COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70452 CITY OF LYNDHURST : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION FRANK JAMES CAIN : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 21, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Lyndhurst Municipal Court Case No. 96-TRC-208A JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: IRL D. RUBIN, ESQ. TIMOTHY P. HAFFEY, ESQ. 1468 West Ninth Street BERNARD, HAFFEY & BOHNERT Cleveland, Ohio 44113 5001 Mayfield Road, Suite 301 Lyndhurst, Ohio 44124-2610 - 2 - DYKE, J.: Defendant Frank James Cain appeals from his conviction for driving under the influence of alcohol. For the reasons set forth below, we affirm. On January 3, 1996, defendant was involved in a motor vehicle accident on Cedar Road in Lyndhurst, Ohio and was arrested for driving while under the influence of alcohol. Defendant consented to a breath-alcohol test and tested at .189, or in excess of statutory limits. Pursuant to R.C. 4511.191, the arresting officer seized defendant's driver's license and initiated an administrative license suspension ("ALS") of his license. The record does not indicate whether defendant had been convicted of a DUI offense within the preceding five years and we therefore cannot ascertain the duration of the ALS suspension. On January 8, 1996, defendant appealed the ALS and requested a continuance of the ALS hearing. He did not request a stay, however. On January 25, 1996, defendant withdrew his ALS appeal. Also on January 25, 1996, defendant moved to dismiss the DUI and BAC charges, asserting 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 court denied the motion and on February 22, 1996, defendant entered a plea of no contest to the DUI charge and the BAC charge was nolled. The court then found - 3 - defendant guilty of DUI and it fined him $550 plus costs, suspended his licence for 180 days with credit given for that portion of the ALS suspension which had already been served. The court then sentenced defendant to three days incarceration, suspended conditioned upon defendant's compliance with an alcohol abuse program. Defendant now appeals and assigns a single error for our review. Defendant's assignment of error states: THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY DENYING APPELLANT'S MOTION TO DISMISS (DOUBLE JEOPARDY) IN VIOLATION OF APPELLANT'S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO BE FREE FROM DOUBLE JEOPARDY, GUARANTEED BY THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE 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 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. - 4 - 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 the drunk driving charges in the court proceedings. That is, the administrative license suspension is not "a proceeding to which double jeopardy protection attaches so as to preclude a subsequent criminal prosecution." Id., at 436. Further, since the trial court tailored its suspension order by crediting the defendant for the duration of the ALS, the record indicates that the ALS terminated on the day of sentencing. Therefore, since the ALS did not remain in effect following defendant's adjudication and sentencing upon the criminal charge, no double jeopardy violation has occurred. See Gustafson, supra, at 442. 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 Lyndhurst 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. SWEENEY, P.J., AND O'DONNELL, J., CONCUR. ANN DYKE 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 .