Defendant-appellant Raymond Piwinski appeals from an order of the Garfield Heights Municipal Court denying his motion to dismiss criminal charges against him on grounds of double jeopardy.
Defendant was charged with the following three offenses on November 22, 1994: (1) operating a motor vehicle while under the influence of alcohol in violation of R.C. 4511.19(A)(1), (2) operating a motor vehicle with a prohibited breath-alcohol concentration in violation of R.C. 4511.19(A)(3), and (3) failing to operate his vehicle within the lanes marked for travel in violation of R.C. 4511.33.
Defendant filed a motion to dismiss the charges against him, contending that the charges violated double jeopardy principles because an administrative license suspension had already been imposed against him for failing the breath-alcohol test at the time of his arrest. The municipal court denied defendant's motion to dismiss.
Defendant thereafter entered a plea of no contest. The municipal court found defendant guilty of operating a vehicle with a prohibited breath-alcohol content in violation of R.C.4511.19(A)(3). The municipal court merged the operating under the influence charge and nolled the lane of travel charge on motion of the prosecution. The municipal court stayed execution of sentence pending this appeal.
Defendant's sole assignment of error challenges the trial court's order denying his motion to dismiss the criminal charges as follows: *Page 331
"The trial court erred in finding that a criminal prosecution under Section 4511.19 of the Ohio Revised Code following an administrative license suspension under Section 4511.191 does not constitute multiple punishments for the same offense in violation of the Double Jeopardy Clause in the Fifth Amendment to the United States Constitution, and Article I, Section 10 of the Ohio Constitution."
This assignment lacks merit.
Defendant argues that the municipal court should have dismissed the criminal charges against him because it violated double jeopardy principles to maintain criminal proceedings against him after imposing an administrative license suspension arising from the same incident.
The Ohio Supreme Court unanimously rejected this precise argument in State v. Gustafson (1996), 76 Ohio St.3d 425,668 N.E.2d 435, paragraph one of the syllabus. The Gustafson court specifically noted that a criminal action was not barred by double jeopardy principles merely because the defendant had previously received an administrative license suspension arising out of the same incident. Accord Brook Park v. Carter (Sept. 26, 1996), Cuyahoga App. No. 69796, unreported, 1996 WL 547941.
The dissent argues that defendant's "ALS may have been in effect on the date of [his criminal] sentencing" and, therefore, he "was possibly and unconstitutionally exposed to double punishment." However, it is well established that a reviewing court must presume regularity and affirm the judgment of the trial court, even in the context of constitutional claims, absent an adequate record to establish an aggrieved party's claim of error. See State v. Pedreira (1988), 36 Ohio St.3d 614,522 N.E.2d 573.
The record in this case contains nothing to indicate that the administrative suspension of defendant's license continued beyond the date he was sentenced for his conviction of R.C.4511.19(A)(3).1 This is not surprising because defendant did not even raise this claim in the municipal court or supplement his argument in this court following the Supreme Court's opinion in Gustafson. It is well settled, contrary to the dissent's argument, that constitutional decisions should not be made "until the necessity for a decision arises on the record before the court." Hal Artz Lincoln-Mercury, Inc. v. Ford Motor Co. (1986), 28 Ohio St.3d 20, 28, 28 OBR 83, 90, 502 N.E.2d 590,597, fn. 6. As a result, we decline to speculate on *Page 332 any remaining issues.2
Accordingly, defendant's sole assignment of error is overruled.
Judgment affirmed.
DAVID T. MATIA, J., concurs.
HARPER, P.J., concurs and dissents.
1 The record contains an uncertified, unauthenticated computer printout that indicates that defendant committed prior DUI offenses. Even if this court could consider this document, however, the printout does not contain any information concerning the duration of defendant's ALS suspension in this case.
2 Because we decline to express any opinion concerning the merits of this issue, defendant is not foreclosed and may elect to raise this matter without prejudice in the trial court.