COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 72862 CITY OF CLEVELAND : : JOURNAL ENTRY Plaintiff-appellee : : AND vs. : : OPINION DAVID CRISS : : Defendant-appellant : : : DATE OF ANNOUNCEMENT : December 10, 1998 OF DECISION : : CHARACTER OF PROCEEDINGS : Criminal appeal from : Cleveland Municipal Court : Case No. 96-TRC-077962 : JUDGMENT : AFFIRMED IN PART, REVERSED IN PART AND REMANDED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: REUBEN J. SHEPERD, ESQ. PAUL MANCINO, JR., ESQ. Assistant City Prosecutor 75 Public Square, Suite 1016 8th Floor, Justice Center Cleveland, OH 44113-2098 1200 Ontario Street Cleveland, OH 44113 JOHN T. PATTON, J.: -2- A jury found defendant-appellant David Criss guilty of driving under the influence in violation of Cleveland Codified Ordinance ( CCO ) 433.01(A)(1) and driving with a temporary permit without a licensed driver in violation of CCO 435.03. The trial court also found defendant guilty of two misdemeanors, driving without lighted headlights in violation of CCO 437.02A and failing to wear a seat belt in violation of CCO 437.27. Initially, a motion to suppress was filed by defendant. A hearing was held but the motion was denied by the trial court because it was determined driving without headlights was sufficient probable cause to stop someone and the detention of defendant did not violate his Fourth Amendment Right prohibiting illegal search and seizure. At the trial, it was revealed that on December 3, 1996 at approximately 8:45 p.m. Cleveland Police Detectives Flynt and Sotomayor were assigned to patrol the West 25th Street area for drug activity. The detectives were traveling south on West 25th street when they observed a car traveling north with its headlights off. As the car passed, Flynt noticed defendant with his back away from the seat, clutching the steering wheel. The detectives made a U-turn and observed defendant make a left turn. While following defendant, Sotomayor noticed defendant weaving and driving slower than the usual rate of speed. The detectives then activated their dash light and siren and pulled defendant over. Next, the detectives approached defendant's car and asked him for his driver's license. Defendant produced a -3- temporary driver's license, but it was discovered the passenger accompanying defendant was not a licensed driver. The detectives then asked defendant why he was driving with his lights off. Defendant did not respond. Flynt noticed defendant's speech was slurred and he detected an odor of alcoholic beverages. Flynt suspected defendant was intoxicated so he told defendant to wait in his car. The detectives proceeded to call Officer Simone, who was a veteran of DUI stops and was driving a car equipped with a video camera Approximately two to three minutes later, Simone arrived, pulled in behind defendant's car, and began videotaping the incident. Simone asked defendant to exit his car. As defendant exited his car he staggered. Simone requested defendant step behind his own car and face the police car. Defendant proceeded to walk to the police car and place his hands on it. Simone in- structed defendant to back up and face the police car and defendant complied. Next, defendant was asked to perform some field sobriety tests. First, Simone told defendant to recite the alphabet. Defendant recited the alphabet three times but skipped some letters and slurred his speech. Second, Simone asked defendant to count backwards from 49 to 27. Defendant started to count, stopped once and started a second time. The second time he counted backwards to 34 but stopped without any explanation. Third, defendant was asked to stand on one leg, but was unable. Fourth, defendant was asked -4- to put his right foot in front of his left foot and remain stationary but he was also unable to do this. At the conclusion of the field sobriety tests, Simone noted defendant's eyes were dilated and he smelled of alcohol. Simone proceeded to arrest defendant, read him his Miranda rights, and place him in the back of the police car. Defendant was then transported to the 2nd District Police Department where he refused to take a breathalyzer test. Defendant testified he took some medication and drank one beer around 5:00 p.m. Defendant stated he went with a friend to get a meal and while traveling west on Monroe street he pulled to the curb after hearing a siren and seeing a blue light. He indicated he was driving 15 to 25 miles per hour and that there were no other cars on the road. Defendant stated he had a bad left knee which occasionally gives out and he also suffers from epilepsy. On appeal defendant presents fifteen assignments of error. For his first assignment of error, defendant states as follows: DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT OVERRULED HIS MOTION TO SUPPRESS. Defendant argues the trial court erred by overruling his motion to suppress. He claims he should have been advised of his rights immediately after Simone arrived and as a result of this omission the subsequent questioning and sobriety tests should have been ruled inadmissible. Moreover, defendant complains he was deprived of his freedom during the two to three minute period he -5- was held while waiting for Officer Simone to arrive. Lastly, defendant argues Detective Flynt did not have probable cause to stop him. First, we must discuss the issue of whether there was