COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73762 CITY OF PARMA : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION DANIEL SAGGIO, JR. : : DEFENDANT-APPELLANT : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 10, 1998 CHARACTER OF PROCEEDING: Criminal appeal from Parma Municipal Court, Case No. 97-TRC-200. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: WILLIAM D. MASON Parma Law Director DAVID TOETZ Assistant Prosecutor TIMOTHY MILLER Assistant Prosecutor City of Parma 5750 West 54th Street Parma, Ohio 44129 For Defendant-appellant: PAUL J. STANO LES EVAN ROCKMAEL 6650 Pearl Road, Suite 202 Parma Heights, Ohio 44130 -2- SWEENEY, JAMES D., J.: Defendant-appellant Daniel Saggio, Jr. appeals from his conviction for driving under the influence of alcohol in violation of R.C. 4511.19(A)(1). The court found that this was the appellant's third OMVI in the last five years. On December 16, 1997, the appellant was found guilty and sentenced to a term of incarceration of 90 days, 60 of which were suspended. In the alternative, the court ordered that the appellant may, in lieu of incarceration, serve a term in jail of 15 days and then 55 days of electronically monitored house arrest. The appellant was fined $1,200 and costs; had his driver's license suspended for three years, retroactive to the date of the arrest; was required to undergo mandatory alcohol treatment pursuant to R.C. 4511.99; was ordered to attend 3 Alcoholics Anonymous meetings/alcohol classes per week for one year; and was placed on probation for twenty-four months. On January 5, 1997, the appellant was cited in count one for operating a vehicle while under the influence of alcohol; in count two for exceeding the speed limit (50 mph in a 25 mph zone); in count three for driving without headlights at night; and in count four for failing to utilize his seatbelt. The appellant refused to submit to a breath-alcohol test (BAC) and an automatic administrative license suspension (ALS) was imposed. The docket and journal entries indicate that: 1) on January 8, 1997, the ALS suspension was lifted, however, the court imposed a twenty-one day driver's license suspension from January 8, 1997 -3- through January 28, 1997; 2) the court suspended the appellant's driver's license for thirty days, from March 10, 1997 to April 8, 1997, but granted occupational driving privileges; 3) a one-hundred fifty-seven-day suspension was imposed, beginning April 8, 1997 through September 11, 1997, with occupational driving privileges granted; and, 4) a ninety-seven day suspension was imposed, beginning September 11, 1997 through December 16, 1997, with occupational driving privileges granted. A motion to dismiss based upon double jeopardy was filed by the appellant on September 4, 1997. A supplemental motion was filed on December 15, 1997. Attached to the supplemental motion are exhibits demonstrating that the Ohio Bureau of Motor Vehicles acknowledged that the appellant had paid the $250 reinstatement fee and had supplied proof of insurance, but that the suspension of his driver's license remained in effect until January 5, 1998. Also attached as an exhibit is a reinstatement fee receipt dated December 4, 1997. On December 16, 1997, the court denied the motion to dismiss. The appellant entered a plea of no contest to count one, driving under the influence of alcohol, and counts two, three and four were nolled. The appellant was found guilty and sentenced as indicated above. The court granted a stay of execution of the sentence pending appeal. The appellant asserts one assignment of error: THE COURT COMMITTED PLAIN, PREJUDICIAL AND REVERSIBLE ERROR BY DENYING DEFENDANT'S MOTION TO DISMISS BASED ON DOUBLE JEOPARDY. -4- The appellant seemingly asserts that the sentence imposed by the court for driving under the influence of alcohol subjected him to double jeopardy. The appellant argues that since the reinstatement fee is in and of itself punitive, and not remedial, payment of the fee prior to the imposition of the criminal sentence subjected him to double jeopardy. This analysis must begin with State v. Gustafson (1996), 76 Ohio St.3d 425, at syllabus one, where the Ohio Supreme Court found it permissible to impose an ALS suspension and still prosecute a motorist for driving under the influence of alcohol. The court determined that an ALS suspension becomes punitive, and ceases to be remedial, at the point an adjudication is entered and sentencing occurs. Id. at syllabus two. It is at this point that double jeopardy may occur, but a court has the judicial power under Section 1 and 4 Article IV of the Ohio Constitution to terminate an ALS suspension at the time of sentencing. Gustafson, supra. Thus, there is no inherent difficulty with the imposition of the ALS and prosecution for driving under the influence of alcohol. However, the appellant herein contends the court in Gustafson did not consider the facts present here where the fee was paid prior to adjudication. The appellant argues that the fee payment is actually a fine and, therefore, punishment, and any subsequent imposition of sentence subjects him to double jeopardy. In State v. Sapariti (1997), 118 Ohio App.3d 1, the court considered this issue. The court acknowledged that the monies generated from the reinstatement fee, like fines, are divided into -5- various funds, which, in general, promote alcohol and drug intervention efforts. Nonetheless, the court went on to find that this fee is not disproportionate to the harm caused by the wrongful conduct of driving while drunk, i.e., injury and death to innocent motorists and pedestrians, and thus, the State has a compelling interest to use summary procedures to promptly remove drivers from the road as a public safety measure. See Sapariti, supra, citing Mackey v. Montrym (1979), 443 U.S. 1, 17-18, 99 S.Ct. 2612, 2620- 2621, 61 L.Ed.2d 321, 333-335; and Hoban v. Rice (1971), 25 Ohio St.2d 111, 114. This court must conclude as did the court in Sapariti, supra, that the fee to reinstate a license, once an ALS has ended, is not so overwhelmingly disproportionate to the harm inflicted upon society by the commission of the DUI offense that it must be considered punishment. In the case sub judice the trial court terminated the appellant's ALS suspension three days after its imposition. The court repeatedly granted occupational driving privileges, but the license remained suspended, and it may be surmised that this continued suspension was due to appellant's failure to pay the reinstatement fee. From the document submitted by the appellant from the Ohio Bureau of Motor Vehicles, it does appear that the bureau failed to rescind the ALS once the fee was paid. From this bureaucratic snafu, no prejudice accrued to the appellant. When the trial court imposed sentence, it retroactively suspended the appellant's license back to the date of the offense, thereby giving him credit for both the time of the ALS he had already served and -6- giving him credit for the time in which he failed to pay the reinstatement fee. The appellant's 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 Parma 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, A.J., and JOHN T. PATTON, J., CONCUR. ______________________________ JAMES D. SWEENEY 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 of decision by the .