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Alleged defendant, Me (hereinafter ´Iµ, ´meµ, or ´myµ), respectfully requests this Court
to dismiss CITY OF FINDLAY·S alleged complaint pursuant to Ohio Rules of Civil
Procedure, Rule 12(B)(5) insufficiency of service of process/no service of process; or, in
the alternative, pursuant to Ohio Rules of Civil Procedure, Rule 12(B)(4) insufficiency of
process, C1 and C2 supra
On Saturday, February 20, 2010, a Findlay Municipal Officer with badge #861
(hereinafter ´the Officerµ) arrested me and issued Uniform Traffic Ticket #BR549
(hereinafter ´ticketµ) The ticket charged an alleged violation of Findlay Municipal Code
§ 33303b, ´speed 4-22-09µ To this date, I have been served neither summons nor a
verified complaint as stated in my affidavit incorporated herein as Exhibit ´Aµ
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Ohio Traffic Rule 20 Procedure not Otherwise Specified states as follows:
When the traffic rules are silent regarding relevant procedures, the Ohio Criminal Rules
may be invoked
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Ohio Criminal Rule 57 Rule of Court; Procedure Not Otherwise Specified states in
pertinent part:
´(B) Procedure not otherwise specified If no procedure is
prescribed by
rule, the court may proceed in any lawful manner not inconsistent with these rules of
criminal procedure, and
look to the rules of civil procedure and to the applicable
law if no rule of criminal procedure existsµ
Where the Ohio Criminal Rules are silent on specific procedures, this court ´shall,µ look
to the Ohio Civil Rules of Procedure or the applicable law
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Ohio Rules of Civil Procedure, 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
at the
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: (1) lack of jurisdiction over the
subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4)
insufficiency of process, (5)
, (6) failure to state a
claim upon which relief can be granted, (7) failure to join a party under Rule 19 or
Rule 191 A motion making any of these defenses
be made before pleading if a
further pleading is permittedµ
Ohio Traffic Rule 3 and Ohio Traffic Rule 7 are vague regarding appearances because
multiple interpretations may be taken from the same rules Ohio Traffic Rule 3 and
Ohio Traffic Rule 7 are vague because the rules do not sufficiently inform me if a
personal appearance is mandatory or if I may appear by motion An appearance is not
limited to appearing in person unless the rules so state One may appear by motion as
per the Ohio Rules of Civil Procedure Moreover, one may make an appearance through
an attorney·s representation The Traffic Rules do not provide specific procedures
regarding appearances or how appearances may be made 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 specific procedures the Ohio Rules of Civil Procedure may be
invoked Ohio Rules of Civil Procedure, Rule 12(B) provides a specific procedure for
appearances where the traffic and criminal rules are silent
Therefore, I am not required to appear personally and may appear by this motion in
satisfaction of my agreement to appear
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Ohio Constitution, Article IV, §20 Style of process, prosecution, and indictment states as
follows:
´The style of
process
be, ´The State of Ohio;µ all prosecutions
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·µ
In this case, it is mandatory for process to be styled ´The State of Ohio,µ verbatim,
because the word ´shallµ 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,µ is a mandatory one, whereas ´mayµ 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 Ohioµ
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offender be named;
9 the offense committed be described;
V 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;
contain the signature of said authorized person for verification
The ticket cannot be an affidavit because the Officer did not appear personally before an
authorized person and under oath or affirmation and 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,µ C4 supra Moreover, the
ticket is not an affidavit because the Officer solely created the ticket alongside the road
Moreover, Ohio Traffic Rule 3 is devoid of any Procedural Due Process of Law
protections
Ohio Traffic Rule 20, C1 supra, provides that where a Traffic rule does not provide
specific procedures the Ohio Criminal Rules may be invoked Ohio Criminal Rule 3
provides specific form requirements and substantive procedures that comport with Due
Process of Law where the Ohio Traffic rules are silent The traffic rules provide for the
formatting of the ticket book and nothing else The ticket is not a complaint because it
fails to charge all the essential elements of the offense to wit: ´speed 4-22-09µ 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,µ 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
the Officer is not authorized by law to create complaints Moreover, the ticket is not a
complaint because the Officer solely created the ticket alongside the road
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
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Ohio Criminal Rule 4 Warrant or Summons; Arrest states in pertinent parts:
´(A) Issuance
The ticket issued is not a summons because a judge, magistrate, clerk of court or any
person designated by the judge, did not issue it Moreover, the ticket is not a summons
because the Officer is not authorized by law to serve a summons, as he is a complaining
witness ? a party to this alleged action Moreover, the ticket is not a summons because
the Officer, 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
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Ohio Traffic Rule 10 Pleas; Rights upon Plea states as follows:
I am not required to plead to the ticket because ´mayµ connotes possibility, choice, and
not compulsory, imperativeness Moreover, I am not required to plead to the ticket
because no summons or complaint was lawfully served on me Moreover, I am not
required to plead to the ticket because there is no pending case
The Ohio Traffic Rules describing the form and permitting issuing procedures of the
ticket to a single Executive Branch Officer do not provide sufficient procedural and
substantive protections that satisfy Due Process of Law The ticket is not a complaint
because it lacks procedural and substantive protections that comports with Due Process
of Law A prosecutor scrutinizes evidence and then determines if a complaint or
information should be filed to secure Justice The Officer is not authorized to solely create
and file complaints I am not able to create and file complaints when/if I witness
someone violating the law and neither is the Officer Moreover, it is the sole province of
the Judicial Branch and not the Executive Branch to issue summonses; the ticket is not a
summons Therefore, 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
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I pray that this matter be dismissed, without prejudice, for the aforementioned reasons
Respectfully Submitted,
____________________________________
Me
I hereby certify that a true and correct copy of this Motion to Dismiss has been delivered
to Mark C Miller, prosecuting attorney located at 222 Broadway, Room 104 Findlay, Ohio
45840 by hand delivery this 4th day of March 2010
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On this the 4th day of March 2010, 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 reviewed the said motion and the arguments as well as the evidence thereon
submitted, 34 the defendant·s motion and, (2 this case dismissed without
prejudice
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Municipal Court Judge, Hancock County