COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70128 CITY OF FAIRVIEW PARK : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION CATHERINE L. NOVICKY : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 19, 1996 CHARACTER OF PROCEEDING: CRIMINAL APPEAL FROM THE ROCKY RIVER MUNICIPAL COURT CASE NO. 95-TRC-329 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: JAMES F. SHANNON (#0031321) FAIRVIEW PARK PROSECUTOR 516 STANDARD BUILDING 1370 ONTARIO STREET CLEVELAND, OHIO 44113 For Defendant-Appellant: KENNETH A. BOSSIN (#0059176) 330 STANDARD BUILDING 1370 ONTARIO STREET CLEVELAND, OHIO 44113-1701 - 2 - SPELLACY, C.J.: Defendant-appellant Catherine L. Novicky ("appellant") appeals the denial of her motion to dismiss driving under the influence of alcohol charges on double jeopardy grounds. Appellant assigns the following error for review: THE IMPOSITION OF AN ADMINISTRATIVE LICENSE SUSPENSION PURSUANT TO OHIO REVISED CODE SECTION 4511.191 CONSTI- TUTES PUNISHMENT ADMINISTERED IN A SEPARATE PROCEEDING FOR THE PURPOSES OF THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE ONE, SECTION TEN OF THE OHIO CONSTITUTION AND THE TRIAL COURT ERRED IN OVERRULING DEFENDANT/APPELLANT'S MOTION TO DISMISS THE DRIVING UNDER THE INFLUENCE CHARGES PENDING AGAINST HER. Finding the appeal to lack merit, the judgment of the trial court is affirmed. I. On January 9, 1995, appellant was stopped by a Fairview Park Police officer for speeding. Appellant then was arrested for driving under the influence of alcohol and operating a motor vehicle with a blood alcohol content in excess of .10. Appellant's drivers license was seized during the arrest. On January 9, 1995, appellant's driving privileges were suspended pursuant to R.C. 4511.19l(F) for ninety days. On March 10, 1995, appellant filed a motion to dismiss the charges on double jeopardy grounds and to suppress the results of her breathalyzer test. The trial court denied the motion. The trial court found the separate and independent civil administrative license suspension procedure of R.C. 4511.191 to be remedial in nature and - 3 - not a punishment under the double jeopardy clause. On December 4, 1995, appellant entered a plea of no contest and was found guilty of the charges. II. In her assignment of error, appellant contends the trial court erred in denying appellant's motion to dismiss because the administrative license suspension was punishment for the purposes of the double jeopardy clauses of both the United States and Ohio Constitutions. This issue has been resolved by the Supreme Court of Ohio in State v. Gustafson (1996), 76 Ohio St.3d 425, which held: 1. The Double Jeopardy Clauses of the Fifth Amendment to the United States Constitution and Section 10, Article I 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 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. Id., paragraphs one, two, and three of the syllabus. - 4 - Appellant's license was suspended pursuant to R.C. 4511.191 for ninety days commencing on January 9, 1995. She was found guilty of driving under the influence of alcohol and operating a motor vehicle with a blood alcohol content in excess of .10 on December 4, 1995. At the time appellant entered her plea of no contest, her administrative license suspension had ended. Pursuant to Gustafson, the penalties were not double jeopardy as the suspension did not continue subsequent to her adjudication and sentencing. Appellant's assignment of error is overruled. Judgment affirmed. - 5 - 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 Rocky River 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. TERRENCE O'DONNELL, J. and JOHN T. PATTON, J. CONCUR. LEO M. SPELLACY CHIEF JUSTICE N.B. This 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(B) 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 .