COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70322 : ACCELERATED DOCKET CITY OF MAPLE HEIGHTS : : : JOURNAL ENTRY Plaintiff-Appellee : : and v. : : OPINION WINSTON A. TOBIAS : : : PER CURIAM Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 12, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Garfield Heights Municipal Court Case No. 95-TRC-9789A-C JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: MICHAEL G. CIARAVINO, ESQ. FRED P. RAMOS, ESQ. Maple Heights Prosecutor One Summit Office Park 5353 Lee Road 4700 Rockside Road Maple Heights, Ohio 44137 Suite 650 Independence, Ohio 44131 - 2 - PER CURIAM: Defendant-appellant Winston Tobias appeals from an order of the Garfield Heights Municipal Court denying his motion to dismiss criminal charges against him on grounds of double jeopardy. Defendant was charged with the following three offenses on December 22, 1995: (1) operating a motor vehicle while under the influence of alcohol in violation of R.C. 4511.19(A)(1), (2) operating a motor vehicle with a prohibited breath alcohol concentration in violation of R.C. 4511.19(A)(3), and (3) driving left of center in violation of R.C. 4511.29. Defendant filed a motion to dismiss the charges against him, contending that the charges violated double jeopardy principles because an administrative license suspension had already been imposed against him for failing the breath alcohol test at the time of his arrest. The municipal court denied defendant's motion to dismiss. Defendant thereafter entered a plea of no contest to operating the vehicle while under the influence of alcohol in violation of R.C. 4511.19(A)(1). The municipal court found defendant guilty of this offense, dismissed the remaining charges, and sentenced him for operating a vehicle with a prohibited breath alcohol content in violation of R.C. 4511.19(A)(1), as appears of record. The municipal court stayed execution of sentence pending this appeal. - 3 - Defendant's sole assignment of error challenges the trial court's order denying his motion to dismiss the criminal charges as follows: THE DOUBLE JEOPARDY CLAUSE BARS THE STATE FROM PROSECUTION IN ACCORDANCE WITH OHIO REVISED CODE 4511.19 AFTER THE IMPOSITION OF AN ADMINISTRATIVE LICENSE SUSPENSION AS WELL AS SEIZURE OF THE MOTOR VEHICLE. This assignment lacks merit. Defendant argues the municipal court should have dismissed the criminal charges against him because it violated double jeopardy principles to maintain criminal proceedings against him after administratively suspending his driver's license and ordering immobilization of the vehicle he was driving in connection with the same incident. The Ohio Supreme Court unanimously rejected defendant's double jeopardy argument in State v. Gustafson (1996), 76 Ohio St.3d 425, syllabus paragraph one. The Gustafson Court specifically noted that a criminal action was not barred by double jeopardy principles merely because the defendant had previously received an administrative license suspension arising out of the same incident. Accord City of Brook Park v. Carter (Sept. 26, 1996), Cuyahoga App. No. 69796, unreported. The same principles apply to defendant's claim concerning the immobilization of his vehicle. Defendant has never argued, in the municipal court or in this court following Gustafson, that double jeopardy principles were violated because his ALS continued beyond the date of criminal sentencing. The dissent asserts this claim on his behalf, infra at p. 3. It is well settled, however, that constitutional decisions - 4 - should not be made until the necessity for a decision arises on the record before the court. Hal Artz Lincoln-Mercury, Inc. v. Ford Motor Co. (1986), 28 Ohio St.3d 20, 28 n. 6. The record in this case contains an uncertified, unauthenti- cated computer printout which indicates that defendant committed prior DUI offenses. However, this material is not competent evidence and should not be considered by this court. When there is no adequate record to establish an aggrieved party's claim of error, reviewing courts must presume regularity and affirm the judgment of trial courts, even in the context of constitutional claims. See State v. Pedreira (1988), 36 Ohio St.3d 614. Because we decline to express any opinion concerning the merits of this issue, defendant may elect to raise this matter without prejudice in the trial court. Accordingly, defendant's sole 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 Garfield Heights 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. SARA J. HARPER, PRESIDING JUDGE Concurs and Dissents (See Separate Opinion) DAVID T. MATIA, JUDGE DIANE KARPINSKI, 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 clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70322 CITY OF MAPLE HEIGHTS :CONCURRING AND DISSENTING : Plaintiff-appellee : OPINION : -vs- : : WINSTON A. TOBIAS : : Defendant-appellant : : DATE: DECEMBER 12, 1996 SARA J. HARPER, P. J., CONCURRING AND DISSENTING: I originally wrote a concurring and dissenting opinion in response to the majority's