probable cause to stop defendant. The two detectives stopped defendant because he was driving his car at night without his headlights on. This is a violation of CCO 437.02A. In Dayton v. Erickson (1996), 76 Ohio St.3d 3, the Ohio Supreme Court held [w]here a police officer stops a vehicle based on probable cause that a traffic violation has occurred or was occurring, the stop is not unreason- able under the Fourth Amendment to the United States Constitution ***. Defendant, driving without his headlights on had committed a traffic violation and in light of the holding in Dayton, the stop of defendant was reasonable. The second issue we must address is whether after the stop, defendant should have been apprized of his Miranda rights. This exact issue was considered in State v. Feasel (1988), 41 Ohio App.3d 155, where Feasel was observed by a police officer driving erratically. The officer pulled Feasel over, detected an odor of alcohol, and conducted field sobriety tests which Feasel failed. Feasel was then arrested and transported to the police station where Miranda warnings were administered. The court held such a roadside stop is not a custodial interrogation requiring the officer to read the detained person Miranda warnings. Id., at 157, citing Berkemer v. McCarty (1984), 468 U.S. 420, 437-439. -6- Like in Feasel, defendant in the instant case was not read his Miranda warnings until after he failed the field sobriety tests. However, as the court in Feasel held, a police officer who detains a motorist on suspicion of driving while intoxicated is under no obligation to read the motorist Miranda warnings until the officer determines the motorist is under arrest. Id. Consequently, defendant was timely apprized of his Miranda rights after he was arrested. The third issue defendant complains of is that he was illegally detained and deprived of his freedom of movement after he was stopped, during the two to three minute period he waited for Officer Simone to arrive at the scene. In State v. French (1995), 104 Ohio App.3d 740, 747, the court considered whether a detention after a stop is unreasonable and stated: An investigative stop may last no longer than is necessary to achieve the purpose of the stop. Florida v. Roger (1983), 460 U.S. 491, 500, 103 S.Ct. 1319, 1325- 1326, 75 L.Ed.2d 229, 238; State v. Bevan (1992), 80 Ohio App.3d 126, 129, 608 N.E.2d 1099, 1100-1101. *** In determining whether a detention is reasonable, the court must look at the totality of the circumstances. Bobo, supra, 37 Ohio St.3d 177. *** However, the absolute length of the detention is not the only factor to consider. See United States v. Sharpe (1985), 470 U.S. 675, 105 S.Ct. 1568, 84 L.Ed.2d 605 (in assessing whether a detention was too long, it is appropriate to consider whether police diligently pursued investigation likely to quickly confirm or dispel their suspicions). See, also, United States v. French (C.A.6, 1992), 974 F.2d 687 (forty-five minute delay while drug dog brought to truck stopped on highway proper where officer had already smelled what appeared to be marijuana). -7- Detective Flynt testified he stopped defendant and told him he was driving with his headlights off and asked him for his license. Flynt stated defendant's speech was slurred and he detected an odor of alcohol. Flynt said at this point he suspected defendant was intoxicated and so Officer Simone was called and asked to come to the scene. Flynt testified defendant remained in his car and two to three minutes later Simone arrived. During this time, Flynt testified that defendant was not questioned and simply remained in his car while he and the other detective waited for Simone in their car. We are not convinced, considering the totality of the circumstances, that Detective Flynt acted unreasonably in detaining defendant for two to three minutes while he waited for Officer Simone to arrive. Defendant smelled of alcohol and slurred his speech. After this was observed by Detective Flynt, defendant was informed to remain in his car. He was not questioned or interro- gated. He simply had to wait two to three minutes for Officer Simone to arrive. There was probable cause to stop defendant, there was no questioning under duress, the time he was detained was minimal and in furtherance of the investigation. Based on these facts we do not see how defendant's detention was illegal or a deprivation of his freedom. When a defendant challenges the trial court's findings of fact on a motion to suppress, as in the present case, an appellate court must determine whether the findings of fact are against the -8- manifest weight of the evidence. State v. Searls (1997), 118 Ohio App.3d 739, 741. The trial court denied defendant's motion to suppress. Our review of the record leads us to conclude that the trial court's findings of fact are not against the manifest weight of the evidence. See State v. Fanning (1982), 1 Ohio St.3d 19. Accordingly, defendant's first assignment of error is overruled. Defendant's second assignment of error states as follows: DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT OVERRULED A MOTION TO DISMISS AS TRAFFIC TICKETS WERE NOT PROPERLY SERVED. Defendant argues his motion to dismiss was incorrectly denied because he was not served with any ticket concerning his arrest. In support, defendant cites Ohio Traffic Rule 3(E) which mandates that a