State v. Gustafson

[This opinion has been published in Ohio Official Reports at 

76 Ohio St.3d 425

.]




           THE STATE OF OHIO, APPELLANT, v. GUSTAFSON, APPELLEE.
         THE STATE OF OHIO, APPELLEE, v. MILLER ET AL., APPELLANTS.
                     [Cite as State v. Gustafson, 

1996-Ohio-299

.]
Motor vehicles—Driving while intoxicated—License suspended administratively,
        pursuant to R.C. 4511.191, subsequent to arrest for violation of R.C.
        4511.19—Subsequent prosecution of criminal drunk driving not precluded
        by Double Jepardy Clauses of Ohio and United States Constitutions.
         The Double Jeopardy Clauses of the Fifth Amendment to the United States
1. Constitution and Section 10, Article I of the Ohio Constitution do not preclude
        criminal prosecution and trial of motorists for driving in violation of R.C.
        4511.19 based upon, and subsequent to, the imposition of an administrative
        license suspension pursuant to R.C. 4511.191.
2. An administrative license suspension imposed pursuant to R.C. 4511.191, and a
        criminal driving-under-the-influence prosecution for violation of R.C.
        4511.19, arising out of the same arrest, constitute separate proceedings for
        double jeopardy purposes.
3. For purposes of determining the protection afforded by the Double Jeopardy
        Clauses of the United States and Ohio Constitutions, an administrative license
        suspension imposed pursuant to R.C. 4511.191 ceases to be remedial and
        becomes punitive in nature to the extent the suspension continues subsequent
        to adjudication and sentencing for violation of R.C. 4511.19.
4. Because an administrative license suspension loses its remedial character upon
        judicial adjudication and sentencing for violation of R.C. 4511.19, the Double
        Jeopardy Clauses of the United States and Ohio Constitutions preclude
        continued recognition of an administrative license suspension following
        judicial imposition of criminal penalties for driving while under the influence
        of intoxicating drugs, including alcohol.
5. A court has judicial power pursuant to Sections 1 and 4, Article IV of the Ohio
        Constitution to order the termination of an administrative license suspension
        at the time of criminal sentencing for violation of R.C. 4511.19, in that
        continued recognition of the administrative license suspension would result in
        an unconstitutional application of R.C. 4511.191 to the criminal offender.
(Nos. 95-1377 and 95-1466—Submitted February 7, 1996—Decided July 30, 1996.)
CERTIFIED by and APPEAL from the Court of Appeals for Mahoning County, No. 94
                                       C.A. 232.
 (Nos. 95-1271, 95-1303, 95-1304, 95-1305 and 95-1307—Submitted February 7,
                                1996—Decided 1996.).
 APPEALS from the Court of Appeals for Auglaize County, Nos. 2-94-32, 2-95-3, 2-
                                 95-6, 2-95-4, 2-95-7.
                                __________________
        {¶ 1} Before the court are consolidated causes presenting issues concerning
application of the Double Jeopardy Clauses of the Fifth Amendment to the United
States Constitution and Article I, Section 10 of the Ohio Constitution to proceedings
instituted following the arrest of drivers for alleged violation of Ohio's criminal drunk
driving law, R.C. 4511.19. A summary of the facts of these causes follows:
        {¶ 2} Case No. 95-1377. At 12:15 a.m. on November 27, 1993, Robert D.
Gustafson Jr. was arrested and charged with a speeding violation and violations of
R.C. 4511.19(A)(1) and (3), which prohibits the driving of vehicles upon Ohio's public
highways while under the influence of intoxicating substances, including alcohol
("DUI"). The DUI charge was Gustafson's first alcohol- or drug-related driving
offense during the preceding five-year period.
        {¶ 3} Gustafson consented to a breath-alcohol test, and tested above statutory
DUI limits at .115. Pursuant to R.C. 4511.191, the arresting officer immediately
seized Gustafson's driver’s license, and processed the necessary report to complete the
administrative license suspension ("ALS") of Gustafson's license. By law, the
duration of Gustafson's ALS, as a first offender who had failed a breath-alcohol test
at the time of arrest, was ninety days. R.C. 4511.191(F)(1). At his arraignment on
November 30, 1993, Gustafson waived the right to appeal the ALS provided him by
R.C. 4511.191(H)(I). Gustafson further waived application of Ohio's speedy trial
statutes to his criminal charges.
