COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70179 CITY OF CLEVELAND, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION WILLIAM NOSS, : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION : NOVEMBER 27, 1996 CHARACTER OF PROCEEDING : Criminal appeal from : Cleveland Municipal Court : Case No. 95-TRC-031231 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: Carolyn Watts Allen Cleveland City Prosecutor The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Kenneth A. Bossin 330 Standard Building 1370 Ontario Street Cleveland, Ohio 44113-1701 -2- NAHRA, J.: Appellant, William Noss ("Noss"), appeals his conviction for driving under the influence of alcohol in violation of Cleveland City Ordinance 433.01(A)(4). Noss assigns error to both the conviction and to the trial court's denial of his motion to suppress evidence. The material facts are not in dispute. On July 11, 1995, a Cleveland Police officer arrested Noss for driving under the influence of alcohol and for weaving. Pursuant to R.C. 4511.191, the police officer affected an administrative suspension of Noss' drivers license. Additionally, at a time not disclosed in the limited record presented on appeal, a urine sample was taken from Noss. Tests thereon indicated a blood alcohol level of 0.22. Noss entered a plea of not guilty and moved to suppress the results of the urine test on the ground that it was not performed in accordance with Ohio law. On January 5, 1996, the trial court denied Noss' motion to suppress and entered a verdict of guilty. In accordance with its verdict, the trial court suspended Noss' drivers license retroactively from July 11, 1995, until January 11, 1996. I. Appellant's first assignment of error states: THE IMPOSITION OF AN ADMINISTRATIVE LICENSE SUSPENSION PURSUANT TO OHIO REVISED CODE SECTION 4511.191 CONSTITUTES PUNISHMENT ADMINISTERED IN A SEPARATE PROCEEDING FOR THE PURPOSES OF THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION -3- 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 HIM. In State v. Gustafson (1996), 76 Ohio St.3d 425, the Ohio Supreme Court considered this precise issue. The Court stated at paragraph one of the syllabus: 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. It is clear from the Court's holding in Gustafson, that R.C. 4511.191 is remedial in nature until the imposition of a criminal sentence upon conviction. Id., at paragraph four of the syllabus. Accordingly, imposition of an administrative license suspension pursuant to R.C. 4511.191 does not preclude prosecution for violation of either R.C. 4511.19 or any analogous local ordinance. Appellant was properly prosecuted and his first assignment of error is without merit. II. Appellant's second assignment of error states: THE TRIAL COURT ERRED TO THE PREJUDICE OF THE DEFENDANT/APPELLANT IN OVERRULING HIS MOTION TO SUPPRESS EVIDENCE WHERE THE STATE FAILED TO SHOW THAT THE URINE TEST ADMINISTERED TO THE DEFENDANT/APPELLANT WAS PERFORMED IN ACCORDANCE WITH THE OHIO DEPARTMENT OF HEALTH REGULATIONS, THE OHIO ADMINISTRATIVE CODE AND THE OHIO REVISED CODE. -4- Essentially, appellant contends that the state failed to establish the necessary foundation to admit the results of the urine test. Specifically, Noss maintains that the testimony of the laboratory technician who performed the tests was not sufficient to establish: 1) that the urine testing equipment was properly calibrated; and 2) that the technician held a valid testing permit. Appellant argues that the state must produce corroborating documentation on each of these two foundational requirements. R.C. 4511.19(D) articulates the elements required to establish the admissibility of urine test results. Essentially, the state must demonstrate that the sample was taken from the defendant within two hours of the alleged violation, that the substance taken was analyzed in accordance with methods approved by the director of health, and that the analysis was completed by a person holding the appropriate permit. Appellee presented evidence demonstrating each facet of the foundation through the testimony of Joseph Serowik ("Serowik"). Serowik is an examiner in the forensic science laboratory of the Cleveland Police Department. Serowik testified that at the time of the urine analysis, he had a valid Alcohol Testing Approval and Permit Certificate. Serowik also stated that he calibrated the testing equipment immediately prior to testing appellant's urine. Although appellee did not present any corroborating evidence, Serowik's testimony establishes the requisite foundation to admit the results of the urine analysis. See City of Dublin v. Young (1996), 75 Ohio St.3d 472, 476, 663 N.E.2d 1270; City of -5- Cincinnati v. Duhart (1974), 41 Ohio App.2d 127, 132, 322 N.E.2d 897; City of Cleveland v. Smith (April 2, 1992), Cuyahoga App. Nos. 60348, 60349, unreported. Accordingly, appellant's second assignment of error is overruled. 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 Cleveland 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. SPELLACY, C.J., and PATTON, J., CONCUR. JOSEPH J. NAHRA 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 .