COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72439 CITY OF BEDFORD : : Plaintiff-Appellee : JOURNAL ENTRY : v. : AND : THOMAS TOLBERT, JR. : OPINION : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION: APRIL 9, 1998 CHARACTER OF PROCEEDING: Criminal appeal from the Bedford Municipal Court, Case Nos. 97-TRC-00058(A). (B). (C). (D). JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: ______________________________ APPEARANCES: Plaintiff-Appellee: Defendant-Appellant: WILLIAM M. MENZALORA JOEL NASH The Phillips Legal Group Nash and Nash 1040 Illuminating Building 113 St. Clair Avenue 55 Public Square Suite 375 Cleveland, Ohio 44113-1904 Cleveland, Ohio 44114 BRIAN J. MELLING KENNETH A. SCHUMAN Melling, Melling & Bell 31 Columbus Road Bedford, Ohio 44146 -2- O'DONNELL, J.: Thomas Tolbert, Jr. appeals from a judgment of the Bedford Municipal Court finding him guilty of driving under the influence of alcohol pursuant to his plea of no contest to that charge, contending that where the initial appearance following an administrative license suspension is not held within five days as mandated by R.C. 4511.191, the administrative license suspension must be terminated because it becomes punitive and violates constitutional protections against double jeopardy. After a careful review of the facts and the law in this case, we believe these contentions are not well taken and, therefore, affirm the judgment of the court. Following New Year's Eve, around 1:40 a.m. on the morning of January 1, 1997, Officer Cutright of the Bedford Police Department observed Tolbert driving northbound on Northfield Road in Bedford, Ohio and weaving through traffic. The officer stopped Tolbert; confiscated his driver's license thereby placing him under administrative license suspension; cited him for weaving, driving under the influence of alcohol, and operating a motor vehicle with a BAC of .342; and scheduled Tolbert's initial ALS appearance in the Bedford Municipal Court for January 7, 1997. When Tolbert appeared in court on that day, he objected to the failure to comply with R.C. 4511.191 requiring the ALS hearing to be held within five days of his arrest, but entered pleas of not guilty to all charges; the court then scheduled his case for trial on February 10, 1997. On January 24, 1997, Tolbert filed a motion -3- to dismiss all charges and to terminate the ALS, urging that failure to schedule his initial appearance within five days of his arrest constituted a double jeopardy violation. On February 10, 1997 after the court denied his motion, Tolbert pled no contest to the charge of driving under the influence of alcohol; thereafter, the court found him guilty, terminated the administrative license suspension, and imposed sentence. Tolbert now appeals and raises two assignments of error for our review. The first states: AN ADMINISTRATIVE LICENSE SUSPENSION FOLLOWING AN ARREST FOR DUI MUST BE TERMINATED WHERE THE INITIAL APPEARANCE MANDATED BY O.R.C. 4511.191 IS NOT HELD WITHIN FIVE (5) DAYS IF NOT WAIVED BY THE DEFENDANT. Tolbert contends his administrative license suspension should be terminated because, contrary to R.C. 4511.191, his initial appearance in court occurred on January 7, 1997, more than five days after his arrest date of January 1, 1997. The city maintains that in accordance with provisions of Crim.R. 45(A), Tolbert's initial appearance in court did occur within five days of his arrest as mandated by R.C. 4511.191. Thus, the issue presented for our review concerns whether the administrative license suspension in this case complies with the procedure mandated by R.C. 4511.191, requiring an initial appearance within five days of the arrest date. R.C. 4511.191(D)(1)(a) provides in part that an administrative license suspension * * * will last at least until the person's initial appearance on the charge that will be held within five days after the date of the -4- person's arrest or the issuance of a citation to the person * * *. (Emphasis added). That statute does not prescribe a method for calculating the five applicable days, when holidays or weekends intervene. However, Crim.R. 45(A) provides in relevant part: In computing any period of time prescribed or allowed by * * * any applicable statute, the date of the act or event from which the designated period of time begins to run shall not be included. * * * When the period of time prescribed or allowed is less than seven days, intermediate Saturdays, Sundays and legal holidays shall be excluded in computation. (Emphasis added). We also observe that R.C. 1.14 provides a method for computing time, which does not provide for the exclusion of intervening weekends or holidays. However, in State v. Tate (1979), 59 Ohio St.2d 50, the court determined that we must apply the Criminal Rules rather than this statute, stating in pertinent part at 53-54: Under the authority of Section 5(B), Article IV of the Ohio Constitution, the Criminal