COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69221 CITY OF MAYFIELD HEIGHTS : : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION ERIC J. BUCKNER : : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 3, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Lyndhurst Municipal Court Case No. 95-TRC-228 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: GEORGE J. ARGIE Mayfield Village Prosecutor DOMINIC J. VITANTONIO 6571 Wilson Mills Road Mayfield Village, Ohio 44143-3404 For Defendant-Appellant: CHARLES J. VAN NESS 6181 Mayfield Road Suite 104 Mayfield Heights, Ohio 44124 - 2 - O'DONNELL, J.: Eric J. Buckner appeals from the judgment of the Lyndhurst Municipal Court finding him guilty of driving under the influence of alcohol. At 5:34 in the morning on Friday, January 6, 1995, Mayfield Heights Police Officer Ondercin, responding to a call, noticed a 1994 black Ford Explorer stopped at the stop sign at the intersection of Parker and Marsol with its emergency flashing lights blinking. As he approached the vehicle, he saw Buckner slumped over the wheel with a cellular phone in his hand, heard the motor running, and noticed the vehicle was in gear. He knocked on the driver's window, trying to get Buckner to disengage the transmission, but Buckner failed to respond to his requests to put the vehicle in park. Finally, Ondercin reached into the Explorer, put the transmission in the park position, turned the motor off, and removed the keys. When Buckner stepped out of the Explorer, Officer Ondercin noticed a strong odor of alcohol about his body. He then administered several field sobriety tests to Buckner, who could not perform any of them. Ondercin further requested Buckner to submit to a chemical test, which Buckner refused. Because Buckner failed the field sobriety tests, Ondercin arrested him for driving under the influence of alcohol and because he refused to take a chemical test, Ondercin confiscated - 3 - his driver's license thereby instituting an immediate one year Administrative License Suspension ("ALS"). Three days later, at the statutorily mandated five-day hearing conducted by the court on January 9, 1995, Buckner entered a plea of not guilty to the DUI charge and sought a review hearing on the Administration License Suspension. The court, in conformity with R.C. 4511.191, continued the ALS appeal hearing on its own motion, but indicated that it would hear the appeal sometime in the future, depending on the court's heavy schedule and the city's docket with the court. On February 1, 1995, Buckner filed a demand for jury trial on the DUI charge and again requested a hearing on his appeal of the ALS. The court again continued the ALS appeal, until all pre-trial conferences were completed because of the court's concern over Buckner's two prior DUI offenses. The court then held pre-trial conferences on February 23, April 20, and May 11, 1995. Prior to the second of the these conferences, Buckner filed a motion to dismiss the current DUI charge, claiming deprivation of his right to due process and violation of protection against double jeopardy. On May 18, 1995, the court denied the motion to dismiss, conducted the ALS hearing and denied the ALS appeal. One week later, on May 24th, Buckner appeared before the Lyndhurst Municipal Court, withdrew his formerly entered plea of not guilty and entered a plea of no contest to the charge of driving under - 4 - the influence of alcohol. The court found Buckner guilty and consequently suspended his license for three years, but reduced that suspension by 132 days, the period of the ALS. Buckner now appeals his conviction for driving under the influence of alcohol and assigns two errors for our review. The first error states: I. THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO DISMISS AND ENTERING A JUDGMENT OF CONVICTION AGAINST APPELLANT SINCE THE IMMEDIATE SEIZURE OF HIS DRIVER'S LICENSE AND SUSPENSION OF HIS DRIVING PRIVILEGES WITHOUT SOME PRE- DEPRIVATION PROCEEDINGS OR PROTECTIONS, AND WITHOUT A TIMELY POST-SUSPENSION REVIEW, VIOLATED HIS RIGHT TO DUE PROCESS OF LAW UNDER THE UNITED STATES CONSTITUTION. Buckner here contends that the suspension of his driving privileges without a pre-deprivation hearing, together with a four and one-half month delay in conducting the ALS appeal hearing on that suspension, denied him the right to due process of law. The City of Mayfield Heights, however, argues that the ALS described in R.C. 4511.191 is constitutional under standards set forth in Mathews v. Eldridge (1976), 424 U.S. 319, and Mackey v. Montrym (1979), 443 U.S. 1. The issue then for our determination is twofold: (1) Whether the administrative suspension of a driver's license without pre-deprivation proceedings violates due process; and, (2) Whether a four and one-half month delay of an appeal on the - 5 - administrative suspension deprived Buckner of due process in this case. Regarding the first aspect of this issue, the court in Mathews v. Eldridge (1976), 424 U.S. 319, set forth three factors to consider in determining whether due process violations occur in connection with administrative deprivation of a drivers license: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Mathews v. Eldridge (1976), 424 U.S. 319, 335. The Ohio Supreme Court employed the Mathews test in State v. Hochhausler (1996), 76 Ohio St.3d 455, and held that the adminis- trative license suspension provisions of R.C. 4511.191 do not violate the right to procedural due process. We, therefore, adopt this reasoning, follow the Hochhausler decision, and conclude that the statute, on its face, is constitutional. Regarding the second aspect of Buckner's position, the four and one-half month delay of his ALS appeal, we must determine whether the application of R.C. 4511.191 in this case denied him procedural due process. The court in Hochhausler, supra, considered the availability of prompt post-suspension review and its affect on the private interest. Noting that an individual can appeal an ALS at an - 6 - initial court appearance which must be held within five days of arrest, the court concluded any wrongful deprivation