I am not required to appear personally and may appear by this motion in
satisfaction of my agreement to appear.

C4. Does the ticket comply with the style of process?

Ohio Constitution, Article IV, §20 Style of process, prosecution, and indictment
states as follows:

“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.’”

In this case, it is mandatory for process to be styled “The State of Ohio,” verbatim,
because the word “shall” is used. Moreover, it is also mandatory that this attempt at
prosecution be carried on and under the authority of the state of Ohio because the
word, “shall,” is a mandatory one, whereas “may” denotes the granting of
discretion.

Therefore, the style of process and any attempt at prosecution must be carried on
and under the authority of “The State of Ohio.”

C5. Is the Uniform Traffic Ticket an Affidavit?

Ohio Revised Code §2935.17 requires in relevant part that:


a. offender be named;
b. the offense committed be described;
c. peace officer must personally appear before an authorized person and
under oath or affirmation, attest to the validity of the accusation by signing
the jurat;
d. contain the signature of said authorized person for verification.

The ticket cannot be an affidavit because him did not appear personally before an
authorized person and under oath or affirmation sign the jurat. Moreover, the ticket
is not an affidavit because the signature from said authorized person is absent. The
ticket cannot be an affidavit because it was not created under the authority or in
the name of the State of Ohio nor was it styled “The State of Ohio,” C4 supra.
Moreover, the ticket is not an affidavit because him solely created the ticket
alongside the road.

Therefore, the ticket is not an affidavit.

C6. Is the Uniform Traffic Ticket a Complaint?

Ohio Criminal Rule 3. Complaint states as follows:

“The complaint is a written statement of the essential facts constituting the


offense charged. It shall also state the numerical designation of the applicable
statute or ordinance. It shall be made upon oath before any person authorized by
law to administer oaths.”

Ohio Traffic Rule 20, C1 supra, provides that where a traffic rule does not provide
relevant rules the Ohio Criminal Rules may be invoked. Ohio Criminal Rule 3
provides specific form requirements where the traffic rules are silent. The ticket is
not a complaint because it fails to charge all the essential elements of the offense
to wit: “1st 1 Year” does not fully apprise me of the charges being lodged against
me.

Moreover, the ticket is not a complaint because it was not created by and through
the authority of the state of Ohio nor was the ticket styled “The State of Ohio,” C4
supra. Moreover, the ticket is not a complaint because it was not made by the
complainant under oath or affirmation before someone authorized by law to take an
oath in the state of Ohio. Moreover, the ticket is not a complaint because said
authorized person’s signature, for verification, is missing. Moreover, the ticket is not
a complaint because him is not authorized by law to create complaints. Moreover,
the ticket is not a complaint because him solely created the ticket alongside the
road.

Therefore, the ticket is not a complaint.

C7. How must Process be Served in Ohio?


Ohio Traffic Rule 6. Summons, Warrants: Form, Service and Execution states as
follows:

“(A) Form. The form of summons and warrants, other than the ticket, shall be as
prescribed in Criminal Rule 4.

(B) Service and execution. Summons, other than the ticket, and warrants shall be
served and executed as prescribed by Criminal Rule 4.”

In this case, process must be served in accordance with Ohio Criminal Rule 4
because the ticket fails to provide procedures determinative of proper procedural
due process of law related to form, service and execution of a summons and
complaint.

Therefore, at the direction of Ohio Traffic Rule 6, I may look to Ohio Criminal Rule 4
relating to the aforementioned issues.

C8. Is the Uniform Traffic Ticket a Summons?

Ohio Criminal Rule 4. Warrant or Summons; Arrest states in pertinent parts:

“(A) Issuance.

(1) Upon complaint. If it appears from the complaint, or from an affidavit or


affidavits filed with the complaint, that there is probable cause to believe that an
offense has been committed, and that the defendant has committed it, a warrant
for the arrest of the defendant, or a summons in lieu of a warrant, shall be issued
by a judge, magistrate, clerk of court, or officer of the court designated by the
judge, to any law enforcement officer authorized by law to execute or serve it.”

The ticket issued was not a summons because a judge, magistrate, clerk of court or
any person designated by the judge, did not issue it. Moreover, the ticket was not a
summons because him is not authorized by law to serve a summons, as he is a
complaining witness i.e. a party to this alleged action. Moreover, the ticket was not
a summons because him, an employee of the Executive Branch, solely issued the
ticket alongside the road devoid of Judicial Branch involvement. Moreover, no
legitimate complaint was filed from which a lawful summons could be served upon
me.

Therefore, the ticket is not a summons.

C9. Am I Required to Plead to a Uniform Traffic Ticket?

Ohio Traffic Rule 10. Pleas; Rights upon Plea states as follows:

“(A) Pleas. A defendant may plead not guilty, guilty or, with the consent of the
court, no contest. All pleas may be made orally. If a defendant refuses to plead,
the court shall enter a plea of not guilty on behalf of the defendant.”
I am not required to plead to the ticket because “may” connotes possibility, choice,
and not compulsory, imperativeness. Moreover, I am not required to plead to the
ticket because no summons or complaint was served on me. Moreover, I am not
required to plead to the ticket because there is no pending case.

Therefore, I am not required to plead to the ticket.

D. Conclusion

The ticket is not a complaint. The ticket is not a summons. Moreover, absent the
existence of process to serve, service of process cannot be achieved. Without service
of process, I have not received notice of any charges against me. I need not
personally appear and may appear by motion.

E. Demand

I demand that this matter be dismissed, without prejudice, for the aforementioned
reasons.

Respectfully Submitted,

____________________________________
me

Certificate of Service

I hereby certify that a true and correct copy of this Motion to Quash has been
delivered to Mark C Miller, prosecuting attorney located at 222 Broadway, Room 104
Findlay, Ohio 45840 via certified mail, return receipt requested number
_______________________, this 16th day of January 2009.

In the Municipal Court of Findlay, Ohio

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__________________________

Order on Motion to Dismiss

On this the 16th day of January 2009, came on to be heard Defendant’s Motion for
Court to Dismiss the proceedings in the above entitled and numbered cause, and the
court, having heard the said motion, and the arguments of counsel and the evidence
thereon submitted, GRANTS the defendant’s motion and, ORDERS this case
dismissed without prejudice.

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Municipal Court Judge, Hancock County