COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69980 CITY OF GARFIELD HEIGHTS, OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION JUDY K. REYNOLDS : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : _____FEB. 6, 1997_____ CHARACTER OF PROCEEDING : Criminal appeal from : Garfield Hts. Municipal Ct. : Case No. 95-TRC-1034A-C JUDGMENT : Affirmed; remanded with instructions. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: JAMES J. McGRATH Garfield Heights Prosecutor 5407 Turney Road Garfield Heights, Ohio 44125 For defendant-appellant: MICHAEL F. DADISMAN, ESQ. 5455 Broadview Road Parma, Ohio 44134 SARA J. HARPER, P.J.: Defendant-appellant Judy K. Reynolds ("appellant") appeals from the trial court's decision to deny her motion to dismiss the criminal proceedings against her. A careful review of the record compels reversal. On February 12, 1995, appellant was stopped by Garfield Heights Police Officer Timothy Capretta when she was operating a vehicle southbound on East 38th Street in Garfield Heights ("Garfield Heights"), Ohio. Appellant was cited for driving "left of center." Appellant failed her sobriety tests and, as a result, was placed under arrest. Her vehicle was impounded by the Garfield Heights Police Department pursuant to R.C. 4511.195. At the Garfield Heights police station, appellant submitted to a test for blood alcohol concentration, which measured .151 percent. Pursuant to R.C. 4511.191, appellant's driver's license was immediately suspended ("ALS") by the Bureau of Motor Vehicles ("BMV"). Appellant was then issued citations for violation of R.C. 4511.19(A)(1), "Operating a Motor Vehicle Under the Influence of Alcohol," hereinafter "OMVI," and R.C. 4511.19(B)(2), "having a prohibited level of blood alcohol concentration ***," hereinafter "BAC." The record contains a computerized printout which indicates that appellant's driver's license was suspended for one year in 1994; in 1992, appellant provided consent to the BMV suspending her - 3 - license; additionally, in 1992, appellant pled no contest to crossing yellow line and DUI. On February 17, 1995, appellant moved to dismiss the criminal proceedings against her on the basis that she had previously been placed in jeopardy for the same act by reason of the ALS imposed by the BMV and the Double Jeopardy Clauses of the United States and Ohio Constitutions. On March 29, 1995, appellant filed a supplemental memorandum in support of her motion. On May 29, 1995, the City of Garfield Heights filed its brief in opposition to appellant's motion. On June 6, 1995, the trial court denied appellant's motion. The trial court granted appellant leave of court, on July 28, 1995, to file an amended motion to dismiss on the grounds that: (1) she had previously been placed in jeopardy for the same act by reason of the administrative seizure of her vehicle imposed by the BMV on February 13, 1995; and (2) additional criminal proceedings were barred by the Double Jeopardy Clauses of the United States and Ohio Constitutions. Appellant's motion was denied by the trial court, but the impoundment of her vehicle was modified to immobilization at her residence. On May 16, 1995, the trial court terminated the immobilization because the ninety-day immobilization period required by R.C. 4511.195 had expired. On October 24, 1995, appellant entered a plea of "no contest" to the BAC and "left of center" charges, reserving her right to appeal the trial court's denial of her two motions to dismiss for - 4 - double jeopardy. The trial court found appellant "guilty" of the BAC and "left of center" charges and dismissed the OMVI charge. The trial court, on October 24, 1995, sentenced appellant to one hundred eighty days (one hundred seventy days suspended); fined her $1,000; and placed her on inactive probation for two years, with her driver's license suspended