        {¶ 4} Although the ninety-day ALS period presumably expired at the end of
February 1994, the record before us fails to disclose whether Gustafson subsequently
secured his license, and if so, when. Nevertheless, on October 14, 1994 Gustafson
filed a motion to dismiss the criminal DUI charge which remained, claiming that
continued prosecution of that criminal charge would violate his constitutional right
pursuant to the Eighth Amendment to be free from twice being placed in jeopardy.
The trial court granted the motion. The Seventh District Court of Appeals affirmed
dismissal of the criminal DUI charge on double jeopardy grounds.
        {¶ 5} Case No. 95-1271. At 1:08 a.m. on March 26, 1994, Fred W. Miller, Sr.
was arrested and issued three traffic tickets. Miller was charged with a speeding
violation, a violation of R.C. 4511.19(A)(1) (DUI), and violation of R.C.
4511.19(A)(3) (driving with a prohibited level of alcohol as measured by breath).
Miller consented to a breath-alcohol test, and tested at .166. Miller had twice before
during the preceding five-year period been convicted of a DUI offense. The arresting
officer imposed an ALS pursuant to R.C. 4511.191, and seized Miller's license. By
law, the duration of Miller's ALS, as a third-time offender who had failed a breath-
alcohol test at the time of arrest, was two years, i.e., until March 25, 1996. R.C.
4511.191(F)(3).
        {¶ 6} At his arraignment on March 31, 1994, Miller appealed the ALS
pursuant to R.C. 4511.191(H)(1). On April 1, 1994, Miller requested continuance of
the ALS hearing.
        {¶ 7} On July 14, 1994, Miller entered a plea of no contest to the charge of
violation of R.C. 4511.19(A)(3), and a judgment of conviction was entered on that
charge. The speeding charge and the R.C. 4511.19(A)(1) DUI charge were dismissed.
        {¶ 8} On September 13, 1994 Miller filed a motion seeking to reverse the
judgment of conviction and to bar the imposition of criminal penalties, claiming
further sentencing would violate double jeopardy principles. The trial court overruled
the motion.
        {¶ 9} Miller was thereafter sentenced to one year in jail and a fine of $500.
The court ordered all but thirty days of the jail sentence to be suspended conditioned
on compliance with imposed terms of probation. In addition, Miller's vehicle was
ordered immobilized for one hundred eighty days retroactive to the date of arrest. The
ALS was ordered terminated, and, in consequence of his conviction, the court ordered
Miller's license suspended for ten years, retroactive to the date of arrest, as authorized
by R.C. 4507.16.
        {¶ 10} The Third District Court of Appeals affirmed the conviction and
sentence imposed by the trial court.
        {¶ 11} Case No. 95-1303. At 12:45 a.m. on September 10, 1994, Michael T.
Smith was arrested and issued three traffic tickets. Smith was charged with a violation
of R.C. 4511.19(A)(1) (DUI), violation of R.C. 4511.19(A)(3) (driving with a
prohibited level of breath-alcohol), and violation of R.C. 4511.19(A)(4) (driving with
a prohibited level of urine-alcohol). Smith's breath-alcohol test registered .146. The
DUI charge was Smith's first offense within the preceding five-year period. The
arresting officer imposed an ALS pursuant to R.C. 4511.191, and seized Smith's
license. By law, the duration of Smith's ALS, as a first offender who had failed a
breath-alcohol test at the time of arrest, was ninety days. R.C. 4511.191(F)(1).
        {¶ 12} At his arraignment Smith appealed the ALS.             Thereafter, Smith
requested continuance of the ALS hearing. Smith was granted limited driving
privileges enabling him to drive to and from work and for household needs.
        {¶ 13} On January 18, 1995, defendant moved to dismiss the criminal DUI
charges pending against him on double jeopardy grounds. Upon denial of his motion,
Smith entered a plea of no contest to the charge of violation of R.C. 4511.19(A)(3),
and a judgment of conviction was entered on that charge. The remaining charges were
dismissed.
        {¶ 14} Smith was sentenced to three days in jail and a fine of $500. The court
ordered the jail sentence and $300 of the fine to be suspended conditioned on
compliance with imposed terms of probation. The ALS was ordered terminated, but
the court, pursuant to R.C. 4507.16, ordered Smith's driver's license suspended for six
months retroactive to the date of arrest. Work and household-need -driving privileges
were continued.