law enforcement officer who issues a ticket sign it, serve it on the defendant, and file it with the court. Therefore, because of the lack of service, defendant maintains his motion to dismiss should have been granted. The record contains a ticket which outlines the four charges against defendant. The ticket is signed by Officer Simone and has the names and badge numbers of the other two policeman who were present on the night in question. The record also indicates a criminal complaint was filed on December 4, 1996. Moreover, Officer Simone testified at trial that he issued a ticket to defendant and read him Bureau of Motor Vehicle Form 2255 which explains to defendants arrested for DUI the civil penalties for refusing to take a blood-alcohol content test. -9- In State v. Jones (1991), 76 Ohio App.3d 604, the court held the legal arrest of an accused together with filing of valid complaint upon which warrant is issued subjects the accused to the municipal court's jurisdiction. Defendant was legally arrested and a valid complaint was filed. Plus, Officer Simone testified he did in fact sign and issue defendant a ticket. In addition, defendant does not state in his brief how the alleged non-service of the ticket prejudiced him. We find defendant was prejudiced in no way by the procedure followed and the record and testimony of Officer Simone supports the trial court's decision denying defendant's motion to dismiss. Thus, the trial court did not abuse its discretion in denying defendant's motion to dismiss. Defendant's second assignment of error is overruled. For his third assignment of error defendant states as follows: DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO PRESENT A DEFENSE WHEN THE COURT WOULD NOT ALLOW A READING OF PRIOR TESTIMONY OF AN UNAVAILABLE WITNESS. Defendant argues he was denied the right to present a defense because the trial court did not allow the court reporter to read the testimony of Detective Flynt, who had earlier testified at the motion to suppress hearing. Flynt testified at the suppression hearing that defendant did not cross the centerline. Defendant claims this conflicts with Detective Sotomayor's testimony at trial that he saw defendant turn left on a red light and weave three times as he proceeded down the road. Defendant could not call Flynt as a witness at trial because he was unavailable. Thus, -10- defendant maintains he should have been able to present Flynt's contradictory testimony at trial pursuant to Evid.R. 804(B)(1) which provides that testimony given by a witness at a hearing of the same or different proceeding is not excluded by the hearsay rule. Additionally, defendant claims the trial court erred by sustaining an objection to the admission of Flynt's prior testi- mony. The state counter-argues the trial court properly denied the admission of Detective Flynt's testimony. The state maintains defendant never established that Flynt was unavailable as a witness and it was therefore incumbent upon the trial court to sustain the state's objection. Evid.R. 804(B)(1) provides exceptions to the hearsay rule and states the following are not excluded by the hearsay rule if the declarant is unavailable as a witness (1) Former Testimony: Testimony given as a witness at another hearing of the same or different proceeding ***. The rule also defines unavailability of a witness as when the declarant (4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity. In State v. Kearns (1984), 9 Ohio St.3d 228, 231-232, the court stated Evid.R. 804 requires a showing of unavailability despite reasonable, good faith efforts to secure the witness' attendance. Moreover, the proponent of the evidence has the burden of establishing such efforts have been made based on the personal knowledge of witnesses. Id. The court went on to describe -11- reasonable good efforts by citing to State v. Madison (1980), 64 Ohio St.2d 322, where the prosecution offered testimony it had visited declarant's last known address, made inquiries of his mother and employer, sent out a nationwide bulletin, and made inquiries at local morgues and jails. In contrast, the Kearns court described the following as not reasonably good efforts: a prosecutor stating a subpoena had been issued, that police officers had searched for declarant, and the declarant lied about her address when testifying earlier. See also State v. Smith (1979), 58 Ohio St.2d 344. During cross-examination of Officer Sotomayor in the present case, defense counsel questioned Sotomayor regarding how defendant was driving on the night in question. Sotomayor stated defendant was weaving. Then defense counsel attempted to impeach this testimony by offering the testimony of Detective Flynt, who had testified at the prior suppression hearing but was now unavailable: Q. Well, would you agree with Detective Flynt when he testified back in March of 1997, that he stated that this car was being driven properly? MR. TORRES: Objection, your Honor. THE COURT: Objection is sustained. A. Would you agree with that? THE COURT: Objection is sustained. Q. Would you agree with Detective Flynt that there was no strong odor of alcohol coming from - - MR. TORRES: Objection. THE COURT: Objection is sustained. -12- Q. Detective Flynt coming down here to testify in this case? A. I don't think so. Q. Do you know where he is at? A. He had a car accident on duty. I believe he