COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70641 CITY OF EUCLID : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION DAVID A. PALERMO : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: NOVEMBER 27, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Euclid Municipal Court Case No. 96-TRC-3036ABC JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: RICK WEIGAND, ESQ. DANIEL L. KALK, ESQ. CITY OF EUCLID PROSECUTOR 6116 West Creek Road 555 East 222nd Street Independence, Ohio 44131 Euclid, Ohio 44123 - 2 - DYKE, J.: Defendant David A. Palermo appeals from his conviction for operating a motor vehicle while under the influence of alcohol. For the reasons set forth below, we affirm. On April 13, 1996, defendant was involved in a motor vehicle accident on Euclid Avenue, in Euclid, Ohio, and was charged with operating a motor vehicle while under the influence of alcohol. The arresting officer subsequently requested that defendant submit to a blood alcohol test, but he refused to do so. Upon this refusal, Euclid Police administratively suspended defendant's license pursuant to R.C. 4511.191(E). Defendant pleaded not guilty to the criminal charge and appealed the administrative license suspension (hereafter referred to as "ALS") to the Euclid Municipal Court. Thereafter, on May 1, 1996, defendant moved to dismiss the criminal charge, asserting that since the ALS had been invoked, further prosecution would subject him to multiple punishments for the same offense and unconstitutionally subject him to double jeopardy. The trial court denied the motion and defendant then withdrew his not guilty plea and entered a plea of no contest. The trial court found defendant guilty upon the charge. It then sentenced him to 90 days incarceration, with credit given for 80 days, plus one year of active probation, and fined him $850 plus costs, and - 3 - 1 suspended his driver's license for five years. Within this appeal, defendant advances three errors for our review. I. Defendant's first and second assignments of error are interrelated and state: THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN NOT DISMISSING THE CHARGE OF OPERATING A MOTOR VEHICLE WHILE UNDER THE INFLUENCE OF ALCOHOL AFTER THE IMPOSITION OF AN ADMINISTRATIVE LICENSE SUSPENSION. II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FINDING THE APPELLANT GUILTY OF OPERATING A MOTOR VEHICLE WHILE UNDER THE INFLUENCE OF ALCOHOL AFTER THE IMPOSITION OF AN ADMINISTRATIVE LICENSE SUSPENSION IN VIOLATION OF THE DOUBLE JEOPARDY AND DUE PROCESS CLAUSES OF THE CONSTITUTION OF THE STATE OF OHIO AND THE CONSTITUTION OF THE UNITED STATES OF AMERICA. Our disposition of these assignments of error 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 suspen- 1 We have not been provided with a copy of defendant's record with which to assess this penalty and defendant does not challenge it herein. - 4 - sion 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. We further note that since defendant's ALS terminated following his conviction upon the no contest plea, see R.C. 4511.191(K), and did not remain in effect following his conviction upon the criminal charge, no double jeopardy violation has occurred. See Gustafson, supra, at 442. III. Defendant's third assignment of error states: THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FINDING THE APPELLANT GUILTY OF OPERATING A MOTOR VEHICLE WHILE UNDER THE INFLUENCE OF ALCOHOL AFTER THE IMPOSITION OF A LICENSE REINSTATEMENT FEE IN VIOLATION OF THE DOUBLE JEOPARDY AND DUE PROCESS CLAUSES OF THE CONSTITUTION OF THE STATE OF OHIO AND THE CONSTITUTION OF THE UNITED STATES OF AMERICA. - 5 - Herein defendant maintains that the reinstatement fee imposed by the Ohio Bureau of Motor Vehicles constitutes a punishment and therefore bars subsequent criminal prosecution. Since there is no indication in our record that defendant paid a reinstatement fee in this instance, we are unable to evaluate the merits of this assignment of error. Volodkevich v. Volodkevich (1989), 48 Ohio St.3d 313, 314. The court explained: A presumption of validity attends the trial court's action. In the absence of an adequate record, which is the appellant's responsibility, see App. R. 9 and Loc. R. 3 of the Ninth Appellate District, we are unable to evaluate the merits of the assignments of error and must affirm the trial court's decision. Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197, 199, 15 O.O.3d 218, 220, 400 N.E. 2d 384, 38; Meinhard Commercial Corp. v. Spoke & Wheel, Inc. (1977), 52 Ohio App.2d 198, 201- 102, 6 O.O. 3d 180, 182, 368 N.E. 2d 1275, 1277. Appellant's assignments of error concern facts, testimony, and evidentiary matters which must be demonstrated from the record. The record before us is insufficient to demonstrate the claimed errors. This claim is accordingly rejected herein. Judgment 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 Euclid 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. DAVID T. MATIA, 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 clerk per App.R. 22(E). See, also S.Ct.Prac.R. II, Section 2(A)(1). .