COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70212 CITY OF BROADVIEW HEIGHTS : : ACCELERATED DOCKET : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : CARL J. LENARD : OPINION : : PER CURIAM DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 6, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Parma Municipal Court, No. 95-TRC-4339-1-3. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Kevin P. Weiler, Esq. Weiler & Weiler 8920 Brecksville Road Brecksville, OH 44141 For Defendant-Appellant: Robert J. Sindyla, Esq. 7425 Royalton Road North Royalton, OH 44133 -2- PER CURIAM: This case came to be heard upon the accelerated calendar pursuant to App.R. 11.1 and Loc.R. 25, the record of the Parma Municipal Court and briefs of counsel. Defendant-appellant, Carl J. Lenard, appeals his conviction of operating a motor vehicle under the influence of alcohol. Defendant-appellant argues his constitutional right to be free from double jeopardy has been violated. Specifically, defendant-appellant argues he was punished twice in separate proceedings arising out of the same incident: 1) his driver's license being suspended pursuant to R.C. 4511.191; and 2) being convicted of operating a motor vehicle under the influence of alcohol. However, 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. * * * 4. 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. -3- 5. A court has judicial power pursuant to Sections 1 and 4, Article IV of the Ohio Constitution to order the termination of an administrative license suspension at the time of criminal sentencing for violation of R.C. 4511.19, in that continued recognition of the administrative license suspension would result in an unconstitutional application of R.C. 4511.191 to the criminal offender. State v. Gustafson (1996), 76 Ohio St.3d 425, paragraph one, four and five of the syllabus. Accordingly, the trial court did not err in entering judgment against defendant-appellant for operating a motor vehicle under the influence of alcohol after his administrative license suspension. The record in this case contains nothing to indicate that the administrative suspension of defendant-appellant's license continued beyond the date he was sentenced. As this issue was not raised before this court, we decline to consider that issue. City of Maple Heights v. Raymond Piwinski (December 5, 1996), Cuyahoga App. No. 69485, unreported. Judgment affirmed. -4- 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 Parma Municipal Court to carry this judgment into execution. The defendant's conviction having been affirmed, as modified, 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, JUDGE, CONCURS; DIANE KARPINSKI, JUDGE, CONCURS; SARA J. HARPER, PRESIDING JUDGE, CONCURS AND DISSENTS WITH OPINION. 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). COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70212 CITY OF BROADVIEW HEIGHTS : : : CONCURRING & DISSENTING Plaintiff-Appellee : : OPINION : -vs- : : CARL J. LENARD : : : Defendant-Appellant : : DATE: FEBRUARY 6, 1997 JOURNAL ENTRY SARA J. HARPER, P.J., CONCURRING AND DISSENTING: I concur in the affirmance of the trial court's judgment against appellant for operating a motor vehicle under the influence of alcohol after an administrative license suspension. I also concur with the observation that State v. Gustafson (1996), 76 Ohio St.3d 425 requires that the administrative license suspension ("ALS") should be terminated if appellant still suffers from it. However, I dissent from the majority's modification of the judgment to, if warranted, reflect termination. - 2 - After formulating the legal principles relating to these types of cases, the Gustafson court applied them to the six factual scenarios before it. All of the cases are somewhat distinguishable from the one presently before this court, but Gustafson's case affords some insight. Gustafson's criminal case was not disposed of since the trial court dismissed the charges based on double jeopardy grounds, a ruling affirmed on appeal. The Supreme Court of Ohio reversed the ruling and remanded the action, providing "observations" in the process. Id., 443. The court noted that Gustafson would either be found "guilty" or "not guilty" of the criminal DUI charge upon remand. However, since nearly two years had passed since his arrest, the ninety- day ALS imposed upon him would have expired by its own terms. Under these circumstances, and a "guilty finding," "the trial court will thus not likely be called upon to order termination of an ALS." Id. The Gustafson court explained that a short-term ALS is remedial in purpose as it provides interim protection of the public pending judicial determination of the driver's guilt or innocence. Id. A first-time offender charged with a DUI crime has a statutory right to obtain a speedy trial within ninety days under R.C. 2945.71 et seq. Where the ALS expires before trial, "a trial court may well find that the administrative license - 3 - suspension continued to be of a remedial nature throughout its full statutory duration." Id., 443-444. Appellant herein was arrested on September 25, 1995 for driving under the influence of alcohol. The arresting officer seized his driver's license pursuant to R.C. 4511.191 and prepared the necessary form based upon appellant's chemical test result. The record fails to reveal whether appellant had prior DUI convictions. If not, the ALS was effective for a period of ninety days. See R.C. 4511.191(F). Since appellant waived his speedy trial time, the suspension expired prior to trial if it was for a period of ninety days. On the other hand, if the ALS continued past the time for sentencing, January 16, 1996, the trial court should have terminated the ALS at that point. Therefore, instead of an unconfirmed modification, I would have remanded the action to the trial court for two considerations. First, if the ALS were for ninety days, the trial court should determine under Gustafson whether appellant's right against double jeopardy was violated. Second, if the ALS was for one year or longer, the trial court should issue an order .