COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69484 CITY OF MAPLE HEIGHTS : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION MICHAEL SHEPERD : : Defendant-appellant : : DATE OF ANNOUNCEMENT : OF DECISION : DEC. 19, 1996 CHARACTER OF PROCEEDING : Criminal appeal from Garfield Heights Municipal : Court Case No. 94-TRD-6934 JUDGMENT : Affirmed and remanded with instructions. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: Michael Ciaravino, Esq. Larry W. Zukerman, Esq. Prosecuting Attorney Zukerman & Associates City of Maple Heights 160 Signature Square I 5353 Lee Road 25201 Chagrin Boulevard Mapale Heights, Ohio 44127 Cleveland, Ohio 44122 -2- HARPER, P.J.: On October 19, 1994, a city of Maple Heights police officer arrested defendant-appellant, Michael Sheperd, for operating a motor vehicle under the influence of alcohol. A subsequent breath test, administered at the police department, registered .115. The police officer immediately issued an Administrative License Suspension of appellant's driver's license pursuant to R.C. 4511.191. The city thereafter charged appellant with driving a motor vehicle under the influence of alcohol, R.C. 4511.19(A)(1); driving with a prohibited blood alcohol concentration, R.C. 4511.19(A)(3); and failing to maintain a lane of travel, R.C. 4511.25. Appellant filed a motion to dismiss these charges on December 28, 1994, arguing that the prosecution violated the Double Jeopardy Clause of the United States and Ohio Constitutions. The Garfield Heights Municipal Court overruled the motion. Appellant entered a plea of no contest on July 25, 1995 to the charge of violating R.C. 4511.19(A)(3). The trial court rendered a guilty verdict as to this charge, merged it with the driving under the influence charge, and nolled the lane of travel charge. The court sentenced appellant to 180 days, 170 days suspended; fined him $1500, $750 suspended; placed him on inactive probation for a period of two years; and suspended his driver's license for one year, with limited work driving privileges. Regarding the license suspension, the trial court gave appellant credit from the date of -2- arrest. Appellant's sentence was stayed pending the outcome of this appeal. Appellant claims in the sole assignment of error: I. THE TRIAL COURT ERRED IN FINDING THAT A CRIMINAL PROSECUTION UNDER [SECTION] 4511.19 OF THE OHIO REVISED CODE FOLLOWING AN ADMINISTRATIVE LICENSE SUSPENSION UNDER [SECTION] 4511.191 DOES NOT CONSTITUTE MULTIPLE PUNISHMENTS FOR THE SAME OFFENSE IN VIOLATION OF THE DOUBLE JEOPARDY CLAUSE IN THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION, AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION. Appellant attacks the constitutionality of his R.C. 4511.19 prosecution. He argues that once his driving privileges were automatically suspended under R.C. 4511.191, the Double Jeopardy Clauses of the United States and Ohio Constitutions barred the subsequent prosecution for the same conduct forming the basis for the suspension. In State v. Gustafson (1996), 76 Ohio St.3d 425, the Supreme Court of Ohio addressed this very issue when presented with five consolidated cases and a case certified for conflict. The court, in conducting its double jeopardy review, engaged in the following tripartite analysis: (1) whether an administrative license suspension and a criminal DUI prosecution constitute "multiple prosecutions," (2) whether an ALS and a criminal prosecution for driving under the influence of intoxicants constitute separate proceedings based on the same conduct, and (3) whether "multiple punishments" are imposed where judicial sentencing following conviction of driving while under the influence as well as a statutory license suspension are imposed. Id., 435. See United States v. Halper (1989), 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487. -3- The Gustafson court initially acknowledged that a criminal prosecution after an immediate ALS does not cause the defendant to undergo a second trial since there was never a "first trial." Gustafson, 436. The purpose behind the Double Jeopardy Clause, i.e., to preclude a second criminal trial after jeopardy attaches in the first trial, is not served under these circumstances. See Id., 435. The Double Jeopardy Clauses of the Fifth Amendment to the United States Constitution and Article I, Section 10 of the Ohio Constitution, therefore, do not prohibit criminal prosecution of motorists under R.C. 4511.19 subsequent to the imposition of an administrative license suspension pursuant to R.C. 4511.191. Id., paragraph one of the syllabus. Consequently, when an ALS occurs at the time of arrest, a trial court should overrule a defendant's motion to dismiss subsequent criminal driving under the influence charges based on double jeopardy principles. Id., 437. The court next determined whether an ALS and a criminal prosecution occur in the same versus separate proceedings since multiple punishments can only be imposed in a single proceeding. Id, citing Dept. of Revenue of Montana v. Kurth Ranch (1994), 511 U.S. , 114 S.Ct. 1937, 128 L.Ed.2d 767 and Halper. Since an ALS occurs at the time the officer physically seizes the license and criminal prosecution occurs thereafter, a R.C. 4511.191 ALS and a R.C. 4511.19 criminal DUI prosecution arising out of the same arrest are "separate" proceedings for double jeopardy purposes. Id., paragraph two of the syllabus. -4- Based upon the foregoing conclusions, the Gustafson court realized that double jeopardy is only implicated in ALS and DUI proceedings upon multiple punishments for the same offense. Id., 438. It is irrelevant whether the ALS occurs as a result of a test refusal or test