COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69567 : ACCELERATED DOCKET CITY OF CLEVELAND : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION GREGORY MICHAEL : : Defendant-Appellant : PER CURIAM : : DATE OF ANNOUNCEMENT OF DECISION : OCTOBER 3, 1996 CHARACTER OF PROCEEDING : Criminal appeal from : Cleveland Municipal Court : Case No. 95 TRC 026275 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : __________________________ APPEARANCES: For plaintiff-appellee: CAROLYN W. ALLEN Chief City Prosecutor ANN M. FEIGHAN, Assistant Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: PAUL J. STANO Attorney at Law 6650 Pearl Road, Suite 202 Parma Heights, Ohio 44130 - 2 - PER CURIAM: This cause came on to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.R. 25, the records from the Cuyahoga County Court of Common Pleas, and the briefs of counsel. 1 Defendant-appellant Gregory Michel appeals the decision of the trial court which denied his motion to dismiss the charges against him in the court below. Finding no error, we affirm the decision of the trial court. The record reflects that at 2:35 p.m. on June 2, 1995, Gregory Michel was arrested and issued three traffic tickets. Michel was charged with violation of Cleveland Codified Ordinance 433.01(a)(1) (Operating a Motor Vehicle/Driving under the Influ- ence [hereinafter "OMV/DUI"]); 433.01(a)(3) (Operating a Motor Vehicle/Breath-Alcohol Content [hereinafter "OMV/BAC"]); and 433.34(a) (Failure to Control Vehicle). Michel's breath-alcohol test registered .241. The DUI charge was Michel'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 Michel's license. By law, 1 Briefs filed in this case have consistently incorrectly spelled the defendant's last name as "Michael." The record indicates, however, that the correct spelling is "Michel," and this Opinion will reflect the correct spelling of defendant's name. - 3 - the duration of Michel'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). On June 5, 1995, at his initial appearance, Michel appealed the ALS but, on June 21, 1995, withdrew his appeal and was granted limited occupational driving privileges. On July 12, 1995, defendant moved to dismiss the criminal DUI charges pending against him on double jeopardy grounds. On Sep-tember 13, 1995, the motion to dismiss for double jeopardy was denied. Upon denial of his motion, Michel entered a plea of no contest to Cleveland Cod. Ord. 433.01(a)(3) (DUI/BAC), and a judg-ment of conviction was entered on that charge. The remaining charges were dismissed. Michel was sentenced to ninety days in jail and fined $500 and costs. The court ordered the jail sentence suspended and placed the defendant on active probation for a period of one year. Execution of sentence was stayed by the court-pending appeal. 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 prose- - 4 - cution 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. Missouri v. Hunter (1983), 459 U.S. 359, 103 S.Ct. 673. In this case, the appellant was convicted of violating Cleveland Codified Ordinance 433.01. 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 suspension 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 conviction, 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 terminated 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 - 6 - in this instance did not constitute punishment, and this appellant was not "punished" 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. Accordingly, the decision of the trial court is affirmed. - 7 - This cause is affirmed. 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 Cleveland 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. JAMES D. SWEENEY, PRESIDING JUDGE ANN DYKE, JUDGE TIMOTHY E. McMONAGLE, 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 .