COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69168 OLMSTED TOWNSHIP, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION JERRY W. KELLEY, : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION : OCTOBER 3, 1996 CHARACTER OF PROCEEDING : Criminal appeal from : Berea Municipal Court : Case No. 94-TRC-3243 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Gregory M. Sponseller Law Director 11 Berea Commons Berea, Ohio 44017 For defendant-appellant: Jack W. Bradley BRADLEY & GIARDINI CO., LPA 520 Broadway, 3rd Floor Lorain, Ohio 44052 -2- NAHRA, J.: Defendant-appellant Jerry W. Kelley appeals his convictions for violating three Ohio traffic laws. Appellant's convictions result from an incident which occurred at approximately 12:24 a.m. on September 29, 1994. At that time, officer Ernie Adams of the Olmsted Township Police Department was on routine patrol in his cruiser. Adams was proceeding eastbound on Sprague Road approaching Station Road. When he was within forty feet of the intersection, a blue Chevrolet being driven by appellant pulled out and turned westbound onto Sprague, almost striking Adams' vehicle. Adams turned his cruiser around, activated his flashing lights, and followed appellant. Appellant was slow to respond to Adams' signals; Adams observed appellant's car travel left of the center line three times before appellant finally pulled over. When Adams approached appellant's car, he smelled the strong odor of an alcoholic beverage; therefore he asked appellant to exit the car and perform several field sobriety tests. Since appellant did not do well in the tests, Adams arrested him for violation of R.C. 4511.19(A)(1), driving under the influence of alcohol ("DUI"). Appellant was also cited for violation of R.C. 4511.25, traveling left of center. After being transported to the police station, appellant submitted to a breathalyzer test, which resulted in a blood alcohol content ("BAC") reading of .172. Subsequently, appellant received a third citation for violation of R.C. 4511.19(A)(3), operating a motor vehicle with a blood alcohol concentration over the legal -3- limit. Pursuant to R.C. 4511.191, appellant also was placed under an administrative suspension of his license ("ALS") to operate a motor vehicle. Appellant entered pleas of not guilty to the charges at his arraignment. Thereafter, the trial court held two pretrials, one in October 1994 and one in December 1994. Appellant's case eventually was set for jury trial on April 12, 1995. The record reflects that on April 6, 1995, appellant filed a motion to suppress the results of the breathalyzer test on the ground the officer failed to comply with the requirements of R.C 4511.19(D). Contemporaneously, appellant filed a motion to dismiss the charges against him, contending that because his driver's license has already been suspended, continued prosecution of the charges against him violated his constitutional protection against double jeopardy. Appellant's case proceeded to trial. The trial court heard arguments on appellant's motions, then overruled them. Appellant thereupon changed his pleas from not guilty to no contest. The trial court had a colloquy with appellant pursuant to Crim.R. 11, accepted appellant's pleas, listened to the prosecutor's recitation of the facts, then found appellant guilty of the charges. Later, following a presentence investigation and 1 report the trial court sentenced appellant. The trial court also 1 Appellant's sentence was stayed pending this court's disposition of his appeal. -4- vacated appellant's ALS and ordered that no reinstatement fee be collected. Appellant has filed a timely appeal from his convictions. He presents two assignments of error for this court's review. I. Appellant's first assignment of error states: THE TRIAL COURT ERRED BY DENYING DEFENDANT-APPELLANT'S MOTION TO SUPPRESS THE RESULTS OF THE BREATH TEST WHERE THE DEFENDANT APPELLANT WAS NOT ADVISED OF HIS RIGHT TO AN INDEPENDENT CHEMICAL TEST IN VIOLATION OF HIS RIGHTS UNDER THE U.S. AND OHIO CONSTITUTIONS. Appellant argues his motion to suppress was improperly denied. He contends the officer's failure to advise him of his right to obtain an independent BAC chemical test as required by R.C. 4511.19(D) mandates application of the exclusionary rule. This court disagrees. The trial court's journal entry reflects appellant's motion actually was overruled pursuant to Crim.R. 12(C), which states: RULE 12. Pleadings and Motions Before Trial: Defenses and Objections * * * (C) Motion date. All pretrial motions except as provided in Rule 7(E) and Rule 16(F) shall be made within thirty-five days after arraignment or seven days before trial, whichever is earlier. The court in the interest of justice may extend the time for making pretrial motions. (Emphasis added.) The record reflects appellant was arraigned on September 29, 1994 and his case eventually was set for trial on April 12, 1995. -5- Thus, Crim.R. 12(C) required appellant to file his motion by the "earlier" of the two specified dates, viz., November 3, 1994. Appellant did not file his motion to suppress, however, until April 6, 1995. Since appellant neither offered nor does the record reflect any explanation for this delay, the trial court did not abuse its discretion in overruling appellant's motion to suppress on the basis of its untimeliness. Akron v. Milewski (1985), 21 Ohio App.3d 140; see, also, State v. French (1995), 72 Ohio St.3d 446. Furthermore, at appellant's hearing, the trial court also stated that in its opinion, appellant's motion to suppress lacked merit substantively as well. The trial court rendered this assessment after reviewing State v. Myers (1971), 26 Ohio St.2d 190. In Myers, the Ohio Supreme Court held as follows: This appeal calls upon us to decide *** whether, under R.C. 