COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68706 CITY OF WESTLAKE : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION JOHN T. SLOAN : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : OCTOBER 31, 1996 CHARACTER OF PROCEEDING : Criminal appeal from : Rocky River Municipal Court : Case No. 94 TRC 13710 JUDGMENT : AFFIRMED DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: MARY A. LENTZ Prosecuting Attorney City of Westlake WALTER AND HAVERFIELD 50 Public Square, Suite 1300 Cleveland, Ohio 44113-2253 For defendant-appellant: DANIEL G. WIGHTMAN Attorney at Law SMITH & SMITH ATTORNEYS 110 Moore Road Post Office Box 210 Avon Lake, Ohio 44012 TIMOTHY E. McMONAGLE, J.: Defendant-appellant, John T. Sloan ("appellant"), appeals the decisions of the Rocky River Municipal Court denying his motions both to dismiss and to suppress evidence in connection with charges related to driving under the influence of alcohol. 1 The record reflects that shortly after 2:00 a.m. on December 20, 1994, appellant was driving westbound on Interstate 90 through the City of Westlake en route to his home in Sheffield Lake after a dinner meeting with business associates at Morton's Restaurant in Cleveland. Patrolman Krumheuer of the Westlake Police Department observed appellant "begin to weave in the high speed lane" and observed that the driver-side tires had crossed over the line onto the berm. Shortly thereafter, the officer again observed appellant cross over the line, at which point the officer activated his emergency lights. When appellant failed to stop, the officer radioed for assistance. After appellant passed a semi-tractor- trailer, appellant pulled over in response to the officer's emergency lights and siren. According to the officer's report and 1 The motion to suppress hearing took place on March 6, 1995. However, the transcript of this hearing was incorrectly tran- scribed to reflect the date of March 8, 1995, the date set for trial. The parties have stipulated that the incorrectly dated transcript is that of the motion to suppress hearing. - 3 - his testimony, he had followed appellant with his emergency lights and siren activated for approximately three minutes over a distance of two miles before appellant stopped. Once stopped, appellant advised the officer that he thought the officer was attempting to stop another vehicle. The officer detected a moderate odor of alcohol and inquired as to whether appellant had been drinking. When the appellant answered affirma- tively, the officer conducted a variety of field sobriety tests. On the basis of the results of these tests, appellant was arrested and issued three traffic citations for the following violations: (1) operating a vehicle while under the influence of alcohol 2 ("DUI") in violation of Westlake Codified Ordinance 333.01(a)(1) ; (2) operating a vehicle with a blood-alcohol concentration ("BAC") 3 of .105 in violation Westlake Codified Ordinance 333.01(a)(3) ; and (3) operating a vehicle in a weaving or zigzag course in vio- lation of Westlake Codified Ordinance 331.34(b). Pursuant to R.C. 4511.191, the arresting officer immediately seized appellant's driver's license and completed the necessary paperwork for the administrative license suspension ("ALS"). Since appellant was a first offender who had failed a breath-alcohol test at the time of arrest, the duration of his ALS was ninety days. At the hearing on the appellant's appeal of the ALS, the court affirmed the ALS, finding that the officer had "reasonable grounds" 2 This ordinance is analogous to R.C. 4511.19(A)(1). 3 This ordinance is analogous to R.C. 4511.19(A)(3). - 4 - to arrest appellant for DUI. Appellant subsequently moved to dismiss the charges against him based on double jeopardy and likewise moved to suppress the evidence on the basis that the arresting officer had insufficient grounds to initiate the traffic stop. The court denied appellant's motion to dismiss, finding that the ALS procedure was not a bar to the subsequent criminal prosecution. In its journal entry denying the appellant's motion to sup- press, the court stated that the arresting officer observed the appellant's vehicle cross the berm by "one and one/half to two feet *** not quite to the middle of the vehicle." Additionally, appellant continued to weave after leaving the roadway, and "he failed to stop for some two miles and two minutes of siren and light activation of the pursuing police cruiser." The court reasoned that these observations justified the initial investiga- tive stop and, therefore, did not warrant suppression of the evidence obtained as a result thereof. Likewise, the court deter- mined that there was probable cause to arrest appellant based upon the results of the field sobriety tests, the officer's observa- tions of the appellant and appellant's own admission of consuming alcohol. On March 8, 1995, appellant withdrew his plea of not guilty and entered a plea of no contest to all three charges. Upon a finding of guilty, he received a fifteen-day suspended sentence for the DUI, which merged with the sentence for BAC, and was fined $350 - 5 - plus costs. His driver's license was suspended for one hun-dred and eighty days, less a credit of seventy-eight days for the ALS, and he was granted occupational driving privileges. For the weaving offense, appellant was fined $50 plus