COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70684 CITY OF LAKEWOOD : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : GREGORY W. POLOMSKY : OPINION : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 19, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Lakewood Municipal Court, No. 96-C-196 1/3. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Timothy J. Gauntner, Esq. 14701 Detroit Avenue, Suite 757 Lakewood, OH 44107 Sara J. Fagnilli, Esq. 3826 Euclid Avenue Cleveland, OH 44115 Sean F. Kelleher, Esq. Assistant County Prosecutor City of Lakewood 12650 Detroit Avenue Lakewood, OH 44107 Kevin M. Spellacy, Esq. One Cleveland Center 1375 E. 9th Street, Suite 1920 Cleveland, OH 44114 For Defendant-Appellant: George Wm. Joseph, Esq. 12211 Madison Avenue Lakewood, OH 44107 -3- DAVID T. MATIA, J.: Gregory Polomsky, defendant-appellant, appeals the City of Lakewood's, plaintiff-appellee's, finding of guilt on one count of driving under the influence. Defendant-appellant raises one assignment of error. This court, finding no error, affirms defendant-appellant's conviction. I. STATEMENT OF FACTS On January 9, 1996, Gregory Polomsky, defendant-appellant, was arrested and charged with driving under the influence of alcohol, driving without an operator's license, and driving without a seat belt. Since defendant-appellant refused to submit to a breathalyzer, his driver's license was suspended pursuant to R.C. 4511.191. On April 18, 1996, defendant-appellant made a motion to dismiss on the continuing criminal prosecution of the driving under the influence. Defendant-appellant argued the criminal prosecution subsequent to the administrative license suspension violated his constitutional right to be free from double jeopardy. The trial court denied defendant-appellant's motion. Thereafter, defendant-appellant withdrew his not guilty plea and pled no contest in exchange for the dismissal of the other two pending charges. On April 18, 1996, the trial court found defendant-appellant guilty of driving under the influence and sentenced him to thirty (30) days in jail and a $750 fine. The jail time and $250 of the fine was suspended on the condition of one year inactive probation. Additionally, defendant-appellant -4- was ordered to abstain from drug and alcohol abuse, enroll in an out-patient alcohol rehabilitation program within thirty (30) days, attend two (2) Alcoholics Anonymous meetings per week and obtain a sponsor. On May 15, 1996, defendant-appellant filed a motion to stay execution of the sentence along with the notice of appeal. The motion to stay was granted on May 17th. This appeal is properly before this court. II. ASSIGNMENT OF ERROR Gregory Polomsky, defendant-appellant, states as his sole assignment of error: I. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO DISMISS. A. ISSUE RAISED: WHETHER THE TRIAL COURT ERRED IN DENYING DEFENDANT-APPELLANT'S MOTION TO DISMISS. Defendant-appellant argues the trial court erred in denying his motion to dismiss. Specifically, defendant-appellant argues the continued criminal prosecution for driving under the influence after the administrative license suspension was issued constitutes a violation of defendant-appellant's right to be free from double jeopardy. Defendant-appellant's sole assignment of error is not well taken. B. DOUBLE JEOPARDY ANALYSIS. The Fifth Amendment of the United States Constitution states in pertinent part: -5- "*** nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb ***. Similarly, Article I, Section 10 of the Ohio Constitution states, in pertinent part: "No person shall be twice put in jeopardy for the same offense." The double jeopardy clause of the United States Constitution and Ohio Constitution bars: 1) a second prosecution for the same offense after acquittal, 2) a second prosecution for the same offense after conviction, and 3) multiple punishments for the same offense. North Carolina v. Pearce (1969), 395 U.S. 711; United States v. Halper (1989), 490 U.S. 435. In Montana Dept. of Revenue v. Kurth Ranch (1994) 511 U.S. ____, 114 S.Ct. 1937, 128 L.Ed.2d 767, the United States Supreme Court set forth a three-part test to determine whether the Double Jeopardy Clause bars the state from prosecuting a criminal defendant after civil penalties have been imposed: 1) whether the sanctions are imposed for the same alleged conduct, 2) whether the civil and criminal sanctions are imposed in separate proceedings, and 3) whether the separate civil sanction constitutes "punishment" for double jeopardy purposes. See, also, State v. Ackrouche (April 5, 1995), Franklin County Municipal Court, No. M-9410TFC-145054, unreported. -6- C. THE TRIAL COURT DID NOT ERR IN DENYING DEFENDANT-APPELLANT'S MOTION TO DISMISS. The Ohio State Supreme Court recently pronounced the following: 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. 4511.191 based upon, and subsequent to, the imposition of an administrative license suspension pursuant to R.C. 4511.191. State v. Gustafson (1996), 76 Ohio St.3d 425, paragraph one of the syllabus. Accordingly, the trial court did not err in denying defendant-appellant's motion to dismiss. Judgment affirmed. -7- 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 Lakewood 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. JAMES D. SWEENEY, P.J. and PATRICIA BLACKMON, J., CONCUR. DAVID T. MATIA 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 .