prior to the time of the hearing would be "minimal." We note that the U.S. Supreme Court considered a similar issue in Mackey, supra, where a Massachusetts statute mandated immediate "suspension of a driver's license for refusing to take a breath-analysis test," Id. at 1, and found the suspension procedure constitutional because the statute afforded the licensee an immediate hearing which the court calculated could occur, at the latest, 7 to 10 days after the suspension. In this case, 132 days elapsed between Buckner's license suspension and judicial review of that deprivation. This is constitutionally impermissible, despite provisions of the Ohio statute which permit the court to continue the review hearing on its own motion. Initially, the trial court agreed to re-schedule the ALS appeal hearing dependant upon the court's heavy schedule and the City of Mayfield Height's docket with the court. These are valid considerations, which justify a reasonable continuance of the appeal hearing. However, the trial court expressed concern over Buckner's prior DUI offenses is not a proper matter for the court to consider as a basis to delay the ALS review hearing. Under the facts presented in this case, a 132 day delay is not 1 reasonable considering the limited nature of an ALS appeal. - 7 - A trial judge is duty bound to conduct an immediate post- deprivation review hearing in order to avoid constitutional due process violations which occur by delaying that hearing. See Hochhausler, Mathews, and Mackey, supra. In this case, the court failed to accord Buckner procedural due process rights, and thereby, rendered the ALS unconstitutional as applied to him. Trial judges are obligated by their oath to timely conduct these hearings and to enforce the provisions of R.C. 4511.191. Since the trial court credited the 132 day ALS suspension against Buckner's three-year DUI license suspension, however, the due process violation in this case did not substantially prejudice Buckner and no evidence of prejudice is contained in the record before us. See Chapman v. California (1967), 386 U.S. 18, 24. Accordingly, this assignment of error is well taken, but does not affect the outcome of this case. The second assignment of error states: II. THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO DISMISS AND ENTERING A JUDGMENT OF CONVICTION AGAINST APPELLANT SINCE THE IMPOSITION OF HIS ADMINISTRATIVE LICENSE SUSPENSION AND HIS SUBSEQUENT CRIMINAL CONVICTION VIOLATED THE UNITED STATES CONSTITUTIONAL PROHIBITION AGAINST DOUBLE JEOPARDY. Buckner argues the municipal court erred in denying his motion to dismiss because the administrative license suspension in conjunction with the subsequent prosecution for driving under - 8 - the influence of alcohol constitute multiple punishment for the same offense, i.e., double jeopardy. The City of Mayfield Heights, however, contends that the court properly denied the motion to dismiss because the ALS is an administrative action and thus, does not constitute criminal prosecution. Therefore, the city argues that there is no double jeopardy problem because the subsequent criminal proceeding for driving under the influence is the only form of criminal punishment instituted for the offense. The issue then for our determination is whether the administrative license suspension and subsequent prosecution for driving under the influence of alcohol subjected Buckner to double jeopardy. The Ohio Supreme Court in State v. Gustafson (1996), 76 Ohio St.3d 425, directly addressed this issue and determined that "an administrative suspension of one's driver's license is not the type of proceeding to which double jeopardy protection attaches so as to preclude a subsequent criminal prosecution." Id. at 436. Thus, pursuant to the holding in Gustafson, which we are constrained to follow, we conclude the administrative license suspension and the subsequent prosecution for driving under the influence did not place Buckner in double jeopardy. Pursuant to R.C. 4511.191(K), the registrar was required to terminate Buckner's ALS upon receipt of notice of his entering a plea of guilty to DUI charges, because the ALS was based upon - 9 - Buckner's refusal of a chemical test. Accordingly, the trial court properly denied the motion to dismiss and this assignment of error is therefore overruled. In accordance with the foregoing analysis, the judgment of the trial court is affirmed. Judgment affirmed. 1. Pursuant to R.C. 4511.191 (H)(1), "the scope of the appeal is limited to determining whether one or more of the following conditions have been met:" (a) Whether the law enforcement officer had reasonable ground to believe the arrested person was operating a vehicle upon a highway or public or private property used by the public for vehicular travel or parking within this state while under the influence of alcohol, a drug of abuse, or alcohol and a drug of abuse or with a prohibited concentration of alcohol in the blood, breath, or urine and whether the arrested person was in fact placed under arrest; (b) Whether the law enforcement officer requested the arrested person to submit to the chemical test designated pursuant to division (A) of this section; (c) Whether the arresting officer informed the arrested person of the consequences of refusing to be tested or of submitting to the test; (d) Whichever of the following is applicable: (i) Whether the arrested person refused to submit to the chemical test requested by the officer; (ii) Whether the chemical test results indicate that his blood contained a concentration of ten- hundredths of one per cent or more by weight of alcohol, his breath contained a concentration of ten-hundredths of one gram or more by weight of alcohol per two hundred ten liters of his breath, or his urine contained a concentration of - 10 - fourteen-hundredths of one gram or more by weight of alcohol per one hundred milliliters of his urine at the time of the alleged offense. - 11 - 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. BLACKMON, P.J., and NAHRA, J., CONCUR JUDGE TERRENCE O'DONNELL 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 .