COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68728 : CITY OF LAKEWOOD : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION : THOMAS F. SHEEHAN : : Defendant-Appellant : : DATE OF ANNOUNCEMENT FEBRUARY 20, 1997 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Lakewood Municipal Court Case No. 94-C-7898 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: TIMOTHY J. GAUNTNER, ESQ. SEAN KELLEHER, ESQ. Lakewood City Prosecutor 12650 Detroit Avenue Lakewood, Ohio 44107 For Defendant-Appellant: JOHN J. SHEEHAN, ESQ. Suite 1648 Hanna Building 1422 Euclid Avenue Cleveland, Ohio 44115-2001 -2- PATRICIA ANN BLACKMON, J.: Defendant-appellant, Thomas Sheehan, appeals a decision by the trial court convicting him of DUI. Sheehan assigns the following five errors for our review: I. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO DISMISS BECAUSE OF DOUBLE JEOPARDY. II. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO DISMISS ON LACK OF JURISDICTION. III. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO DISMISS AMENDED COMPLAINT CHANGING AND ENLARGING THE OFFENSE FORM (sic) A SPECIFIC VIOLATION OF LAKEWOOD CODIFIED ORDINANCE 333.01A TO A VIOLATION OF THE ENTIRE STATE, O.R.C. 4511.19, INCLUDING MANDATORY PENALTIES AND EXECUTED BY ASSISTANT PROSECUTOR. IV. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS AND FOR AN ORDER IN LIMINE. V. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS AND SHOW CAUSE REGARDING BREATHALIZER RESULTS AND TESTIMONY OF OFFICER ESCHWEILER AS TO UNCHARGED MISCONDUCT. After reviewing the record and the arguments of the parties, we affirm the decision of the trial court. The apposite facts follow. On September 26, 1994, Sheehan was arrested and charged with driving under the influence in violation of Lakewood Codified Ordinance 333.01A. Sheehan's breathalyzer test showed an alcohol concentration of .220%. On November 23, 1994, Sheehan filed a motion to dismiss action against him for lack of jurisdiction. In the motion to dismiss, Sheehan argued the citation failed to state an offense occurring within Lakewood, that the arrest was made outside the territorial boundaries of Lakewood and not in "hot -3- pursuit." On December 9, 1994, the complaint was amended to charge a violation of R.C. 4511.19. In his first assignment of error, Sheehan asserts that sentencing him for DUI after his administrative license suspension violates the double jeopardy clause. This issue was decided in State v. Gustafson (1996), 76 Ohio St.3d 425, which held that "double jeopardy prohibitions do not preclude the state from trying a defendant criminally for violation of R.C. 4511.19 after an administrative license suspension imposed pursuant to R.C. 4511.191. The state retains its right to seek criminal conviction through criminal prosecution." Gustafson at 436. Accordingly, we find that Sheehan's first assignment of error is without merit. In his second assignment of error, Sheehan argues the trial court should have dismissed the case against him for lack of jurisdiction. He argues that the Lakewood police officer who arrested him had no jurisdiction to make an arrest outside of Lakewood. He also argues the amended complaint alleged no illegal activity within the city of Cleveland. R.C. 2935.03(D) provides that a municipal police officer who is authorized to do so within the limits of the political subdivision in which he is employed, may, outside the limits of the political subdivision in which he is employed, pursue, arrest, and detain a person until a warrant can be obtained if all of the following apply: (1) the pursuit takes place without unreasonable delay after the offense is committed; (2) the pursuit is initiated within the limits of the political subdivision in which the peace -4- officer is employed; and (3) the offense is a felony, a first or second degree misdemeanor or a substantially equivalent ordinance, or any offense for which points are chargeable under R.C. 4507.021. The parties stipulated as follows: The City of Lakewood will stipulate to the fact that the center line of West 117th Street is the dividing line between the City of Cleveland and the City of Lakewood from the northern edge of 117th Street all the way out to an area which encompasses all the area that would have any bearing on this case; and that for all points of argument in this Court, that the east side of 117th is the City of Cleveland and the west side of the center line of 117th is the City of Lakewood. (Tr. 4-5). Lakewood police officer Scott Eschweiler was traveling southbound on West 117th. Eschweiler observed a dark-colored car traveling northbound. As the car approached, it went left of center nearly colliding with the police car. Eschweiler turned around to stop the vehicle and saw it go left of center two more times as it passed the intersection of 117th and Detroit. He then turned on his lights and pulled the car over. Eschweiler's testimony revealed that he initiated his pursuit of Sheehan's car immediately after it went left of center. According to Eschweiler, nearly half of Sheehan's car crossed over into the southbound lanes of W. 117th. The southbound lanes of W. 117th are in the city of Lakewood. At the time he began the pursuit, Eschweiler was travelling within the city of Lakewood. Also, driving under the influence is a first degree misdemeanor. -5- Accordingly, Officer Eschweiler's pursuit of Sheehan was lawful under R.C. 2935.03(D). In his third assignment of error, Sheehan argues the trial court should have granted his motion to dismiss the amended complaint changing and enlarging the offense from a specific violation of Lakewood Codified Ordinance to a violation of R.C. 4511.19. Crim.R. 7(D) provides: The court may at any time before, during, or after a trial amend the indictment, information, complaint or bill of particulars, in respect to any defect, imperfection, or omission if form or substance, or of any variance with the evidence, provided no change is made in the name or identity of the crime charged. In State v. Jackson (1992), 78 Ohio App.3d 479, 482, the court stated that "where the amendment of the Uniform Traffic Ticket sought by the state is a designation of the statute or ordinance allegedly violated by the defendant, the trial court has jurisdiction to permit the amendment." The Jackson court found that Crim.R. 7(D) prohibited amending a Uniform Traffic Ticket which charged "court suspension" to add R.C. 4507.02(C) as the statute allegedly violated. The court presumed that "court suspension" meant "driving under suspension." Since R.C. 4507.02(C) pertains to "driving without paying a license reinstatement fee," the court held the amendment changed the name and identity of the offense alleged in the ticket. -6- In this case, the original ticket listed the offense as "Driving While Under the Influence" in violation of Section 333.01(A) of the Lakewood Codified Ordinances. The charge was amended to "Driving while under the influence of alcohol or drugs or with certain concentration of alcohol in bodily substances" in violation of R.C. 4511.19. The two statutes proscribe exactly the same behavior. We find that the amendment did not change the name or identity of the offense listed in the original ticket. Consequently, we overruled Sheehan's third assignment of error. In his fourth assignment of error, Sheehan argues the trial court erred in denying his motion to suppress and an order in limine preventing admission of testimony about Sheehan's conduct on the Lakewood side of W. 117th Street. Even though Sheehan was ultimately charged with violations of R.C. 4511.19 instead of the Lakewood Codified Ordinances, the fact that Sheehan's car veered onto the Lakewood side of W. 117th Street was relevant to establishing Eschweiler's authority to pursue and arrest Sheehan. We overruled Sheehan's fourth assignment of error. In his fifth assignment of error, Sheehan argues the trial court erred by denying his motion to suppress the breathalyzer results. Sheehan argues that there was no probable cause for Eschweiler to stop him. Despite Sheehan's characterization of driving left of center as a "minor flaw in his driving," we find that it provided sufficient justification for the traffic stop. Sheehan's fifth assignment of error is overruled. 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. NAHRA, J., and MCMONAGLE, J., CONCUR. PATRICIA ANN BLACKMON PRESIDING 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 .