This appeal, having been heretofore placed on the accelerated calendar, is being considered pursuant to App.R. 11.1(E) and Loc.R. 12. Pursuant to Loc.R. 12, we hereby elect to issue a full opinion in lieu of a judgment entry. *Page 3
Defendant-appellant, Richard Sapariti, appeals the judgment and sentence of the Municipal Court of Sidney, Ohio, in which he was found guilty of operating a motor vehicle with a breath-alcohol concentration in violation of R.C. 4511.19(A)(3).
On January 14, 1997, Sapariti was cited for violations of R.C. 4511.19(A)(1), operating a motor vehicle under the influence of alcohol, R.C. 4511.19(A)(3), operating a motor vehicle with a prohibited breath-alcohol concentration, and R.C.4511.43, a stop sign violation. Sapariti also received an administrative license suspension ("ALS") in accordance with R.C.4511.191. A plea of not guilty to these charges was entered. Thereafter, pursuant to R.C. 4511.191(L), Sapariti paid a $250 license-reinstatement fee after his ALS ended, but before his trial.
On March 18, 1997, Sapariti filed a motion to dismiss the pending charges. This motion was subsequently overruled by the municipal court judge, and Sapariti then changed his plea. To the charge of operating a motor vehicle with a prohibited breath-alcohol concentration, he pled no contest. The remaining charges were dismissed. Sapariti was sentenced to three days in jail and fined $425, and had his license revoked for one hundred eighty days. This sentence, however, was stayed by the court pending appeal.
Sapariti appeals this judgment and sentence of the municipal court and asserts the following assignment of error:
"The trial court erred when it overruled appellant's motion to dismiss the criminal charges pending against appellant."
Sapariti's argument is that a person who pays the $250 reinstatement fee after an ALS has ended cannot be sentenced for a violation of R.C. 4511.19(A)(3) ("DUI"). He contends that although the ALS is a civil matter, the fee payment is in actuality a fine and, therefore, punishment. Thus, he maintains that any subsequent criminal prosecution of DUI constitutes multiple punishments for the same offense in violation of the Double Jeopardy Clauses of the United States and Ohio Constitutions. For the following reasons, we disagree with this analysis and affirm the municipal court's judgment.
The Double Jeopardy Clause of the United States Constitution provides:
"No person shall * * * be subject to the same offense to be twice put in jeopardy of life or limb * * *."
The United States Constitution's protections against double jeopardy have been incorporated against the states through theFourteenth Amendment. Benton v. Maryland (1969), 395 U.S. 784,786, 89 S. Ct. 2056, 2058, 23 L. Ed. 2d 707, 711; State v. Tolbert (1991), 60 Ohio St. 3d 89, 90, 573 N.E.2d 617, 619. The *Page 4 Ohio Constitution also has a double jeopardy prohibition, providing that "[n]o person shall be twice put in jeopardy for the same offense." Section 10, Article I. Preventing multiple punishments for the same offense is one abuse the Double Jeopardy Clause acts to prevent. United States v. Halper (1989),490 U.S. 435, 440, 109 S. Ct. 1892, 1897, 104 L. Ed. 2d 487,496-497. To demonstrate that this type of double jeopardy violation exists, a showing must be made that the civil and criminal sanctions were imposed in separate proceedings, the sanctions were imposed for the same offense, and the separate civil sanctions constitute punishment for double jeopardy purposes. Montana Dept. of Revenue v. Kurth Ranch (1994),511 U.S. 767, 778, 114 S. Ct. 1937, 1945, 128 L. Ed. 2d 767, 777-778.
For much of this matter, the Ohio Supreme Court decision ofState v. Gustafson (1996), 76 Ohio St. 3d 425, 668 N.E.2d 435, is dispositive. In that case, the court found that imposition of the ALS and the subsequent DUI prosecution, when arising from the same arrest, are considered separate proceedings for the purposes of a double jeopardy analysis. Id. at paragraph two of the syllabus. Further, the court held that revoking a license pursuant to the ALS is a sanction based on the same conduct or offense as the DUI prosecution. Id. at 439, 668 N.E.2d at 446. This is because an ALS "is inextricably intertwined with, and dependent upon, an arrest for violation of Ohio's DUI statute."Id. The Supreme Court concluded by determining that the punishment prong of this test is not violated when a criminal DUI prosecution occurs after an ALS ends, because of the remedial nature of the license suspension. However, the court did not address whether the ALS reinstatement fee, when paid before the DUI prosecution, constitutes multiple punishments in violation of the constitutional protections.