failure. Id. Despite the repeated characterization of driver's license suspensions as civil in nature and remedial in purpose, the Gustafson Court recognized the underlying theme of Halper and its progeny, i.e., remedial sanctions may be deemed "punishment" for double jeopardy purposes when they "'cross the line.'" Id., 440. An ALS "'crosses the line,' transforming an initially remedial license suspension into a punishment for double jeopardy purposes, at the point of criminal sentencing after a DUI conviction for violation of R.C. 4511.19." Id., 442. If the ALS is recognized or enforced beyond the time of sentencing, the ALS is cumulative punishment and precluded by the Double Jeopardy Clauses of the United States and Ohio Constitutions. Id., paragraph four of the syllabus. After formulating these legal principles, the Gustafson court applied them to the six factual scenarios before it. All of the cases are distinguishable from the one presently before this court. Gustafson's criminal case was not disposed of since the trial court dismissed the charges based on double jeopardy grounds, a ruling affirmed on appeal. The Supreme Court of Ohio reversed the ruling and remanded the action, providing "observations" in the process. Id., 443. -5- Two other cases involved defendants who refused chemical testing at the time of arrest. They later entered pleas of no contest to the DUI charges against them. Since R.C. 4511.191(K) expressly authorizes termination of an ALS when a defendant refused a chemical test and then entered a "no contest" plea, the trial courts, as recognized by the Third District Court of Appeals, properly refused to dismiss the criminal proceedings based upon double jeopardy grounds. Id., 444. These causes were affirmed, but remanded with instructions that the trial courts issue orders to the Bureau of Motor Vehicles to terminate the license suspensions, retroactive to the date of sentencing on the respective DUI convictions. Id. The remaining three defendants consented to and failed breath- alcohol testing. The trial courts, upon conviction and sentencing, ordered the termination of the automatic license suspensions because at that point they were no longer remedial. Although the principles of double jeopardy were not violated in this context, the Gustafson court cautioned that R.C. 4511.191 would have been unconstitutionally applied to them if the license suspensions were recognized beyond conviction and criminal sentencing. Id., 445. Under these circumstances, the defendants would have been subjected to two punishments in separate proceedings based on the same conduct. Id., 444. The Gustafson court clearly enunciated that not all criminal prosecutions under R.C. 4511.19 following an ALS under R.C. 4511.191 are constitutional under the Double Jeopardy Clauses of -6- the United States and Ohio Constitutions. The circumstances which would warrant a finding of unconstitutionality, as set forth supra, are present in the appeal now before this court. Appellant was arrested on October 19, 1994 for driving under the influence of alcohol. The arresting officer seized his driver's license pursuant to R.C. 4511.191(D) and prepared the necessary form based upon appellant's chemical test results. The record reveals that appellant had prior DUI convictions, but only one occurred within the five years prior to appellant's arrest. The record, however, does not indicate whether appellant refused or consented to a prior chemical test. Depending on whether his prior DUI offense was associated with a refusal or consent, the ALS was either for ninety days, one year or two years. See R.C. 4511.191(E), (F). The trial court found appellant guilty of violating R.C. 4511.19(A)(3) on July 25, 1995. The court suspended appellant's driver's license pursuant to R.C. 4501.16 for a period of one year, with credit given since the date of appellant's arrest. The record otherwise does not contain any mention of the ALS which may conceivably still be in effect. Since there is no automatic termination of an ALS under these circumstances in contrast to the circumstances governed by R.C. 4511.191(K), appellant was potentially subjected to a second punishment on July 25, 1995 when he was convicted and sentenced on the DUI criminal charge without the termination of the ALS if it were still in effect. Gustafson. Appellant's assignment of error is sustained. -7- Judgment affirmed; cause remanded to the trial court with instruction to issue an order to the BMV, if warranted, to terminate the ALS retroactive to the date of sentencing on the criminal charge. -8- It is ordered that the parties absorb their own costs. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Garfield Heights Municipal Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DAVID T. MATIA, J., CONCUR; DIANE KARPINSKI, J., CONCURS IN PART AND DISSENTS IN PART (SEPARATE OPINION ATTACHED). PRESIDING JUDGE SARA J. HARPER N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 25(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 clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69484 : CITY OF MAPLE HEIGHTS : : : CONCURRING Plaintiff-Appellee : : AND v. : : DISSENTING MICHAEL SHEPERD : : OPINION : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 19, 1996 KARPINSKI, J., CONCURRING IN PART AND DISSENTING IN PART: I concur in the majority's affirmance of defendant's criminal conviction, but respectfully dissent from its disposition of the ALS for the reasons set forth in City of Maple Heights v. Piwinski (Dec. 5, 1996), Cuyahoga App. No. 69485, unreported. The record does not clearly show that defendant's ALS continued beyond the date of his sentence in the criminal case. As .