COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70192 : ACCELERATED DOCKET CITY OF UNIVERSITY HEIGHTS : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION KENNETH MITCHELL : : : Defendant-Appellant : PER CURIAM : : DATE OF ANNOUNCEMENT OF DECISION : JANUARY 9, 1997 CHARACTER OF PROCEEDING : Criminal appeal from Shaker Heights Municipal Court Case No. 95-TRC-01698 JUDGMENT : MODIFIED AND AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEWART MANDEL PAUL J. STANO Suite 650 6650 Pearl Road 75 Public Square Building Suite 202 Cleveland, Ohio 44113-2001 Parma Heights, Ohio 44130 - 2 - PER CURIAM: This case came on for hearing upon the accelerated calendar of our court pursuant to App. R. 11.1 and Local R. 25, the records from the court of common pleas and the briefs of counsel. This docket allows for statements of the reasons for our decision to be in brief and conclusionary form. Kenneth Mitchell appeals from the judgment of the Shaker Heights Municipal Court finding him guilty of having a breath alcohol content above the legal. At 3:28 a.m. on December 16, 1995, University Heights Patrolman Holden found Mitchell asleep behind the wheel of a 1990 Jaguar with its motor running. After failing to perform a variety of field sobriety tests, Patrolman Holden requested Mitchell to submit to a chemical test. Mitchell complied but failed the test, recording a blood alcohol concentration of .247. Pursuant to R.C. 4511.191, Patrolman Holden administratively suspended his license for a period of 90 days and arrested him for driving under the influence of alcohol (DUI) and having a breath alcohol content above the legal limit (BAC). On December 20, 1995, the trial court denied Mitchell's ALS appeal. Consequently, he entered a plea of not guilty to both the DUI and BAC. Then, on December 27, 1995, Mitchell motioned to dismiss both the charges pursuant to the Double Jeopardy Clauses of the - 3 - United States and Ohio Constitutions asserting that he had already been punished via the ALS for the same conduct at issue in the present proceeding. The trial court denied the motion, but granted Mitchell's petition for limited occupational driving privileges. Thereafter, on January 25, 1996, on the motion of prosecution, the trial court dismissed the DUI charge, Mitchell entered a plea of no contest to the BAC charge, and was found guilty. The trial court imposed a one-year license suspension with credit for the period of the ALS from the date of arrest. However, the court stayed imposition of the sentence pending appeal and it is not clear from the record that the ALS was terminated on the date of conviction. Mitchell now appeals his conviction and assigns the following error for our review: THE COURT COMMITTED PLAIN, PREJUDICIAL AND REVERSIBLE ERROR BY DENYING DEFENDANT'S MOTION TO DISMISS BASED ON DOUBLE JEOPARDY. Mitchell argues the municipal court erred in denying his motion to dismiss because the administrative license suspension in conjunction with the subsequent prosecution for DUI and BAC constitute multiple punishment for the same conduct, i.e., double jeopardy. The issue then for our determination is whether the administrative license suspension and subsequent prosecution for DUI and BWC subjected Mitchell to double jeopardy. - 4 - The Ohio Supreme Court in State v. Gustafson (1996), 76 Ohio St.3d 425, directly addressed this issue and determined that "an administrative suspension of one's driver's license is not the type of proceeding to which double jeopardy protection attaches so as to preclude a subsequent criminal prosecution." Id. at 436. Thus, pursuant to the holding in Gustafson, which we are constrained to follow, we conclude the administrative license suspension and the subsequent prosecution for DUI and BAC did not place Mitchell in double jeopardy. However, in Gustafson, the court further held that: ***an administrative license suspension ceases to be remedial and becomes punitive in nature to the extent it is deemed to continue subsequent to conviction and sentencing for violation of R.C. 4511.19. (Emphasis added.) Id. at 443. In the reported Gustafson decision, three of the case dispositions involved drivers who had failed, not refused to take chemical tests. The Supreme Court stated the following with respect to disposition: Upon entry of conviction and sentencing, their administrative license suspensions were properly ordered terminated, as at that point in time their ALSs ceased to be "remedial" in purpose as that term is used in the double-jeopardy context. Continued recognition of each defendant's ALS subsequent to conviction and criminal sentencing would therefore result in these appellants being punished twice in separate proceedings based on the same conduct of drunk driving. Id. at 444- 445. - 5 - The record reflects here that the trial court convicted Mitchell for BAC on January 25, 1996 and sentenced him to a one- year license suspension. However, the court stayed imposition of the sentence pending appeal and from the record, there is no indication that the court terminated Mitchell's ALS at that time. As a result Mitchell's ALS continued past the date of conviction and sentencing. According to Gustafson, then, the ALS ceased to be remedial and became punitive to the extent it continued beyond January 25, 1996, sentencing date. Hence, Mitchell has now been punished and pursuant to Gustafson cannot receive a second punishment for the same conduct of drunk driving. Therefore, we conclude in this case that the conviction should be affirmed, but, the sentence cannot be imposed. Judgment accordingly. - 6 - It is ordered that appellee recover of appellant 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 Shaker 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. PATRICIA A. BLACKMON, PRESIDING JUDGE JOSEPH J. NAHRA, JUDGE TERRENCE O'DONNELL, 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 .