I concur only in judgment because I cannot agree that this court should respond to the constitutional issue raised by appellant. Appellant argues that he was subjected to multiple punishments for the same offense in violation of the United States and Ohio Constitutions because he was forced to pay a punitive reinstatement fee to reinstate his driver's license following its suspension for driving while intoxicated, and then was punished again when he was sentenced on his criminal conviction based upon the same behavior.
First, I find that the majority opinion contains statements of fact which are unsupported by the record in this case. Following my review of the record, I find that the facts, as supported by the record, are as follows: On January 14, 1997, appellant was stopped by an Ohio State Highway Patrolman for speeding on the interstate and failing to stop at a stop sign upon exiting the interstate. Noting signs of intoxication in appellant's behavior and appearance, the trooper administered field sobriety tests to appellant, all of which indicated that he was intoxicated. Appellant was arrested, and was taken to the Shelby County Sheriff's Department for administration of a breath test. The breath test indicated that appellant's breath-alcohol concentration was .19 grams of alcohol per two hundred ten liters of breath. Appellant was then given citations for DUI and the stop sign violation. He was given a warning for the speed violation and was released to the custody of friends. At the time of his arrest, appellant was also issued a ninety-day administrative license suspension ("ALS"), pursuant to R.C. 4511.191(F)(1).
On January 21, one week after his arrest, the trial court granted appellant's request for partial driving privileges during the pendency of his case. On March 18, 1997, appellant filed a motion to dismiss the pending charges against him. As support for this motion, appellant argued that prosecution would violate the constitutional prohibition against double jeopardy because he had sent the Bureau of Motor Vehicles ("BMV") a reinstatement fee of $250 "as a result of the administrative license suspension the arresting officer imposed upon [him]." As proof of this ground, appellant attached to his motion a copy of a form sent from the BMV, dated February 28, 1997 (forty-four days after imposition of the ALS), acknowledging that $250 had been received from appellant.
On April 16, after pleading no contest to the DUI charge, appellant was sentenced by the court and received a driver's license suspension of one hundred eighty days, with credit for his ALS. Along with these judgments, the court vacated the ALS.
The Supreme Court of Ohio, in State v. Gustafson (1996),76 Ohio St. 3d 425, 668 N.E.2d 435, determined that an ALS does constitute punishment, but because *Page 7 the ALS is terminated upon conviction, there is no multiple punishment for double jeopardy purposes. The court concluded:
"[A]n automatic and immediate administrative license suspension `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. At that point, continued recognition or enforcement of the ALS would result in cumulative `punishment' being imposed upon the criminal offender, which is precluded by the Double Jeopardy Clauses of the United States and Ohio Constitutions." State v. Gustafson (1996), 76 Ohio St. 3d 425, 442, 668 N.E.2d 435, 448.
Thus, the court in effect ordered trial courts to order the vacation, or termination of the ALS, consequently merging the ALS with the subsequently imposed DUI suspension. It follows, then, that if the ALS terminates, and merges with the DUI suspension, there is no need for the court to issue two separate orders for reinstatement of the license. Accordingly, a defendant should be able to redeem his license from the BMV upon paying a reinstatement fee, and satisfying the other relevant requirements, when his license is ordered reinstated upon expiration of the license suspension imposed by the trial court for the DUI conviction.
Appellant's ALS was imposed for a period of ninety days. The BMV acknowledged receipt of $250 from appellant forty-four days after his arrest for DUI. Appellant's ALS had not yet expired when he filed his motion to dismiss the charges against him on March 18, 1997. There is no evidence in the record that appellant had a right to receive his license back at the time he made the payment, or that he was eligible to apply for reinstatement of his license at that time. Furthermore, there is no evidence in the record that the fee was actually imposed upon appellant. Rather, he anticipatorily and voluntarily paid the fee before knowing what actions would be taken by the court, or even knowing if he would be granted the right to redeem his license, and before his actual prosecution occurred.
Moreover, appellant was not being deprived of his privilege to drive at the time — he had been granted temporary driving privileges by the court pending his prosecution for DUI, albeit his license had not been ordered reinstated by the court (nor had the ALS been yet vacated, which the trial court did pursuant to Gustafson, upon appellant's conviction). At the time appellant sent $250 to the BMV, he was informed that his license was still under suspension. Although appellant supports his argument withState v. Logan (1995), 75 Ohio Misc.2d 79, 663 N.E.2d 425, it is unlikely (although not clear) that Judge Rice of the Logan court meant, when stating that since the defendant had paid the $250 "punitive" *Page 8 administrative license reinstatement fee the state could not "seek further sanctions against him," that a defendant could just voluntarily send the BMV $250 and thereby avoid prosecution for the egregious behavior of driving drunk. Rather, I find that when the Gustafson court held that an ALS must be vacated when the defendant is convicted and punished for the DUI, the court was eliminating the double jeopardy problem altogether, by establishing that the defendant would, as a result of the ALS vacation, have only one license suspension and thus be required to pay only one reinstatement fee when having his license reinstated.
There is no evidence in this record that appellant was ever ordered to pay the $250. In fact, it appears from a review of the record that appellant's license was in jeopardy as a result of his poor driving record in the recent past, and that appellant voluntarily sent the BMV $250 in order to create an issue for appeal. Nor is there evidence that he was subjected to two reinstatement fees as a result of this case. Thus, appellant has not shown that he has been or will be punished twice for the same offense. Pursuant to Gustafson, appellant's license suspensions were merged by the court's vacating the ALS and giving him full credit for the entire ALS when sentence was imposed for the DUI offense. Therefore, on this record, appellant was punished only once, and there is no double jeopardy issue. Appellant has invited an error, of his own making, in an attempt to avoid punishment for his violation of R.C. 4511.19.
I would overrule the assignment of error and affirm appellant's conviction based upon the foregoing discussion. We should refrain from deciding the constitutional issue. "Constitutional questions will not be decided until the necessity for their decision arises." A disposition of this case may be made without addressing the double jeopardy issue concocted herein. Brunswick City School Dist. Bd. of Edn. v.Brunswick Edn. Assn. (1980), 61 Ohio St. 2d 290, 297,401 N.E.2d 440, 445. *Page 9