is injured. Q. I mean, is he home? A. I believe so. Q. I mean, he is not on a respirator or something life threatening? A. He is probably in physical therapy or some- thing. The above testimony reveals Detective Flynt was not going to testify because of his involvement in a car accident. This is sufficient to establish that Flynt could not testify because of a physical injury. This properly established the unavailability of Flynt. However, a close reading of both witnesses testimony reveals their testimony was not in conflict as defendant claims. Flynt testified defendant did not cross over the centerline. Sotomayor testified defendant weaved three times. Sotomayor never stated defendant crossed the centerline. This is a minuscule difference but it establishes Flynt and Sotomayor's testimony was not in conflict and thus there was no need to have Flynt testify at trial. Moreover, even if the trial court erred in denying the admission of Flynt's testimony, the error was harmless. Sotomayor's testimony regarding defendant's driving on the night in question was wholly irrelevant because the probable cause to stop defendant -13- was already established by defendant failing to drive with his headlights on. As a result whether defendant was weaving or crossed the center-line is inconsequential. Because there was probable cause to stop defendant for driving with his headlights off, any error would not have effected the outcome of the trial. See B.P. Oil v. Dayton Bd. of Zoning Appeals (1996), 109 Ohio App.3d 425. Defendant's third assignment of error is overruled. Defendant's fourth and fifth assignments of error are interrelated and will be addressed together. They state as follows: DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT ALLOWED HEARSAY EVIDENCE TO ESTABLISH AN OFFENSE AND REFUSED SIMILAR EVIDENCE ON BEHALF OF THE DEFENDANT TO ESTABLISH A DEFENSE. DEFENDANT WAS DENIED CONFRONTATION AND CROSS-EXAMINATION WHEN THE COURT ALLOWED HEARSAY EVIDENCE CONCERNING THE OFFENSE OF OPERATING ON A TEMPORARY PERMIT WITHOUT A LICENSED DRIVER. First, defendant maintains the testimony of Officer Simone relating to the passenger in defendant's car not being able to produce a license was hearsay testimony because it was an out-of- court statement restated by a non-declarant. As a result, defendant claims the trial court improperly overruled his objection regarding the admissibility of this testimony. Second, defendant argues there was no competent evidence supporting his conviction for driving with a temporary permit unaccompanied by a licensed driver. He claims Officer Simone's testimony that he asked the passenger if he had a license and the passenger not producing one, is hearsay and should not have been -14- admitted thus denying him the right to confrontation and cross- examination. The critical question which must be discussed is whether Simone's testimony regarding the passenger and his lack of a license is hearsay testimony. The following discussion occurred while Simone was testifying about defendant not being accompanied by someone with a valid driver's license: Q. How do you know that he was not accompanied by a driver's license? MR. MANCINO: Objection. THE COURT: Objection overruled. A. I asked his companion if he had a license. Q. What was his response. MR. MANCINO: Objection. THE COURT: Approach the bench. THE COURT: Didn't I say, objection. What he asked the passenger, it's hearsay. Objection is overruled. Q. Did you hear the last question? A. Yes, sir. Q. What was the last answer to the question? A. The companion did not have a license. Hearsay is defined in Evid.R. 801(C) as: [A] statement, other than one made by declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. A statement is further defined by Evid.R. 801(A) as: -15- (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by him as an assertion. Simone does not relate what the passenger said verbatim or indicate what the passenger told him. His response is that he learned from the passenger that he did not have a license. It is not clear whether this information was conveyed by the passenger orally or through nonverbal conduct or through inaction. It has been recognized that only conduct apparently intended by the actor to convey his thoughts to another, comes under the ban of the hearsay rule. State v. Kniep (1993), 87 Ohio App.3d 681, 685. In the present case, we find Simone's statement about the passenger and his lack of a license did not portray his conduct and was not apparently intended to convey the passenger's thoughts to Simone. Id.Therefore, the statement is not hearsay and the trial court did not abuse its discretion in admitting Simone's testimony. In light of this holding, both of defendant's arguments fail because they are premised on the conclusion that the testimony of Simone was hearsay and inadmissible. Defendant's fourth and fifth assignments of error are overruled. Defendant's sixth assignment of error states as follows: DEFENDANT WAS DENIED A FAIR TRIAL WHEN IMPROPER OPINION EVIDENCE WAS OFFERED. Defendant claims as error the admission of Simone's opinion testimony regarding whether he was intoxicated or not. Defendant argues Simone gave no facts to support his opinion as an expert and therefore his testimony should not have been admitted. Defendant -16- also contends Simone gave an improper answer as to whether he could