COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69680 CITY OF PARMA : : ACCELERATED DOCKET Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION PAUL J. KUCZERYN : : PER CURIAM Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 3, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Parma Municipal Court Case No. 95-TRC-255 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For plaintiff-appellee: For defendant-appellant: WILLIAM D. MASON, ESQ. WALTER P. BUBNA, ESQ. CHIEF PROSECUTOR 5700 Pearl Road, Suite 304 City of Parma Cleveland, Ohio 44129 5750 West 54th Street Parma, Ohio 44129 - 2 - PER CURIAM: Defendant Paul J. Kuczeryn appeals from his conviction for driving under the influence of alcohol, and failing to yield the right of way. For the reasons set forth below, we affirm. On January 17, 1995, defendant was involved in a motor vehicle collision on State Road, in Parma. He was subsequently issued citations for operating a motor vehicle with a prohibited blood alcohol concentration (hereafter referred to as "BAC") in violation of Parma Codified Ordinances Section 333.01(A)(3), driving under the influence of alcohol in violation of Parma Codified Ordinances Section 333.01(A)(1), failing to identify himself following a motor vehicle accident in violation of Parma Codified Ordinances Section 335.15, and failing to yield the right of way in violation of Parma Codified Ordinance 331.17. Following his arrest, defendant submitted to a breath test which revealed a concentration level of .213. The Parma Police then administratively suspended defendant's driver's license pursuant to R.C. 4511.191(D). The record reflects that defendant was a first offender within the contemplation of R.C. 4511.191(F)(1), and by operation of this statute, the duration of the ALS was ninety days, or until April 17, 1995. On January 24, 1995, defendant pleaded not guilty to the charges issued against him, but did not appeal the administrative license suspension (hereafter referred to as "ALS" or "ALS Positive Suspension") at - 3 - his initial appearance under the procedure set forth in R.C. 4511.191(H). On March 24, 1995, defendant moved to dismiss the BAC and driving under the influence charges. Defendant asserted that since the ALS Positive Suspension had been invoked, prosecution for the alcohol related charges would subject him to multiple punishments for the same offense in violation of the Double Jeopardy Clause of the Fifth Amendment of the Constitution of the United States. The trial court, in an en banc decision, determined that "the ALS Positive Suspension is in fact a mirror of the BAC charge under any of the 4511.19 Prohibited Concentration charges" [R.C. 4511.19(A)(3)]. The court therefore held that the charge of driving with a prohibited BAC could not be prosecuted. The trial court further determined, however, that the ALS Positive Suspension was not the same offense as driving under the influence of alcohol as proscribed by R.C. 4511.19(A)(1) since a key element of the latter offense is impairment by reason of alcohol, and this element is not required in establishing the ALS Positive Suspension. The court therefore held that the charge of driving under the influence of alcohol could be prosecuted without violating the constitutional prohibition against Double Jeopardy. The driving under the influence, failure to identify, and failure to yield the right of way charges were subsequently set for a jury trial on September 12, 1995. On September 11, 1995, the city prosecutor moved to dismiss the failure to identify charge and - 4 - defendant pleaded no contest to the remaining charges. The trial court found him guilty. At the subsequent sentencing proceeding, the court suspended his driver's license for 180 days, sentenced him to eighteen months probation with additional terms, and ordered that he complete a 72 Hour Alcohol Program and attend three Alcohol Anonymous meetings, as the penalty for driving under the influence. The court also fined defendant $50 as the penalty for failing to yield. Defendant now appeals and assigns two errors for our review. Defendant raises two related assignments of error which state: THE TRIAL COURT ERRED IN DENYING DEFENDANT-APPELLANT'S MOTION TO DISMISS ALL CHARGES AGAINST HIM UNDER THE DOUBLE JEOPARDY CLAUSE OF THE CONSTITUTION. THE TRIAL COURT ERRED IN FAILING TO DISMISS THE D.U.I.A. CHARGE AGAINST DEFENDANT-APPELLANT SINCE HE WAS ALREADY PUNISHED BY AN ADMINISTRATIVE LICENSE SUSPENSION (ALS), FOR THE SAME ACTS, AND CANNOT BE PUNISHED AGAINST (sic) BY THE COURT FOR THE SAME ACTS, AS THAT WOULD CONSTITUTE A DOUBLE JEOPARDY VIOLATION UNDER THE U.S. AND OHIO CONSTITUTION. Defendant acknowledges that our disposition of this matter is governed by the Supreme Court's recent decision in State v. Gustafson (1996), 76 Ohio St.3d 425. In Gustafson, supra, paragraphs one through three of the syllabus, the Supreme Court held: 1. 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 - 5 - to, the imposition of an administrative license suspension pursuant to R.C. 4511.191. 2. An 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 proceedings for double jeopardy purposes. 3. For 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. By application of the foregoing, we hold that the trial court was not required to dismiss any of the drunk driving charge in the court proceedings. That is, the administrative license suspension is not "a proceeding to which jeopardy attaches so as to preclude subsequent criminal prosecution for drunk driving." Id., at 435- 436. Further, since defendant's ALS expired prior to the disposi- tion of the drunk driving charges, no Double Jeopardy violation has been established from imposition of that administrative proceeding. Judgment affirmed. - 6 - 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 Parma 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, 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 of decision by the .