for one year. The fine was stayed pending appeal. Appellant appeals from the trial court's order and raises the following assignments of error. I. THE TRIAL COURT ERRONEOUSLY DENIED DEFENDANT JUDY K. REYNOLDS' MOTION TO DISMISS CRIMINAL PROCEEDINGS AGAINST THE DEFENDANT, ON THE GROUND THAT CONTINUING SAID PROCEEDINGS WOULD PLACE DEFENDANT IN MULTIPLE JEOPARDY IN VIOLATION OF THE OHIO CONSTITUTION, ARTICLE I, SECTION 10, AND IN VIOLATION OF THE FIFTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES. II. THE TRIAL COURT ERRONEOUSLY DENIED DEFENDANT JUDY K. REYNOLDS' MOTION TO DISMISS CRIMINAL PROCEEDINGS AGAINST THE DEFENDANT, ON THE GROUND THAT THE PENALTY PHASE OF O.R.C. 4511.19 IS UNCONSTITUTIONAL ON THE FOLLOWING GROUNDS: A. THE PENALTY VIOLATES THE EIGHTH AMENDMENT TO THE UNITED STATES CONSTITUTION BECAUSE IT IS DISPROPORTIONATE TO THE OFFENSE WHEN COMPARED TO OTHER CRIMES WITHIN THE JURISDICTION; B. THE STATUTORY PENALTY VIOLATES THE EQUAL PROTECTION CLAUSE OF THE UNITED STATES CONSTITUTION; C. THE STATUTORY PENALTY VIOLATES THE PROHIBITIONS AGAINST EXCESSIVE FINES; D. THE STATUTORY PENALTY VIOLATES THE EX POST FACTO CLAUSES OF THE OHIO AND UNITED STATES CONSTITUTIONS; - 5 - E. THE STATUTORY PENALTY VIOLATES THE HOME RULE AMENDMENT TO THE OHIO CONSTITUTION. III. THE TRIAL COURT ERRONEOUSLY DENIED DEFENDANT JUDY K. REYNOLDS' MOTION TO DISMISS CRIMINAL PROCEEDINGS AGAINST THE DEFENDANT, ON THE GROUND THAT THE ADMINISTRATIVE LICENSE SUSPENSION STATUTES ARE UNCONSTITUTIONAL ON THE FOLLOWING GROUNDS: A. THE ADMINISTRATIVE LICENSE SUSPENSION VIOLATES EQUAL PROTECTION AND DUE PROCESS OF LAW BECAUSE IT DISCRIMINATES AGAINST INDIVIDUALS ON THE BASIS OF GEOGRAPHIC LOCATION; B. THE ALS STATUTES VIOLATE DUE PROCESS OF LAW BECAUSE THEY FAIL TO PROVIDE FOR A PREDEPRIVATION HEARING. ANDREWS v. TURNER, (1977), 52 OHIO ST.2D 31, 368 N.E.2D 1253, "IN OUR OPINION, THE GENERAL ASSEMBLY HAS ENSURED THAT A LICENSEE WILL BE AFFORDED DUE PROCESS BY REQUIRING THAT, PRIOR TO THE EFFECTIVE DATE OF A LICENSE SUSPENSION, THE LICENSEE BE NOTIFIED IN WRITING THAT HE OR SHE MAY PETITION FOR A HEARING." EMPHASIS ADDED; C. THE ALS STATUTES VIOLATE DUE PROCESS BECAUSE THEY FAIL TO PROVIDE ADEQUATE NOTICE; D. THE ALS STATUTES ARE UNCONSTITUT- IONAL BECAUSE THEY ARE UNCLEAR AND THEREFORE DIFFERENT COURTS TREAT THE STATUTE DIFFERENTLY. SOME COURTS REQUIRE A CIVIL PETITION TO BE FILED BEFORE OCCUPATIONAL PRIVILEGES ARE CONSIDERED, WHILE OTHER COURTS DO NOT SO REQUIRE. IV. THE IMPOUNDMENT AND FORFEITURE STATUTES ARE UNCONSTITUTIONAL. A. THE FORFEITURE AND IMPOUNDMENT PORTIONS OF THE OMVI STATUTES ARE UNCONSTITUTIONAL BECAUSE THEY VIOLATE DUE PROCESS BY NOT PROVIDING A - 6 - PREDEPRIVATION HEARING INVOLVING THE OWNER; B. SAID PROVISIONS ARE UNCONSTITUTIONAL BECAUSE THEY VIOLATE EQUAL PROTECTION BY CARVING OUT CLASSES OF INDIVIDUALS CHARGED WITH OMVI VIOLATIONS BASED UPON OWNERSHIP STATUS. A. We initially note that in the case sub judice, appellant did not comply with App.R. 12(A) because she failed to separately brief and argue her second, third and fourth assignments of error. Failure to designate an assignment of error may constitute grounds under App.R. 12(A) to disregard appellant's claim of error. See Metal Powder Products, Inc. v. Ohio Bur. of Empl. Serv. (1990), 69 Ohio App.3d 785. However, this court will review appellant's first assignment of error as appellant complied with App.R. 12(A). B. In the first assignment of error, appellant contends the trial court erroneously denied her motion to dismiss. Appellant argues that the Double Jeopardy Clauses of the United States and Ohio Constitutions prohibit second prosecutions or multiple prosecutions for the same offense. Thus, appellant cannot be subjected to a criminal prosecution for the same conduct which led to her license suspension. Appellant relies on three theories to