costs. Execution of sentence was stayed pending the filing and perfection of an appeal and the posting of a $500 bond; however, the record does not reflect whether or not this bond was posted. Appellant timely appeals and assigns the following errors for our review: I. PROSECUTION AND PUNISHMENT OF THE DEFEN- DANT FOR THE OFFENSE OF D.U.I. AFTER THE IMPOSITION OF AN ADMINISTRATIVE LICENSE SUSPENSION PURSUANT TO SECTION 4511.191 OF THE OHIO REVISED CODE CONSTITUTES DOUBLE JEOPARDY. II. THE TRIAL COURT ERRED IN DENYING DEFEN- DANT'S MOTION TO SUPPRESS EVIDENCE SEIZED IN VIOLATION OF THE FOURTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 14 OF THE CONSTITUTION OF THE STATE OF OHIO. I. Appellant argues that his conviction for DUI should be re- versed because the punishment for this offense, which was imposed subsequent to the ALS, violated the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution and Section 10, Article I of the Ohio Constitution. For the reasons that follow, this assignment of error is without merit. - 6 - In State v. Gustafson (1996), 76 Ohio St.3d 426, the Ohio Supreme Court addressed this issue and held that the ALS does not constitute a proceeding to which jeopardy attaches so as to pre- clude subsequent criminal prosecution for DUI. The court reasoned that the ALS is a summary administrative procedure that does not result in a conviction or an acquittal. As such, the criminal proceedings commenced subsequent to the ALS are not a second "trial" because there never was a first "trial." Accordingly, where an ALS occurs at the time of arrest, any subsequent motion to dismiss DUI proceedings based on double jeopardy should be overruled. Id. at 437. Nonetheless, the Gustafson court determined that the ALS and the subsequent criminal proceedings for DUI constitute separate proceedings for double jeopardy purposes when the conduct which serves as a basis for both arises out of the same arrest. Conse- quently, the court found it necessary to determine whether the ALS is punitive in nature so as to constitute multiple punishments in violation of the Double Jeopardy Clause. Historically, a suspension of a driver's license imposed pursuant to Ohio's implied consent statutes has been characterized as being civil in nature and remedial in purpose. Id. at 440. However, the court continued that sanctions initially justified as being remedial in purpose can extend beyond that application and have the effect of being punitive for double jeopardy purposes. Id. To prevent such an application, the court found that the need - 7 - for administrative remedial suspension ends at the point where a criminal conviction of DUI is obtained, at which time a court has authority to judicially impose a license suspension pursuant to R.C. 4507.16. Accordingly, the court held that an ALS ceases to be remedial and becomes punitive in nature to the extent it continues subsequent to conviction and sentencing for violation of R.C. 4511.19. Id. at 443. While appellant was given credit for the time his license was administratively suspended, there is no express termination of the ALS in the court's journal entry imposing sentence for the DUI. To the extent that appellant's ALS continued subsequent to the imposition of sentence for DUI, the ALS ceased to be remedial and became punitive in nature. Notwithstanding, when a person convicted of a misdemeanor has voluntarily completed his sentence and/or paid his fine and appeals, his appeal is moot when no evidence is offered from which an inference can be drawn that he will suffer some collateral disability or loss of civil rights from the judgment or con- viction. See State v. Golston (1994), 71 Ohio St.3d 224; Cleve- land v. Barcus (May 15, 1995), Cuyahoga App. No. 67856, unreport- ed. In this case, the record indicates that appellant's probation and license suspension would be stayed pending this appeal upon appellant posting a $500 cash bond. Because the record does not indicate that this bond was posted and the sentence stayed, it is - 8 - assumed that the time for the probation and license suspension of the appellant had already run at the time of this appeal, rendering this issue on appeal moot. Since appellant has offered no evidence from which an inference can be drawn that he will suffer some collateral legal disability or loss of civil right resulting from his conviction, this issue is not properly before this court. Accordingly, appellant's first assignment of error is over- ruled. II. In his second assignment of error, appellant argues that evidence gathered as a result of the initial stop of his vehicle should be suppressed as the arresting officer was without reason- able suspicion to stop his vehicle and consequently lacked proba- ble cause for his arrest. The city, on the other hand, maintains that viewing the totality of the circumstances, the initial stop was based on reasonable suspicion of criminal conduct and that subsequent detention supported probable cause to arrest appellant. In a motion to suppress, the trial court assumes the role of the trier of fact and, as such, is in the best position to resolve questions of fact and evaluate witness credibility. State v. Smith (1991), 61 Ohio St.3d 284; State v. Fanning (1982), 1 Ohio St.3d 19. Accordingly, we are bound to accept the trial court's findings of fact if they are supported by