drive on the night in question because Simone did not observe him driving. Simone testified regarding his experience with intoxicated drivers and stated: Q. During the time that you were a uniformed police officer, did you have any opportunity to deal with people that were driving under the influence of alcohol or drugs or a combination both? A. Yes, very much so, sometimes three a night. Q. Would you say, you have intervened more or less on how many cases? A. I don't have a number, but several hundred. Q. Several hundred. Based on your experience that you had dealing with those people that were driving under the influence of alcohol and drugs or a combination of both, what would you say was the condition of the defendant driving that night? MR. MANCINO: Objection. THE COURT: Objection is overruled. A. The defendant was, in my opinion, impaired, obviously impaired. In City of Toledo v. Starks (1971), 25 Ohio App.2d 162, a defendant claimed it was error for the court to admit the testimony of a police officer regarding whether he was driving under the influence of alcohol. The court overruled the assignment of error stating [a]n opinion by any person concerning the lack of sobriety of a defendant is admissible in evidence without the witness first being qualified as an expert, so long as that person in all probability has had sufficient experience with intoxicated persons -17- to be qualified to form and express an opinion and has opportunity to observe defendant. Applying this reasoning to the instant case, Simone stated he has dealt with several hundred alcohol influenced drivers, sometimes three a night. Plus, he testified he observed defendant on the night in question and defendant was impaired. Thus, Simone was qualified to give his opinion as to whether defendant was intoxicated. Defendant's argument is without merit. Next, defendant complains Simone gave an improper answer. This argument is also without merit. Defendant claims Simone did not see him driving so Simone should not be able to give his opinion regarding his ability to drive. Simone based this opinion on his experience with several hundred other intoxicated drivers he has confronted and on defendant's conduct where he staggered out of his car and failed several field sobriety tests after he was stopped. Simone's opinion was not intended to be based on observing defendant drive on the night in question. Defendant's sixth assignment of error is overruled. Defendant's seventh assignment of error states as follows: THE COURT ERRED WHEN IT ADMITTED EXHIBIT 1. Defendant complains the trial court should not have admitted exhibit 1, a BMV form pertaining to probable cause, because it was hearsay. He claims it was typed by Det. Flynt and Flynt did not testify thus the form was inadmissible. Furthermore, defendant argues it was an inadmissible because it was prejudicial to him because he could not cross-examine the author, Flynt. -18- The state maintains the document is not hearsay because both Officer Simone and Det. Sotomayor were present and subject to cross-examination and they participated in the preparation of the document. Plus, Simone identified the document and was able to explain any and all notations on its face. Lastly, the state submits defendant has not shown how it has prejudiced him. The form which defendant claims is hearsay and prejudicial is BMV form 2255. This form is used by the police to document the existence of probable cause to stop a driver they believe is driving under the influence. It details personal information about the driver and indicates the consequences of being stopped. On cross-examination, Simonestated all three officers participated in the completion of the form and that he personally was involved in the section where defendant refused to take a breathalyser test. Det. Sotomayor was also present and subject to cross-examination but was not questioned by defendant about the form. The form itself was not relevant to probable cause for the stop of defendant and was not related to whether defendant was illegally detained. In fact we do not see how this form was prejudicial in any way regarding defendant. Moreover, it was not hearsay because Simone stated he authored part of the form. Thus, it was not an out-of- court statement by a non-declarant. Accordingly, absent a finding of prejudice to defendant we find the trial court did not abuse its discretion in admitting the BMV form, over defendant's objection. Defendant's seventh assignment of error is overruled. -19- Defendant's eighth assignment of error states as follows: DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT REFUSED TO INSTRUCT THE JURY ON A CULPABLE MENTAL STATE FOR THE OFFENSE OF OPERATING A VEHICLE WITH A TEMPORARY PERMIT UNACCOMPANIED BY A LICENSED DRIVER. Defendant complains the trial court should have instructed the jury the offense of operating a vehicle with a temporary permit without a licensed driver involves a culpable mental state. Therefore, the trial court erred when it stated there was no culpable mental state because the offense was a strict liability offense. The CCO which codifies having a permit and driving without a licensed driver is section 435.03 which reads [n]o person who is the holder of a temporary instruction permit *** shall drive a motor vehicle *** except when having such permit in his immediate possession and when accompanied