support her proposition of law: (1) the ALS and the OMVI charges are the same offense; (2) the ALS constitutes punishment; and (3) Ohio case law is in favor of the position that bringing an OMVI order subsequent - 7 - to an ALS violates the Double Jeopardy Clauses of the United States and Ohio Constitutions. Recently, the Ohio Supreme Court in State v. Gustafson (1996), 76 Ohio St.3d 425, addressed the issue of whether an ALS under R.C. 4511.191 precludes subsequent prosecution of criminal drunk driving charges pursuant to the Double Jeopardy Clause of the United States and Ohio Constitutions in five consolidated cases. The court's analysis started from double jeopardy principles which prohibit: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple prosecutions for the same offense. United States v. Halper (1989), 490 U.S. 4345, 109 S.Ct. 1892, 104 L.Ed.2d 487. In the first prong, the Gustafson Court addressed whether an administrative license suspension and criminal DUI prosecution constitute "multiple prosecutions." The Double Jeopardy Clause precludes successive criminal prosecutions; the proscription is against a second criminal trial after jeopardy has attached in a first criminal trial. Id. at 435. Double jeopardy does not attach after an ALS to preclude subsequent criminal prosecution. Id. An ALS, accomplished through an administrative proceeding of a summary motion, does not result in either a "conviction" or an "acquittal" because there has not been a first trial. Id. at 437. Thus, double jeopardy prohibitions do not preclude the state from trying a defendant criminally for violating R.C. 4511.19 after an ALS imposed pursuant to R.C. 4511.191. The state retains its right to - 8 - seek criminal conviction through criminal proceedings. Id. at 436. Next, the court addressed, in the second prong, whether an ALS and a criminal prosecution for driving under the influence of intoxicants constitute separate proceedings based on the same conduct. The court, citing Dept. of Revenue of Montana v. Keith Ranch (1994), 511 U.S. ____, 114 S.Ct. 1957, 128 L.Ed.2d 767, explained that multiple prosecutions may be initiated in separate and successive proceedings. Gustafson. An ALS imposed pursuant to R.C. 4511.191 and a criminal driving under the influence prosecution for violation of R.C. 4511.19, arriving out of the same arrest, constitute separate proceedings for double jeopardy purposes. Id. at 438. In the third prong, the court analyzed whether an ALS constitutes "multiple punishment" when judicial sentencing following conviction of driving while under the influence as well as statutory license suspension is imposed. The supreme court noted, "This court has historically and repeatedly characterized driver's license suspensions imposed pursuant to Ohio's implied consent statutes as being civil in nature and remedial in purpose." Id. at 440. Yet, "sanctions which may initially be justified as remedial can simply go too far, to the point that they must be deemed 'punishment' for double jeopardy purposes." Id. Thus, proceedings pursuant to R.C. 4511.91 may, in their application to particular cases, "cross the line" and become excessive in - 9 - violation of legitimate non-punitive, remedial purposes of removing dangerous drivers from the public highways. Id. at 441. Accordingly, because an administrative license suspension loses its remedial character upon judicial adjudication and sentencing for violation of R.C. 4511.19, the Double Jeopardy Clauses of the United States and Ohio Constitutions preclude continued recognition of an administrative license suspension following judicial imposition of criminal penalties for driving while under the influence of intoxicating drugs, including alcohol. Id. at paragraph four of the syllabus. At the conclusion of its legal analysis, the supreme court turned to determining a