COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68986 CITY OF RICHMOND HEIGHTS : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION MARK MATTHEWS : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 3, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Lyndhurst Municipal Court Case No. 94-TRC-13702A JUDGMENT: Affirmed in part and Remanded. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: Katherine Bettasso, Esq. Anthony J. Amato, Esq. City Prosecutor 330 Standard Bldg. 700 West St. Clair Cleveland, Ohio 44113-1701 Hoyt Block Bldg. #210 Cleveland, Ohio 44113 - 2 - DYKE, J.: Appellant was arrested on October 22, 1994 for driving while under the influence and operating his vehicle in a weaving course. Appellant refused to take the breathalyzer test to determine blood alcohol content. The arresting officer immediately placed appellant under an administrative license suspension for one year, pursuant to R.C. 4511.191. A motion to dismiss on constitutional Double Jeopardy grounds was filed on February 23, 1995. Appellant subsequently filed a motion to suppress asserting that he had been stopped without reasonable grounds and arrested without probable cause. Both motions were denied by the municipal court judge. On March 29, 1995 the court found appellant guilty. The court sentenced appellant to a $1,000.00 fine and 90 days of jail, 85 of which were suspended. The court also suspended appellant's driver's license for three days. It is not apparent from the record whether or not appellant's administrative license suspension remained in effect until October 22, 1995. A timely notice of appeal was filed and appellant asserts one assignment of error. I THE IMPOSITION OF AN ADMINISTRATIVE LICENSE SUSPENSION PURSUANT TO OHIO REVISED CODE SECTION 4511.191 CONSTITUTES PUNISHMENT ADMINISTERED IN A SEPARATE PROCEEDING FOR THE PURPOSES OF THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE ONE, SECTION TEN OF THE OHIO CONSTITUTION AND THE TRIAL COURT ERRED IN OVERRULING DEFENDANT/APPELLANT'S - 3 - MOTION TO DISMISS THE DRIVING UNDER THE INFLUENCE CHARGES PENDING AGAINST HIM. Appellant argues that his constitutional protection against double jeopardy was violated when he received double punishment for the same conduct. He asserts that his motion to dismiss the criminal charge against him should have been granted because he already bore the burden of an administrative license suspension for one year. Appellant's assignment of error is not well taken. The Ohio Supreme Court recently determined this issue in the case of State v. Gustafson (1996), 76 Ohio St.3d 425. The Supreme Court held that: The Double Jeopardy Clauses of the Fifth Amendment to the United States Constitution and Article I, Section 10 of the Ohio Constitution do not preclude criminal prosecution and trial of motorists for driving in violation of R.C. 4511.19 based upon, and subsequent to, the imposition of an administrative license suspension pursuant to R.C. 4511.191. State v. Gustafson (1996), 76 Ohio St.3d 425, at paragraph one of the syllabus. The Supreme Court found that the administrative suspension could "fairly be characterized as remedial" and therefor was not a "punishment," which would preclude the further imposition of a criminal sentence. The Supreme Court also found that at the time the criminal penalty is imposed, the administrative license suspension should be vacated. The Court held: Accordingly, a sentencing court has judicial power pursuant to Sections 1 and 4, Article IV of the Ohio Constitution to order the "termination" of an admini- strative license suspension at the time of sentencing, as continuation of the ALS would result in unconstitutional - 4 - application of R.C. 4511.191 to the criminal offender. To be "fairly characterized as remedial" rather than a punishment for double jeopardy purposes, an ALS must terminate upon sentencing for violation of R.C. 4511.191, if the ALS has not already expired by operation of law. State v. Gustafson, supra at 442. We find that the prosecution of appellant for the criminal offense was not unconstitutional. However, it is unclear from the record whether appellant's administrative license suspension remained in effect after the criminal sentence was imposed or if the suspension was vacated. If the suspension was subsequently vacated, no constitutional violation occurred. If, however, the suspension was not vacated, it should have been vacated as of March 29, 1995, the date of sentencing for the criminal offense. Appellant's assignment of error is overruled as to any error the trial court committed in denying appellant's motion to dismiss. In accordance with Gustafson this case is affirmed and remanded with instructions that the trial court issue an order to the Bureau of Motor Vehicles to terminate the ALS retroactive to the date of sentencing on the DUI, if it in fact remained in effect after March 29, 1995. Appellant's criminal conviction and sentence are affirmed. - 5 - 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 Lyndhurst 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 O'DONNELL, J., ANN DYKE JUDGE 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 .