by a licensed operator ***. We must determine whether a culpable mental state is imposed by this statute. When a statute contains the language no person shall commit the proscribed conduct, absent any reference to the required mental state of the accused, this indicates a legislative intent to impose strict liability for the commission of the prohibited act. State v. Harr (1992), 81 Ohio App.3d 244, 249, citing State v. Chesaro (1988), 43 Ohio App.3d 221, 223. Applying this reasoning to the present case, the no person shall language appears in the Cleveland Ordinance 435.03. Even though there are qualifying words stating who is the holder of a temporary instruction permit -20- separating the phrase, we find these words have no effect on the culpable mental state intended by the ordinance and are merely words that limit or qualify. Therefore, we hold driving a motor vehicle while in possession of a temporary instruction permit without the company of a licensed driver is a strict liability offense, imposing no culpable mental state and defendant's eighth assignment of error is overruled. Defendant's ninth assignment of error states as follows: DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT SUBMITTED A VERDICT FORM TO THE JURY CONCERNING AN OFFENSE FOR WHICH THE COURT DID NOT INSTRUCT THE JURY. First, defendant argues the trial court submitted an erroneous verdict form to the jury because what was given to the jury was not the same as that charged in the complaint, i.e., that defendant operated a vehicle while under the influence of alcohol or a drug of abuse or alcohol or a drug of abuse. Second, defendant claims the trial court never instructed the jury as to what constitutes operating a vehicle while under the influence of a drug of abuse or alcohol and drug of abuse. As a result of these terms not being defined, defendant claims the jury could not render a verdict in a constitutional sense. Defendant was charged with a violation of Cleveland Codified Ordinance 433.01(a)(1) which states [n]o person shall operate any vehicle within the city, if any of the following apply: (1) the person is under the influence of alcohol, a drug of abuse, or alcohol and a drug of abuse. The jury verdict states operating a vehicle while under the influence of alcohol, a drug of abuse, or -21- alcohol and a drug of abuse in violation of M.C. 433.01A1. The verdict form lists the correct ordinance and except for a few non- essential words is identical to the wording in the ordinance. A verdict form containing the statutory description of the offense is reversible if it omits essential elements of the offense. State v. Lampkin (1996), 116 Ohio App.3d 771. Here, the essential elements of the offense were listed so the verdict form was properly submitted to the jury. The second part of defendant's argument contends the trial court did not properly instruct the jury as to drug of abuse or what was a drug of abuse. Defendant's argument is misplaced. The ordinance reads under the influence of alcohol, a drug of abuse, or alcohol and a drug of abuse. There are three potential influences in this ordinance either alcohol, a drug of abuse or a combination of the two. In the present case, the evidence centered on defendant being influenced by alcohol. He admitted to consuming alcohol before he began driving, open containers of alcohol were found in his car, and he smelled of alcohol. The trial court instructed the jury for operation of a motor vehicle, alcohol, and for under the influence . Because the case centered on defendant being influenced by alcohol any instruction the trial court would have given the jury on drug of abuse would be irrelevant and confusing. Thus, defendant's ninth assignment of error is overruled. Defendant's tenth assignment of error states as follows: -22- DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN HE WAS SENTENCED FOR AN OFFENSE FOR WHICH HE HAD NOT BEEN FOUND GUILTY IN OPEN COURT. Defendant argues the trial court announced it would decide the minor misdemeanor offenses of seatbelt violation and headlight violation in open court. However, defendant claims the trial court did not announce these verdicts as it is required pursuant to R.C. 2938.11(F) and therefore he was denied his constitutional right to be present at these proceedings. A review of the trial transcript shows the trial court never stated it would announce the minor misdemeanor offenses in open court, as defendant alleges. The trial court announced each decision and sentence at the sentencing hearing. Moreover, R.C. 2938.11(F) which states a court shall announce any verdict in open court does not proscribe mandatory procedure by the court but, rather, it is just a directory guideline suggested by the legisla- ture. See City of Xenia v. Manker (1984), 18 Ohio App.3d 9. In light of this reasoning, we overrule defendant's tenth assignment of error. Defendant's eleventh assignment of error states as follows: DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN HE WAS FOUND GUILTY OF A SEATBELT VIOLATION. Defendant argues there is no evidence he operated his vehicle while not wearing a seatbelt. He claims neither of the police officers who testified at trial stated they saw him driving without his seatbelt and thus there is no evidence to support his convic- tion for this offense. -23- Neither the testimony of Det. Sotomayor nor