proper disposition in each of the cases before it. With respect to Gustafson, the Supreme Court reversed and remanded for further proceedings to resolve the criminal charge of R.C. 4511.19. Id. at 443. In two cases where appellants both refused testing at the time of arrest and later both entered pleas of no contest to the DUI charges filed against them, the court affirmed the trial court's decision to deny their motions to dismiss the criminal proceedings against them. Id. at 444. The court affirmed and remanded with instructions that the trial court issue an order to the BMV to dismiss their respective ALS, retroactive to the date of sentencing in the DUI convictions. Finally, the court affirmed the trial court's judgment as to the remaining appellants. Each of these three appellants consented to breath alcohol testing but failed the chemical test. The court - 10 - noted that the trial court, upon entry of conviction and sentencing, properly ordered their ALS's terminated as, at that point in time, their ALS's ceased to be "remedial" in purpose as that term is used in the double-jeopardy context. Id. at 444. Applying Gustafson to the facts of the case sub judice, appellant was stopped for crossing the center line. After the officer noticed a strong smell of alcohol on appellant, appellant was asked to perform a field sobriety test. Appellant had difficulty performing the test. Appellant's chemical test indicated a blood alcohol concentration level of .151 percent. Appellant was placed under arrest and charged with driving under the influence in violation of R.C. 4511.19(A)(1) and violating R.C. 4511.19(B)(2), prohibited blood alcohol concentration. Subsequently, appellant's driver's license was suspended as a result of the test pursuant to R.C. 4511.191. Appellant's car impoundment was modified to immobilization at her residence. Next, the trial court terminated the immobilization because the ninety- day immobilization period required by R.C. 4511.195 had expired. Subsequently, appellant filed a motion to dismiss the criminal proceeding, which the trial court denied. Appellant entered a plea of "no contest" to the BAC and "left of center" charges. The trial court found appellant "guilty" of the BAC and "left of center" charges and dismissed the OMVI charge. Appellant's driver's license was suspended for one year. - 11 - Appellant's contention that she had been previously placed in double jeopardy for the same act by reason of the ALS has partial merit. Here, the record does not indicate that appellant's ALS was terminated on the day of sentencing. Thus, appellant was unconstitutionally subjected to a second punishment. Gustafson, supra. Accordingly, appellant's assignment is sustained. Judgment affirmed; cause remanded to the trial court to issue an order to the BMV to terminate the ALS retroactive to the date of sentencing. - 12 - It is ordered that the parties absord their own 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 Garfield Heights 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, J. CONCURS; DIANE KARPINSKI, J. DISSENTS PRESIDING JUDGE SARA J. HARPER 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). - 2 - COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69980 : CITY OF GARFIELD HEIGHTS, OHIO : : : CONCURRING Plaintiff-Appellee : : AND v. : : DISSENTING JUDY K. REYNOLDS : : OPINION : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: FEB. 6, 1997 KARPINSKI, J., CONCURRING IN PART AND DISSENTING IN PART: I concur in the majority's affirmance of defendant's criminal conviction, but respectfully dissent from its disposition of the ALS for the reasons set forth in City of Maple Heights v. Piwinski (Dec. 5, 1996), Cuyahoga App. No. 69485, unreported. The record does not clearly show that defendant's ALS continued beyond the date of his sentence in the criminal case. As .