In this case, we find that the civil sanction of paying the ALS reinstatement fee prior to a DUI prosecution does not constitute punishment for double jeopardy purposes because it is most properly characterized as remedial. We base this finding on the Halper decision, which presented the concept of disproportionality.
The concept of disproportionality applies when determining if a civil sanction should be considered punishment for double jeopardy purposes. As stated by the United States Supreme Court, this determination requires an inquiry into "the purposes actually served by the sanction in question, not the underlying nature of the proceeding giving rise to the sanction [or the label affixed to the type of proceeding]." Halper,490 U.S. at 447-448, 109 S.Ct. at 1901-1902, 104 L.Ed.2d at 501, fn. 7. On the other hand, a civil sanction which is found to serve a deterrent purpose does not automatically render the sanction punitive. Kurth Ranch, 511 U.S. at 781, 114 S.Ct. at 1947,128 L.Ed.2d at 779-780. Instead, the question is whether the magnitude of the civil sanction is *Page 5 overwhelmingly disproportionate to the harm caused by the underlying conduct. Id. at 449, 109 S.Ct. at 1902,104 L.Ed.2d at 502; Gustafson, 76 Ohio St.3d at 433, 668 N.E.2d at 441-442. If the civil sanction is designated as disproportionate, although originally justified as remedial, the sanction can be recharacterized as punitive because of its disproportionality in relation to its nonpunitive purpose. Gustafson,76 Ohio St.3d at 440, 668 N.E.2d at 446-447.
The civil sanction Sapariti was obligated to pay was $250. We concede that the reinstatement fee appears to encompass punitive aspects. As identified by R.C. 4511.191(L)(2), the reinstatement fee is not merely an administrative fee to regain a forfeited license. Rather, the monies generated from the reinstatement fee, like fines, are divided into various funds which, in general, promote alcohol and drug intervention efforts.
However, this fee is not disproportionate to the harm caused by the wrongful conduct of driving while drunk. Persons who choose to drive while drunk affect innocent motorists and pedestrians in profound ways, with the most obvious being injury and death. Mackey v. Montrym (1979), 443 U.S. 1, 17-18,99 S. Ct. 2612, 2620-2621, 61 L. Ed. 2d 321, 333-335; Hoban v. Rice (1971),25 Ohio St. 2d 111, 114, 267 N.E.2d 311, 313-314. Thus, the state has a compelling interest to use summary procedures to promptly remove irresponsible drivers from the road as a public safety measure. Mackey, supra, at 17-18, 99 S.Ct. at 2620-2621,61 L.Ed.2d at 333-335. An ALS is one way to effectuate this objective. Hoban, supra, at paragraph one of the syllabus. Furthermore, that this wrongful conduct of driving while drunk continues to be pervasive is evidenced by the number of cases within the court system. Gustafson, 76 Ohio St.3d at 447,668 N.E.2d at 451 (Douglas, J., concurring).
Accordingly, we cannot say that the fee to reinstate the license once an ALS has ended is so overwhelmingly disproportionate to the harm inflicted upon society and the government by commission of the DUI offense that it must be considered punishment. See Halper, 490 U.S. at 449,109 S.Ct. at 1902, 104 L.Ed.2d at 502; State v. Cottril (Dec. 11, 1996), Ross App. No. 96CA2221, unreported; Cuyahoga Falls v. Mathies (Sept. 18, 1996), Summit App. No. 17591, unreported, 1996 WL 527196. Thus, Sapariti's sole assignment of error is overruled, and the judgment and conviction of the Municipal Court of Sidney, Ohio is affirmed.
Judgment affirmed.
THOMAS F. BRYANT, J., concurs.
EVANS, P.J., concurs separately. *Page 6