        {¶ 15} The Third District Court of Appeals affirmed the conviction and
sentence imposed by the trial court.
        {¶ 16} Case No. 95-1304. On May 3, 1994, James L. Brown was arrested and
issued two traffic tickets. Brown was charged with violations of R.C. 4511.19(A)(1)
(DUI) and 4511.19(A)(3) (driving with a prohibited level of breath alcohol). Brown's
breath-alcohol tests registered .186. The DUI charge was Brown's third offense within
the preceding five-year period. The arresting officer seized Brown’s license pursuant
to R.C. 4511.191. By law, the duration of Brown's ALS, as a third-time offender who
had failed a breath-alcohol test at the time of arrest, was two years, i.e., until May 2,
1996. R.C. 4511.191(F)(3).
        {¶ 17} Brown appealed the ALS, and requested a continuance of the ALS
hearing.
        {¶ 18} Brown filed a motion to dismiss the criminal DUI charges pending
against him on double jeopardy grounds, which was denied. Upon denial of his
motion, Brown entered a plea of no contest to the charge of violation of R.C.
4511.19(A)(3), and a judgment of conviction was entered on that charge. The
remaining charge was dismissed.
        {¶ 19} Brown was sentenced to one year in jail and a fine of $500. His driver's
license was judicially suspended for ten years, retroactive to the date of arrest. His
vehicle was ordered immobilized for six months, retroactive to the date of arrest. The
ALS was ordered terminated. Matters of probation were taken under advisement.
        {¶ 20} The Third District Court of Appeals affirmed the conviction and
sentence imposed by the trial court.
        {¶ 21} Case No. 95-1305. On June 17, 1994, Kenneth L. Roth was arrested
and issued two traffic tickets. Roth was charged with violations of R.C. 4511.19(A)(1)
(DUI) and 4511.19(A)(2) (driving with a prohibited level of blood alcohol). It appears
Roth refused to take a chemical breath test of his breath. The arresting officer imposed
an ALS pursuant to R.C. 4511.191, and seized Roth's license.
        {¶ 22} The DUI charge was Roth's third DUI-related offense within the
preceding five-year period. The record does not show, however, whether Roth had
refused chemical testing in connection with his previous convictions. By law, the
duration of Roth's ALS, had he in fact refused on two prior occasions to take a
chemical test at the time of the DUI arrest, would be three years, i.e., until June 16,
1997. R.C. 4511.191(E)(1)(c). If, however, his prior DUI offenses had not been
associated with chemical- test refusals, the duration of his ALS, by law, would be one
year. R.C. 4511.191(E)(1)(a). In addition, Roth's vehicle was impounded by the
arresting officer.
        {¶ 23} Roth appealed the ALS, and sought a continuance of the ALS hearing.
In addition, Roth filed a motion to dismiss the criminal DUI charges pending against
him on double jeopardy grounds. Upon denial of his motion, Roth entered a plea of
no contest to the charge of violation of R.C. 4511.19(A)(1), and a judgment of
conviction was entered on that charge. The remaining charge was dismissed.
        {¶ 24} Roth was sentenced to one year in jail and a fine of $1,000. His driver's
license was judicially suspended for ten years, retroactive to the date of arrest, as
authorized by R.C. 4507.16. His vehicle was ordered immobilized for six months,
retroactive to the date of arrest. The court ordered termination of the ALS, which had
been imposed based on Roth's refusal to take a chemical test. Matters of probation
were taken under advisement.
       {¶ 25} The Third District Court of Appeals affirmed the conviction and
sentence imposed by the trial court.
       {¶ 26} Case No. 95-1307. On September 4, 1994, Sally A. Bayman was
arrested and charged with violations of R.C. 4511.19(A)(I) (DUI) and 4507.02(D)(2)
(driving while under a previously imposed license suspension). Bayman refused to
take a chemical test of her breath. The DUI charge was Bayman's third offense within
the preceding five-year period. Her vehicle was impounded by the arresting officer.
The arresting officer imposed an ALS pursuant to R.C. 4511.191, and seized
Bayman’s license. Depending on whether her prior DUI offenses had been associated
with a chemical-test refusal, the ALS would have been for either one year or three
years. R.C. 4511.191(E)(1)(a); 4511.191(E)(1)(c).