that of Officer Simone indicates defendant was driving without his seatbelt. There is no other evidence or testimony which supports defendant's conviction for driving without a seatbelt. Thus, defendant's conviction for driving without seatbelt is reversed. Accordingly, defendant's eleventh assignment of error is sustained. In his twelfth assignment of error defendant states as follows: DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT REFUSED TO DISMISS THE CHARGE OF DRIVING WHILE INTOXI- CATED. Defendant contends he was improperly charged because the ticket filed against him charged him with the wrong offense. He claims the ticket charged him with driving while intoxicated and this is not even an offense. Therefore, defendant argues the offense of driving while intoxicated should be dismissed. This exact issue was confronted by the Ohio Supreme Court in Barberton v. O'Connor (1985), 17 Ohio St.3d 218, paragraph one of the syllabus, where the court stated: A Uniform Traffic Ticket properly charges the defendant with an offense when it describes the nature of the offense as `DWI' and makes reference to the ordinance that gives rise to the offense, even if it does not indicate the substance that caused the defendant to be intoxicated. In the instant case, the ticket clearly states driving while intoxicated and lists the correct ordinance as 433.01a1. Accordingly, the officers properly charged defendant and his twelfth assignment of error is overruled. -24- In his thirteenth assignment of error defendant states as follows: DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT OVERRULED DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL FOR OPERATING WITHOUT A LICENSED DRIVER. Defendant complains the trial court erred by denying his motion for acquittal concerning the offense of operating a vehicle without a licensed driver present. Defendant claims there was a licensed driver present and the state did not provide competent evidence to support the denial of the motion. CCO section 435.03 is the offense of driving with a temporary permit without a licensed driver. It contains three elements: (1) operating a motor vehicle, (2) with a temporary permit, and (3) unaccompanied by a licensed driver in the seat beside such a driver. The state presented competent, credible evidence on all three of these elements. At trial, Det. Sotomayor was asked on direct examination whether the passenger had a driver's license. Sotomayor responded [t]he companion did not have a license. Sotomayor stated further he observed defendant operating a motor vehicle. Lastly, Officer Simone testified he asked defendant whether he had a driver's license and defendant produced a temporary permit. Construing the evidence most strongly in favor of the prosecution, we hold the evidence is such that reasonable minds can reach different conclusions as to whether each material element of the offense has been proven beyond a reasonable doubt. State v. Bridgeman (1978), 55 Ohio St.2d 261. Therefore, the trial court -25- correctly denied defendant's motion for acquittal. Accordingly, defendant's thirteenth assignment of error is overruled. Defendant's fourteenth assignment of error states as follows: DEFENDANT WAS DENIED DUE PROCESS OF LAW WHEN THE COURT OVERRULED HIS MOTION FOR JUDGMENT OF ACQUITTAL CONCERNING DRIVING WHILE UNDER THE INFLUENCE. Defendant contends the trial court erred by denying his motion for acquittal regarding the offense of driving while under the influence. Defendant claims it was never shown what his impairment was. Plus, he maintains the reason he failed the field sobriety tests was a result of his physical condition and medication he was required to take. According to R.C. 4511.19(A) the elements of driving under the influence are: (1) operation of (2) a motor vehicle (3) anywhere in the state (4) while under the influence of alcohol, a drug of abuse or alcohol and a drug of abuse. The state provided sufficient evidence regarding each of these elements. Detective Sotomayor stated he observed defendant operating a motor vehicle in the City of Cleveland. Sotomayor also stated defendant's speech was slurred and he smelled an odor of alcohol emanating from the car defendant was driving. Officer Simone testified he smelled an odor of alcohol coming from defendant and defendant's eyes were dilated. Simone also stated defendant could not even exit his car without staggering and defendant failed several field sobriety tests. Based on this evidence we find reasonable minds could reach different conclusions as to whether each element of the crime has -26- been proven beyond a reasonable and thus the trial court properly denied defendant's motion for acquittal. Bridgeman, supra. Defendant's fourteenth assignment of error is overruled. Defendant's fifteenth assignment of error states as follows: DEFENDANT WAS PLACED TWICE IN JEOPARDY WHEN DEFENDANT WAS SENTENCED BY THE COURT. Defendant argues his driving while under the influence ( DUI ) sentence should be terminated because he was subject to double jeopardy. Defendant bases this argument on the fact that his administrative license suspension ( ALS ) overlaps his DUI sentence for a period of five months. This he claims penalizes him twice for the same conduct and in accordance with State v. Gustafson (1996), 76 Ohio St.3d 425 and City of Seven Hills v. Wankewycz (1996), 114 Ohio