COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68970 CITY OF ROCKY RIVER : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION RONALD E. ZAHN : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : OCTOBER 3, 1996 CHARACTER OF PROCEEDING : Criminal appeal from : Rocky River Municipal Court : Case No. 94 TRC 13477 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: GARY A. HOTZ Attorney at Law 24650 Center Ridge Road, #210 Westlake, Ohio 44145 DAVID J. MATTY Attorney at Law 55 Public Square, Suite 1775 Cleveland, Ohio 44113 For defendant-appellant: PAUL J. STANO Attorney at Law 6650 Pearl Road, Suite 202 Parma Heights, Ohio 44130 TIMOTHY E. McMONAGLE, J.: Defendant-appellant Ronald E. Zahn appeals the decision of the trial court which denied his motion to dismiss the charges against him in the court below. Finding no reversible error, we affirm the decision of the trial court. The record reflects that at 10:44 p.m. on December 14, 1994, Ronald E. Zahn was arrested and issued three traffic tickets. Zahn was charged with violation of Rocky River Ord. 333.01(a)(1) (Driving Under the Influence [hereinafter "DUI"]); 333.01(a)(3) (DUI/Breath-Alcohol Content [hereinafter "DUI/BAC"]); and 313.01 ("red light" offense). Zahn's breath-alcohol test registered .17. The DUI charge was Zahn's first offense within the preceding five- year period. The arresting officer imposed an automatic license suspension (hereinafter "ALS") pursuant to R.C. 4511.191 and seized Zahn's license. By law, the duration of Zahn's ALS as a first offender who had "failed" a breath-alcohol test at the time of arrest was ninety days. R.C. 4511.191(F)(1). Defendant petitioned the court for driving privileges. The defendant's motion for driving privileges was denied on January 13, 1995. The case was set for trial on April 28, 1995. On April 26th, defendant Zahn moved the court to dismiss the criminal charges - 3 - against him on double jeopardy grounds. Defendant's motion to dismiss was denied on April 27, 1995. On April 28, 1995, Zahn withdrew his plea of not guilty and entered a plea of no contest to the charge of violation of Ord. 333.01(a)(3) (DUI/BAC), and a judgment of conviction was entered on that charge. The remaining charges were dismissed. Zahn was sentenced to fifteen days in jail and fined $350 in costs. Zahn's driver's license was suspended for one hundred eighty days, less the credit for the ninety-day ALS pursuant to R.C. 4511.191. The balance of the court-imposed R.C. 4507.16 license suspension was ordered with work-driving privileges. The jail sentence was suspended to a six-month inactive probation conditioned upon compliance with the imposed terms. Defendant's motion to stay all portions of the sentence pending his appeal was granted. The court ordered an appeal bond to be filed in the amount of $500.00. The record does not reflect such bond having been filed. Appellant raises the following sole assignment of error for our review: THE COURT COMMITTED PLAIN, PREJUDICIAL AND REVERSIBLE ERROR BY DENYING DEFENDANT'S MOTION TO DISMISS BASED ON DOUBLE JEOPARDY. The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and Section 10, Article I of the Ohio Constitution protects against three distinct abuses: a second prosecution for the same offense after acquittal; a second - 4 - prosecution for the same offense after conviction; and multiple punishments for the same offense. United States v. Halper (1989), 490 U.S. 435, 440, 109 S.Ct. 1892. Appellant complains that the lower court improvidently denied his motion to dismiss the criminal charges against him where the criminal charges against him were based upon the same conduct as the ALS. R.C. 4511.191. Specifically, appellant contends that the criminal prosecution represents multiple punishments for the same offense in violation of the double jeopardy clauses of the United States Constitution and the Ohio Constitution. Multiple punishments are barred if imposed in separate proceedings. Mis- souri v. Hunter (1983), 459 U.S. 359, 103 S.Ct. 673. In this case, the appellant was convicted of violating Rocky River Codified Ordinance 333.01. The elements of this offense are identical to R.C. 4511.19. Our supreme court has recently analyzed the issue of double jeopardy as it relates to the automatic license suspension, R.C. 4511.191, and DUI offenses pursuant to R.C. 4511.19. In State v. Gustafson (1996), 76 Ohio St.3d 426, the court determined that under some circumstances, the ALS may be considered punishment imposed in a separate proceeding. In Gustafson, the court held that "[a]n administrative license suspension imposed pursuant to R.C. 4511.191, and a criminal driving-under the influence prosecution for violation of R.C. 4511.19, arising out of the same arrest, constitute separate - 5 - proceedings for double jeopardy purposes." Id., paragraph two of the syllabus. Further, the court held that "[f]or purposes of determining the protection afforded by the double jeopardy clauses of the United States and Ohio Constitutions, an administrative license suspension imposed pursuant to R.C. 4511.191 ceases to be remedial and becomes punitive in nature to the extent the suspen- sion continues subsequent to adjudication and sentencing for violation of R.C. 4511.19." Id., paragraph three of the syllabus. Following the denial of the appellant's motion to dismiss the DUI charges, the case before us proceeded to judgment of convic- tion and appellant was sentenced. We are now called upon to determine whether the decision of the lower court is consistent with the holdings of Gustafson. A review of the record is necessary to determine whether the sanction imposed upon the appellant constituted punishment or whether the sanction imposed by the ALS remained remedial in nature, therefore not affording the appellant the protection of the Double Jeopardy Clauses of the United States and Ohio Consti- tutions, which preclude multiple punishments in separate proceed- ing for the same conduct. A review of the record shows that the ALS at issue here ter- minated by its own terms before the adjudication and sentencing of the appellant. The ALS, therefore, remained at all times remedial in purpose as that term is used in the double jeopardy context. Pursuant to the holding of Gustafson, the ALS, in this instance, - 6 - did not constitute punishment, and this appellant was not "pun- ished" twice in separate proceedings based upon the same conduct. Therefore, the subsequent prosecution, conviction and sentencing of the appellant did not violate the protection afforded by the Double Jeopardy Clauses of the United States and Ohio Constitutions. We note for the record that the time for the probation and license suspension of the appellant has already run, rendering this appeal moot. The record indicates that the probation and license suspension would be stayed pending this appeal upon the appellant's posting a $500 cash bond. The record does not indicate that bond was posted and the sentence stayed. 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 the defendant will suffer some collateral disability or loss of civil rights from the judgment or conviction. See State v. Golston (1994), 71 Ohio St.3d 224; Cleveland v. Barcus (May 15, 1995), Cuyahoga App No. 67856, unreported. 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. Accordingly, the decision of the trial court is affirmed. - 7 - 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 .