COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69796 CITY OF BROOK PARK : : : PLAINTIFF-APPELLANT : JOURNAL ENTRY : v. : AND : RICKY CARTER : OPINION : : DEFENDANT-APPELLEE : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 26, 1996 CHARACTER OF PROCEEDING: Civil appeal from Berea Municipal Court, No. 95-TRC-1546. JUDGMENT: REVERSED AND REMANDED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellant: Neal M. Jamison, Esq. 5709 Smith Road Brook Park, OH 44142 For Defendant-Appellee: James R. Douglass, Esq. Zellmer & Gruber 1400 Leader Building Cleveland, OH 44114 -2- DAVID T. MATIA, J.: The city of Brook Park, plaintiff-appellant, appeals the decision of the Berea Municipal Court granting Ricky Carter's, defendant-appellee's, motion to dismiss charges of driving under the influence of alcohol. Plaintiff-appellant assigns one error for review. This court, finding error, reverses the decision of the trial court and remands this case back to trial. I. STATEMENT OF FACTS On April 29, 1995, Ricky Carter, defendant-appellee, was observed to be erratically driving his automobile by Officer James Stopiak of the Brook Park Police Department. Officer Stopiak pulled defendant-appellee over and observed that defendant-appellee had a strong odor of alcohol on his breath, bloodshot eyes and slurred speech. Moreover, defendant-appellee was unable to walk more than two steps in a straight line. Based upon these observations, defendant-appellee was arrested. It was further discovered that defendant-appellee had been driving while his driving privileges were suspended. While at the police station, defendant-appellee was given a breath test to determine the level of alcohol in his system. The results were .314 of alcohol per 210 liters of breath. This is over three times the legal limit. Defendant-appellee was charged with driving under the influence of alcohol in violation of R.C. 4511.19(A)(1) and 4511.19(A)(3). Additionally, defendant-appellee was subjected to an administrative license suspension for ninety days pursuant to R.C. 4511.191. -3- Defendant-appellee filed a motion to dismiss the charges of driving under the influence of alcohol. Defendant-appellee based his motion upon his right to be free from double jeopardy. On October 2, 1995, the trial court granted defendant-appellee's motion. The city of Brook Park, plaintiff-appellant, timely filed this appeal. II. ASSIGNMENT OF ERROR The city of Brook Park, plaintiff-appellant, states as its sole assignment of error: THE TRIAL COURT ERRED IN FINDING THAT THE IMMEDIATE IMPOSITION OF A DRIVER'S LICENSE SUSPENSION UNDER R.C. 4511.191 FOR EITHER REFUSING TO SUBMIT TO A BLOOD ALCOHOL TEST OR FAILING A BLOOD ALCOHOL TEST AND A SUBSEQUENT CRIMINAL PROSECUTION UNDER R.C. 4511.19 FOR DRIVING WHILE INTOXICATED CONSTITUTES A VIOLATION OF THE DOUBLE JEOPARDY CLAUSE OF EITHER THE OHIO OR UNITED STATES CONSTITUTION. A. ISSUE RAISED: WHETHER THE TRIAL COURT ERRED IN GRANTING DEFENDANT-APPELLEE'S MOTION TO DISMISS. Plaintiff-appellant argues the trial court erred in granting defendant-appellee's motion to dismiss. Specifically, plaintiff- appellant argues the prosecution of a charge of driving under the influence pursuant to R.C. 4511.19 subsequent to the imposition of an administrative license suspension pursuant to R.C. 4511.191 does not constitute double jeopardy. Plaintiff-appellant's sole assignment of error is well taken. B. DOUBLE JEOPARDY ANALYSIS. The Fifth Amendment of the United States Constitution states in pertinent part: -4- "*** nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb ***. Similarly, Article I, Section 10 of the Ohio Constitution states, in pertinent part: "No person shall be twice put in jeopardy for the same offense." The double jeopardy clause of the United States Constitution and Ohio Constitution bars: 1) a second prosecution for the same offense after acquittal, 2) a second prosecution for the same offense after conviction, and 3) multiple punishments for the same offense. North Carolina v. Pearce (1969), 395 U.S. 711; United States v. Halper (1989), 490 U.S. 435. In Montana Dept. of Revenue v. Kurth Ranch (1994) 511 U.S. ____, 114 S.Ct. 1937, 128 L.Ed.2d 767, the United States Supreme Court set forth a three-part test to determine whether the Double Jeopardy Clause bars the state from prosecuting a criminal defendant after civil penalties have been imposed: 1) whether the sanctions are imposed for the same alleged conduct, 2) whether the civil and criminal sanctions are imposed in separate proceedings, and 3) whether the separate civil sanction constitutes "punishment" for double jeopardy purposes. See, also, State v. Ackrouche (April 5, 1995), Franklin County Municipal Court, No. M-9410TFC-145054, unreported. C. THE TRIAL COURT ERRED IN GRANTING DEFENDANT-APPELLEE'S MOTION TO DISMISS. The Ohio State Supreme Court recently pronounced the following: -5- 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. 4511.191 based upon, and subsequent to, the imposition of an administrative license suspension pursuant to R.C. 4511.191. State v. Gustafson (1996), 76 Ohio St.3d 425, paragraph one of the syllabus. Accordingly, the trial court erred in granting defendant-appellee's motion to dismiss based upon the perceived violation of his right against double jeopardy. Judgment reversed and remanded. -6- This cause is reversed and remanded for further proceedings consistent with the opinion herein. It is, therefore, considered that said appellant recover of said appellee its costs herein. It is ordered that a special mandate be sent to said 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. HARPER, P.J. and KARPINSKI, J., CONCUR. DAVID T. MATIA 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 .