original opinion, an opinion that failed to display a full appreciation of the Supreme Court of Ohio's decision in State v. Gustafson (1996), 76 Ohio St.3d 425. Specifically, the original opinion failed to recognize that due process violations can still occur in driver's license suspension cases where sentence is rendered without termination of a still- in-effect suspension. The majority modified its original opinion as a result of my concurring and dissenting opinion. The majority now discusses how appellant is not entitled to a full review of his due process argument since he failed to raise the issue exactly addressed in my original opinion and in Gustafson. Finding that a "computerized printout" is not competent evidence conveniently justifies the end result reached by the majority. The majority otherwise comments -2- that appellant is free to pursue in the trial court the due process argument relating to suspensions beyond sentencing. I point out that cases such as appellant's are cases that were appealed prior to the release of Gustafson. My opinion that the case should be remanded for a determination of a due process violation is an interim one, i.e., once trial courts comply with Gustafson's legal prounouncements, such a remedy will hopefully not be necessary. On this note, I offer my original concurring and dissenting opinion in its entirety: I agree that a criminal prosecution under R.C. 4511.19 following an administrative license suspension ("ALS") under R.C. 4511.191 for the same conduct does not violate the Double Jeopardy Clauses of the United States and Ohio Constitutions. Appellant's assignment of error thus fails in this regard and his conviction remains valid. However, the majority opinion fails to recognize that the Gustafson court did not halt its analysis with the conclusion that a criminal prosecution may legitimately follow the automatic license suspension. A full reading of Gustafson reveals the Supreme Court of Ohio's clear declaration that double jeopardy may be implicated in the punishment phase of a criminal prosecution which follows an ALS under R.C. 4511.191. Despite the repeated characterization of driver's license suspensions as civil in nature and remedial in purpose, the Gustafson court recognized the underlying theme of United States v. -3- Halper (1989), 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 and its progeny, i.e., remedial sanctions may be deemed "punishment" for double jeopardy purposes when they "'cross the line.'" Gustafson, 440. An ALS "'crosses the line,' transforming an initially remedial license suspension into a punishment for double jeopardy purposes, at the point of criminal sentencing after a DUI conviction for violation of R.C. 4511.19." Id., 442. If the ALS is recognized or enforced beyond the time of sentencing, the ALS is cumulative punishment and precluded by the Double Jeopardy Clauses of the United States and Ohio Constitutions. Id., paragraph four of the syllabus. Herein, appellant was arrested on December 22, 1995 for driving under the influence of alcohol. The arresting officer seized his driver's license pursuant to R.C. 4511.191 and prepared the necessary form based upon appellant's chemical test result. The record discloses that appellant had one prior DUI conviction in 1991. The record indicates that the administrative license suspension is set to terminate on December 21, 1996. See R.C. 4511.191(F). After appellant entered a plea of no contest to driving under the influence, the trial court found him guilty on January 29, 1996. The court suspended appellant's driver's license pursuant to R.C. 4501.16 for a period of one year from the date of arrest. The record otherwise does not refer to the ALS which was still in effect on the date of sentencing. Since there is no automatic termination of an ALS under these circumstances in contrast to the -4- circumstances governed by R.C. 4511.191(K), appellant was unconstitutionally exposed to a second punishment on January 29, 1996 when he was convicted and sentenced on the criminal charge without the termination of the ALS. See Gustafson. Admittedly, the trial court was not subject to Gustafson's guidelines when it sentenced appellant in January 1996. The constitutionality of pursuing criminal convictions after administrative license suspensions was an issue not yet submitted to the Supreme Court of Ohio. However, given the conclusion that it is unconstitutional to sentence a defendant for a DUI offense under R.C. 4511.19 while the ALS remains in effect, I cannot adopt the majority's straight affirmance of appellant's conviction. Although I concur in the affirmance of appellant's conviction, I dissent insofar as the majority does not address the "multiple punishment" aspect of the double jeopardy analysis. The trial court should be instructed to issue an order to the Bureau of Motor Vehicles to terminate the ALS retroactive to the date of appellant's sentencing. This instruction should be accomplished without causing appellant to appear in court and/or to incur any .