App.3d 652, he should have his DUI sentence terminated as this overlap amounts to Double Jeopardy. The Ohio Supreme Court in Gustafson held an ALS suspension ceases to be remedial and becomes punitive in nature to the extent it is deemed to continue subsequent to conviction and sentencing for *** a DUI. Id. at 443. The Court then discussed a situation similar to the instant case where defendants refused to subject themselves to chemical testing and an ALS suspension was imposed, but they later plead no contest to the DUI charges filed against them. With these facts, the Court stated the case should be remanded with instructions that the trial court issue an order to the BMV to terminate [the ALS], retroactive to the date of sentencing on the DUI [conviction]. Id. at 444. -27- Thus, the Court found the aggregate continued application of a DUI sentence and ALS suspension, a violation of the Double Jeopardy Clause of the U.S. Constitution. However, the Court remedied the situation by finding a trial court should terminate the ALS suspension at the time of sentencing for the DUI and keep intact the DUI sentence retroactive to the date of sentencing. In the instant case the facts are exactly like the facts discussed in Gustafson. Herein, defendant refused to take the breathalyzer on December 3, 1996. Thus, he subjected himself to an ALS for one year until December 3, 1997. Subsequently, defendant was convicted of the DUI. He was sentenced for the DUI July 14, 1997, and had his license suspended for two years until July 14, 1999. However, the trial court failed to terminate his ALS by sending notice to the BMV, per Gustafson. As a result, defendant's ALS overlapped his DUI sentence for a period of five months, from the date of sentencing July 14, 1997 until December 3, 1997, when his ALS terminated. Based on the reasoning in Gustafson, we must remand this case back to the trial court with orders to terminate the ALS retroac- tive to the date of sentencing but keep the DUI sentence in effect. This exact procedure was adopted by this court based on the same set of facts in City of Richmond Heights v. Matthews (Oct. 3, 1996), Cuyahoga App. No. 68986, unreported, where Matthews refused to submit to a breathalyzer but was later found guilty of DUI by the trial court. The record did not indicate whether the trial court terminated the ALS, so we stated in accordance with Gustafson -28- the case is affirmed and remanded with instructions that the trial court issue an order to the Bureau of Motor Vehicles to terminate the ALS retroactive to the date of sentencing on the DUI ***. However, three weeks later this court decided City of Seven Hills v. Wankewycz (1996), 114 Ohio App.3d 652 which directly contradicts both Gustafson and Matthews. Wankewycz was arrested for DUI and failed a breathalyzer test. As a result an ALS was imposed for ninety days. He then pleaded guilty to the DUI charge and had his license suspended for six months. However, the trial court failed to terminate Wankewycz's ALS at the time of sentencing and therefore his ALS overlapped his DUI sentence for approximately one month. In the meantime, the trial court stayed Wankewycz's sentence pending appeal. The panel in this case, aware that the ALS was not terminated, determined Wankewycz was subject to double jeopardy because of the overlap and terminated his DUI sentence. A close reading of Wankewycz reveals it correctly relies on Gustafson. However, the part it relies on applies to a fact scenario different from the facts in Wankewycz. In Wankewycz the trial court failed to terminate the ALS, but the part of Gustafson it relies on refers to a scenario where the trial court did terminate the ALS. Wankewycz states: 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. Thus R.C. 4511.191 would be applied unconstitu- tionally to them. -29- This cite refers to defendants Miller, Brown, and Smith, in Gustafson, whose ALS' were terminated by their respective trial courts, in contrast to Wankewycz where the trial court did not terminate the ALS. The reasoning in Gustafson which was relied on in Matthews has been adopted by every court which has addressed this issue. Wankewycz is clearly a minority position. See City of Eastlake v. Huffman (Feb. 6, 1998), Lake App. No. 95-L-086, unreported; State v. Lewis (Feb. 28, 1997), Montgomery App. No. 15897, unreported; State v. Hetzer (Sept. 25, 1996), Hamilton App. No. C-960172, unreported; State v. Auxier (Sept. 20, 1996), Erie App. No. E-95- 050, unreported; State v. Johnson (Sept. 13, 1996), Wood App. No. WD-95-053, unreported; State v. Bunker (Aug. 21, 1996), Hamilton App. No. C-950161 and C-950229, unreported. Based on Gustafson and Matthews, we affirm defendant's DUI conviction and remand this case back to the trial court with an order to terminate defendant's ALS retroactive to the date of sentencing. Accordingly, defendant's fifteenth assignment of error is overruled. Affirmed in part, reversed in part and remanded. -30- This cause is affirmed in part, reversed in part and remanded to the lower court for further proceedings consistent with this opinion. It is, therefore, considered that said appellee recover of said appellant its costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JOSEPH J. NAHRA, P.J. MICHAEL J. CORRIGAN, J., CONCUR. JUDGE JOHN T. PATTON 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 .