competent, credible evidence. - 9 - State v. Klein (1991), 73 Ohio App.3d 486, 488. Accepting those facts as true, we must independently determine, as a matter of law and without deference to the trial court's conclusion, whether they meet the legal standard set forth in Terry v. Ohio (1968), 392 U.S. 1. Under the Fourth Amendment to the United States Constitution, a police officer is justified in conducting a brief investigatory stop of an individual only if the officer has reasonable suspicion that the individual is involved in criminal activity. Id. In order for a law enforcement officer to make a valid and constitutional stop of an automobile, there must exist a reason- able suspicion by the officer that a traffic law is being violated or that criminal activity is being carried on. See Delaware v. Prouse (1979), 440 U.S. 648, 663; see, also, State v. Evans (1993), 67 Ohio St.3d 405; State v. Chatton (1984), 11 Ohio St.3d 59; State v. Wireman (1993), 86 Ohio App.3d 451. The officer does not need probable cause for an arrest in order to make an investigative stop but needs only specific and articulable facts with which to warrant the officer's further investigation. State v. Brandenburg (1987), 41 Ohio App.3d 109; see, also, State v. Bobo (1988), 37 Ohio St.3d 177; State v. Nealen (1992), 84 Ohio App.3d 235. In determining the appropriateness of an investigative stop, a reviewing court must view the stop in light of the totality of surrounding circumstances, giving due weight to the officer's experience and - 10 - training. State v. Andrews (1991), 57 Ohio St.3d 86, 87-88; State v. Freeman (1980), 64 Ohio St.2d 291. In this case, appellant was charged with violating, inter alia, Westlake Codified Ordinance 331.34(b), which provides, in pertinent part: No person shall operate a motor vehicle upon any street or highway in a weaving or zigzag course unless such irregular course is neces- sary for safe operation or in compliance with the law. Notwithstanding the above ordinance, reasonable suspicion does not always result from the observation of a minor deviation from a normal driving pattern in the absence of other articulable facts justifying a stop. State v. Johnson (1995), 105 Ohio App.3d. 37, 42 (two minor, insubstantial right edge line crossings were not suggestive of impaired driving so as to give officer reasonable suspicion of criminal activity); State v. Drogi (1994), 96 Ohio App.3d 466, 469 (officer lacked reasonable and articulable suspicion to stop vehicle which crossed center and right edge lines absent evidence of erratic driving, speeding or other criminal activity); Hamilton v. Lawson (1994), 94 Ohio App.3d 462 (in absence of speeding or other erratic driving, crossing white dotted line separating two northbound lanes did not give officer reasonable suspicion for investigative stop); Mason v. Loveless (1993), 87 Ohio App.3d 264 (one small weave within lane of travel was insufficient to give police officer reasonable suspicion); State v. Williams (1993), 86 Ohio App.3d 37, 43 ("minor weaving - 11 - over a two-mile section of highway is not so unreasonable as to give legitimate suspicion of criminal activity."); State v. Gullett (1992), 78 Ohio App.3d 138, 145 (every crossing of an edge line does not justify a stop in absence of other behavior suggesting that driver was impaired.) Patrolman Krumheuer testified that not only did appellant's vehicle leave its own lane on two occasions without justification, but the vehicle continued to weave back and forth when in its own lane. Moreover, his testimony supported that appellant's speed was excessive even though he was not cited for speeding. He further testified that this driving behavior, coupled with appellant's failure to stop for two miles after the officer's signal, justified his initial investigatory stop of appellant's vehicle. Giving deference to the officer's testimony as we must, the municipal court had before it competent, credible evidence with which to support its conclusion that there existed articulable facts independent of appellant's weaving that gave Patrolman Krumheuer reasonable suspicion to stop appellant's vehicle. Nonetheless, appellant argues that the officer had insuffi- cient information to establish probable cause for his arrest. Specifically, appellant maintains that he performed satisfactorily on the field sobriety tests and, as such, the officer did not have probable cause to request him to submit to a breath test. Contrary to appellant's assertions, however, the record reflects that appellant did not perform satisfactorily on the field - 12 - sobriety tests. As we have determined that the officer had reasonable suspicion to initially stop appellant's vehicle, appel- lant's inadequate performance of the field sobriety tests, com- bined with the results of the horizontal gaze nystagmus test and the observations of the officer, were sufficient with which to find probable cause to place appellant under arrest. Accordingly, appellant' second assignment of error is over- ruled. Judgment affirmed. - 13 - 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 Rocky River Municipal Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JAMES D. SWEENEY, P.J. and ANN DYKE, J. CONCUR JUDGE TIMOTHY E. McMONAGLE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E), unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .