I wrote a concurring and dissenting opinion in response to the majority's original opinion, an opinion that failed to display a full appreciation of the Supreme Court of Ohio's decision inState v. Gustafson (1996), 76 Ohio St.3d 425, 668 N.E.2d 435. Specifically, the original opinion failed to recognize that due process violations can still occur in driver's license suspension cases where sentence is rendered without termination of a still-in-effect suspension.
The majority modified its original opinion as a result of my concurring and dissenting opinion. The majority now discusses how appellant is not entitled to a full review of his due process argument, since he failed to raise the issue exactly addressed in my original opinion and in Gustafson. Finding that a "computerized printout" is not competent evidence conveniently justifies the end result reached by the majority. The majority otherwise comments that appellant is free to pursue in the trial court the due process argument relating to suspensions beyond sentencing.
I point out that cases such as this one are cases that were appealed prior to the release of Gustafson. My opinion that the case should be remanded for a determination of a due process violation is an interim one, i.e., once trial courts comply withGustafson's legal pronouncements, such a remedy will hopefully not be necessary.
On this note, I offer my original concurring and dissenting opinion in its entirety:
I agree that a criminal prosecution under R.C. 4511.19 following an administrative license suspension ("ALS") under R.C. 4511.191 for the same conduct does not violate the Double Jeopardy Clauses of the United States and Ohio Constitutions. Appellant's assignment of error thus fails in this regard and his conviction remains valid. *Page 333
However, the majority opinion fails to recognize that theGustafson court did not halt its analysis with its conclusion that a criminal prosecution may legitimately follow the automatic license suspension. A full reading of Gustafson reveals the Supreme Court of Ohio's clear declaration that double jeopardy may be implicated in the punishment phase of a criminal prosecution which follows an ALS under R.C. 4511.191.
Despite the repeated characterization of driver's license suspensions as civil in nature and remedial in purpose, theGustafson court recognized the underlying theme of United Statesv. Halper (1989), 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487, and its progeny, i.e., remedial sanctions may be deemed "punishment" for double jeopardy purposes when they "`cross the line.'" Gustafson at 440, 668 N.E.2d at 446-447. An ALS "`crosses the line,' transforming an initially remedial license suspension into a punishment for double jeopardy purposes, at the point of criminal sentencing after a DUI conviction for violation of R.C. 4511.19." Id. at 442, 668 N.E.2d at 448. If the ALS is recognized or enforced beyond the time of sentencing, the ALS is cumulative punishment and precluded by the Double Jeopardy Clauses of the United States and Ohio Constitutions.Id., paragraph four of the syllabus.
Herein, appellant was arrested on November 22, 1994 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 discloses that appellant had prior DUI convictions, but only one occurred within the five years prior to appellant's arrest. The record, however, does not indicate whether appellant's conviction was related to a chemical test and, if so, whether appellant refused the test or consented to it. Depending on these unknown factors, the ALS may have been for a period of ninety days, one year, or two years. See R.C.4511.191(F).
On July 25, 1995, the trial court found appellant guilty of violating R.C. 4511.19(A)(3). The court suspended appellant's driver's license pursuant to R.C. 4507.16 for a period of one year from the date of arrest. The record otherwise does not refer to the ALS that may still have been in effect on the date of sentencing. Since there is no automatic termination of an ALS under these circumstances in contrast to the circumstances governed by R.C. 4511.191(K), appellant was possibly and unconstitutionally exposed to a second punishment on July 25, 1995, when he was convicted and sentenced on the DUI criminal charge without the termination of the ALS. See Gustafson.
Admittedly, the trial court was not subject toGustafson's guidelines when it sentenced appellant in July 1995. The constitutionality of pursuing criminal convictions after administrative license suspensions was just emerging as a controversial issue. However, given the conclusion that it is unconstitutional to *Page 334 sentence a defendant for a DUI offense under R.C. 4511.19 while the ALS remains in effect, I cannot adopt the majority's straight affirmance of appellant's conviction.
Although I concur in the affirmance of the conviction, I dissent insofar as the majority does not address the "multiple punishment" aspect of the double jeopardy analysis. The trial court should be instructed to issue an order to the Bureau of Motor Vehicles, if warranted, to terminate the ALS retroactive to the date of appellant's sentencing on the DUI charge. This instruction should be accomplished without causing appellant to appear in court and/or to incur any court costs, as his constitutional rights were the ones potentially violated by the conceivable failure to terminate the suspension.