COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70486 CITY OF FAIRVIEW PARK : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION DANIEL W. MACKEY : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 21, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Rocky River Municipal Court Case No. 86-TRC-68 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: JAMES F. SHANNON, ESQ. MARK A. KAISER, ESQ. 516 Standard Building 6603 Seminole Trail 1370 Ontario Street Mentor, Ohio 44060 Cleveland, Ohio 44113 - 2 - DYKE, J.: Defendant Daniel Mackey appeals from his conviction for driving under the influence of alcohol. For the reasons set forth below, we affirm. On December 30, 1995, defendant was stopped for a speeding violation in the City of Fairview Park. Police administered field sobriety tests, then placed defendant under arrest for driving while under the influence of alcohol. He later consented to a breath alcohol test which indicated .238 per cent breath alcohol content, in violation of statutory limits. The Fairview Park Police then administratively suspended defendant's driver's license pursuant to R.C. 4511.191(D). The record reflects that defendant was a first offender within the contemplation of R.C. 4511.191(F)(1), and by operation of this statute, the duration of the ALS was ninety days, or until March 29, 1996. Defendant was subsequently charged with driving under the influence of alcohol in violation of Section 333.01(A)(1) of the Codified Ordinances of the City of Fairview Park, operating a motor vehicle with a prohibited blood alcohol concentration (hereafter referred to as "BAC") in violation of Section 333.01(A)(3) of the ordinances, and speeding in violation of Section 333.03. On January 5, 1996, defendant pleaded not guilty to the charges issued against him, but did not appeal the administrative license suspension (hereafter referred to as "ALS" or "ALS Positive Suspension") at his initial appearance under the procedure set - 3 - forth in R.C. 4511.191(H). On February 13, 1996, defendant moved to dismiss the BAC and driving under the influence charges. Defendant asserted 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 trial court denied the motion, and in a written opinion noted that the ALS was remedial in nature and was not a punishment which precluded further prosecution. On March 6, 1996, defendant withdrew his not guilty plea and entered a plea of no contest to the charges. The court then found him guilty and fined him $25 on the speeding charge, and merged his sentences for the alcohol-related charges, fining him $350, thirty days in jail with twenty-seven days suspended, and six months inactive probation. In addition, the court suspended his driver's license for six months, less the sixty-eight days for which the ALS had been in effect. Defendant now appeals and assigns a single error for our review. Defendant's assignment of error states: THE TRIAL COURT ERRED BY DENYING APPELLANT'S MOTION TO DISMISS BASED ON DOUBLE JEOPARDY. Our disposition of this matter is governed by the Supreme Court's recent decision in State v. Gustafson (1996), 76 Ohio St.3d 425. - 4 - 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. 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 charge 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 conviction 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 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. 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 .