4511.19(B), the failure to advise a person tested for determination of the concentration of alcohol in the blood that he "may have a physician, or a qualified technician, chemist, registered nurse, or other qualified person of his own choosing administer a chemical test or tests in addition to any administered at the direction of a police officer ***" requires exclusion from evidence of the police-administered tests results. *** It should be noted that here we are not confronted by any question of constitutional magnitude which might place this issue within the purview of the exclusionary rule first enunciated by the United States Supreme Court. [Citations omitted.] * * * 2 Now R.C. 4511.19(D)(3). -6- Rather than being faced with a constitutional problem in the case at bar, we are confronted with a statutory requirement that the person "shall be so advised," with no express sanction provided for the failure of the police officer to do so. With that in mind, we must look to the statutory rule in this state that the reversal of a lower court's conviction on the basis of "the admission or rejection of any evidence offered against or for the accused" shall not be had "unless it affirmatively appears on the record that the accused was or may have been prejudiced thereby." R.C. 2945.83. Accordingly, in the absence of a showing of prejudice having accrued to a defendant by the failure to advise him of his right to have an independent test made, as provided in R.C. 4511.19(B), the results of a chemical test so administered may not be excluded from evidence. The record before us discloses no prejudice accruing to appellee from the admission of evidence regarding the chemical test performed; nor does it disclose evidence sufficient to support a finding as a matter of law that this test was improperly administered or its results erroneous. In reaching this result, we are aware that there is no effective leverage available to a defendant which may be employed to compel police officials to advise a suspect as required by R.C. 4511.19(B). This was, and is, a matter for the General Assembly. In our view, there is no judicial machinery available to produce the missing sanction. (Emphasis in original; underscoring added.) Although appellant argues that amendments to R.C. 4511.19 since Myers was decided have "dramatically" changed that law, it is significant to note that the Supreme Court of Ohio, although it has had the opportunity to do so in a recent decision, has not overruled Myers. See State v. French, supra, at 449. Furthermore, the statute still lacks any sanction for a failure to comply with R.C. 4511.19(D). Appellant cites lower court cases which he argues support his argument that the exclusionary rule should now apply; however, neither those courts -7- nor this court are "in a position to overrule Myers or to declare that it was wrongly decided." State v. Weaver (1993), 86 Ohio App.3d 427 at 432; see, also, State v. Coppock (1995), 103 Ohio App.3d 405 at 412. In this case, there is no affirmative demonstration in the record that appellant was or may have been prejudiced by the police officers' failure to comply with R.C. 4511.19(D). State v. Myers, supra; cf. State v. Weaver, supra. Therefore, under the circumstances of this case, the trial court did not err in denying appellant's motion to suppress evidence. Accordingly, appellant's first assignment of error is overruled. II. Appellant's second assignment of error states: THE TRIAL COURT ERRED BY DENYING DEFENDANT-APPELLANT'S MOTION TO DISMISS WHERE THE STATE'S CRIMINAL ACTION AGAINST THE DEFENDANT-APPELLANT, FOLLOWING THE IMPOSITION OF AN ADMINISTRATIVE LICENSE SUSPENSION, CONSTITUTES DOUBLE JEOPARDY IN VIOLATION OF HIS RIGHTS UNDER THE U.S. AND OHIO CONSTITUTIONS. Appellant argues the trial court was constitutionally required to grant his motion to dismiss the charges against him. He contends that since he was subjected to an ALS, he could not also be prosecuted on charges stemming from the same conduct because the Double Jeopardy clause protects against multiple punishments for the same offense. Once again, this court notes appellant's motion to dismiss was untimely filed; therefore, the trial court did not err in -8- overruling it on this basis. Crim.R. 12(C); State v. French, supra. Moreover, the issue raised by appellant recently has been decided by the Ohio Supreme Court's decision in State v. Gustafson (1996), 76 Ohio St.3d 425. For the purposes of this appeal, the court's holding in Gustafson may be summarized as follows: 1) the Double Jeopardy clauses of the United States and Ohio Constitutions prohibit both multiple prosecutions and multiple punishments for the same offense; however, 2) an ALS is not the type of proceeding to which double jeopardy protection attaches so as to preclude a subsequent criminal prosecution. Therefore, the state is not precluded from trying a defendant criminally for violation of R.C. 4511.19 after an ALS is imposed. See, also, U.S. v. Ursery (1996), U.S. ; 116 S.Ct. 2135. Consequently, *** [W]here an administrative license suspension occurs at the time of arrest, subsequent motions to dismiss criminal DUI proceedings based on double jeopardy principles should be overruled. 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, supra, at 437. (Emphasis added.) The foregoing is dispositive of appellant's argument. Since the trial court did not err in denying appellant's motion to -9- dismiss on double jeopardy grounds, appellant's second assignment of error is also overruled. Appellant's convictions and sentences are affirmed. -10- 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 Berea 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. BLACKMON, P.J., and O'DONNELL, J., CONCUR. JOSEPH J. NAHRA 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 .