Rules supersede the analogous statutes to the extent of any conflict. Further, Traf.R. 20 provides: If no procedure is specifically prescribed by these rules, the Rules of Criminal Procedure and the applicable law apply. Here, because the days intervening, between Tolbert's arrest and his initial court appearance included a Saturday and Sunday, these should not be included in the computation of time pursuant to Crim.R. 45(A). Thus, Tolbert's initial appearance did not violate -5- R.C. 4511.191(D)(1)(a) and this assignment of error is overruled. The second assignment of error states: WHERE THE INITIAL APPEARANCE FOLLOWING AN ADMINISTRATIVE LICENSE SUSPENSION FOR DRIVING UNDER THE INFLUENCE OF ALCOHOL IS NOT HELD WITHIN FIVE (5) DAYS AS MANDATED BY O.R.C. 4511.191, CONTINUATION OF THE ALS IS PUNITIVE RATHER THAN REMEDIAL, AND TRIGGERS THE DEFENSE OF DOUBLE JEOPARDY AS TO THE CRIMINAL DUI CHARGE. Tolbert argues that because his initial court appearance was not held within five days following the administrative license suspension, its continuation after his initial appearance until he pled no contest constituted a double jeopardy violation. Thus, the issue presented for our review concerns whether the continuation of an administrative license suspension after an initial appearance until the date of conviction and sentencing constitutes a double jeopardy violation. In State v. Gustafson (1996), 76 Ohio St.3d 425, the court there stated in its syllabus: 3. For purposes of determining the protection afforded by the Double Jeopardy Clauses of the United States and Ohio Constitutions, an administrative license suspension imposed pursuant to R.C. 4511.191 ceases to be remedial and becomes punitive in nature to the extent the suspension continues subsequent to adjudication and sentencing for violation of R.C. 4511.19. (Emphasis added). Further, referring to three drivers who had failed chemical tests, the court stated at 444-445: 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 -6- 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. Thus, R.C. 4511.191 would be applied unconstitutionally to them. Hence, the Supreme Court has determined that an administrative license suspension becomes punitive after conviction and sentencing, not earlier as argued by Tolbert in this case. Here, the trial court continued Tolbert's administrative license suspension after his initial appearance, but terminated it upon his conviction and sentencing for DUI. In accordance with Gustafson, supra,the trial court did not subject Tolbert to double jeopardy. Therefore, this 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 Bedford 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 M. PORTER, J., CONCURS; PATRICIA BLACKMON, A.J., DISSENTS (See Dissenting Opinion attached) JUDGE TERRENCE O'DONNELL 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)(a). COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72439 CITY OF BEDFORD : : Plaintiff-Appellee : : D I S S E N T I N G vs. : : O P I N I O N THOMAS TOLBERT, JR. : : Defendant-Appellant : : BLACKMON, A.J., DISSENTING: I respectfully dissent from the majority opinion. R.C. 4511.191(D) provides for a five day ALS hearing. The Ohio Supreme Court has recognized the importance of prompt post-suspension review: to minimize the burden on a driver's private interest in the continued possession and use of his driver's license pending the outcome of the ALS appeal. State v. Hochhausler (1996), 76 Ohio St.3d 455, 460-461. In an analogous case to this one, this court held Civ.R. 6(A) (counterpart to Crim.R. 45(A)) inapplicable to the five day notice provision of R.C. 3767.04, which requires a defendant to be given five days notice of a hearing on an application for a temporary injunction in a nuisance action. State, ex rel Fisher v. Reno Hotel, Inc., et al. (1994), 95 Ohio App.3d 67, 71. The Fishercourt noted Civ.R. 1 provides that the Civil Rules, to the extent that they would by their nature be clearly inappli- cable, shall not apply to procedure *** (7) in all other statutory proceedings. Citing Tower City Properties v. Bd. Of Revision (1990), 49 Ohio St.3d 67, 69, the Fisher court stated: -2- The civil rules should be held to be clearly inapplicable only when their use will alter the basic statutory purpose for which the specific procedure was originally provided in the special statutory action. Fisher at 70. The court reasoned that applying Civ.R. 6(A) would clearly alter the basic purpose of R.C. 3767.04 (the speedy resolution of a complaint for a temporary injunction). It is my view that we should adopt the same rationale as Fisher to ALS hearings. The basic purpose is to provide for a prompt resolution. Five days should mean five days, not seven or eleven. Additionally, ALS hearings are civil and administrative in nature and are not criminal proceedings. See State v, Gustafson (1996), 76 Ohio St.3d 425, 440; Andrews v. Turner (1977), 52 Ohio .