       {¶ 27} At her arraignment Bayman appealed the ALS.             Later, Bayman
requested a continuance of the ALS hearing. Thereafter, Bayman filed a motion to
dismiss the criminal DUI charges pending against her on double jeopardy grounds,
which was denied. Upon denial of her motion, Bayman entered a plea of no contest
to both charges, and judgments of conviction were entered.
       {¶ 28} For the DUI violation, Bayman was sentenced one year in jail and a
fine of $500. Her vehicle was ordered immobilized for six months, retroactive to the
date of arrest. The court ordered all but fifteen days of the jail sentence to be
suspended, conditioned on compliance with imposed terms of probation. For driving
while under a previous OMVI license suspension, Bayman was sentenced to six
months in jail, concurrent with the jail sentence imposed for the DUI violation, and an
additional $250 fine. The court further order Bayman's driver's license suspended for
ten years, retroactive to the date of arrest, as authorized by R.C. 4507.16. The court
issued no further order purporting to affect the ALS.
        {¶ 29} The Third District Court of Appeals affirmed the conviction and
sentence imposed by the trial court.
        {¶ 30} The above causes are now before this court on consolidated appeals as
of right. In addition, the Seventh District Court of Appeals found its judgment in
Gustafson to conflict with the decision in the Miller case, and entered an order
certifying a conflict. That cause is now also before this court upon our determination
that a conflict exists (case No. 95-1377).
                                __________________
        James A. Philomena, Mahoning County Prosecuting Attorney, Michele G.
Cerni, Assistant Prosecuting Attorney; Betty D. Montgomery, Attorney General,
Jeffrey S. Sutton, State Solicitor, Susan E. Ashbrook and Andrew S. Bergman,
Assistant Attorneys General, for appellant in case Nos. 95-1377 and 95-1466.
        Newman, Olson & Kerr and Martin S. Delahunty III, for appellee in case Nos.
95-1377 and 95-1466.
        W. Andrew Hasselbach, urging affirmance for amicus curiae,              Ohio
Association of Criminal Defense Lawyers, in case Nos. 95-1377 and 95-1466.
        Henry M. Jasny, pro hac vice, urging reversal for amici curiae, Advocates for
Highway and Auto Safety, and Mothers Against Drunk Driving, National
Headquarters, in case Nos. 95-1377 and 95-1466.
        Baker & Hostetler and Richard W. Siehl, urging reversal for amicus curiae,
Mothers Against Drunk Driving, State of Ohio, in case Nos. 95-1377 and 95-1466.
        Baker & Hostetler and William W. Falsgraf, urging reversal for amicus curiae,
American Alliance for Rights and Responsibilities, in case Nos. 95-1377 and 95-1466.
        Michele McDowell Fields, pro hac vice, urging reversal for amicus curiae,
Insurance Institute for Highway Safety, in case Nos. 95-1377 and 95-1466.
        Wilson Law, Eric J. Wilson and Gregory Wilson, for appellants in case Nos.
95-1271, 95-1303, 95-1304, 95-1305 and 95-1307.
         Garrett T. Gall, Auglaize County Prosecuting Attorney, and David M. Busick,
Assistant Prosecuting Attorney; Betty D. Montgomery, Attorney General, Jeffrey S.
Sutton and Susan E. Ashbrook, Assistant Attorneys General, for appellee in case Nos.
95-1271, 95-1303, 95-1304, 95-1305, and 95-1307.
                                      __________________
         MOYER, C.J.
         {¶ 31} Before this court stand six Ohio drivers whose licenses were suspended
administratively, pursuant to R.C. 4511.191, subsequent to arrest for violation of R.C.
4511.19. The legal issue presented by their appeals is whether the administrative
suspension of their licenses under R.C. 4511.191 precludes subsequent prosecution of
criminal drunk driving charges pursuant to the Double Jeopardy Clauses of the Ohio
and United States Constitutions. Of these six drivers, four (Gustafson, Miller, Brown
and Smith) submitted to chemical tests upon the request of the arresting officer, while
two (Roth and Bayman) refused to take such a test.
         {¶ 32} We begin our analysis by setting forth a simplified statement of the
procedures now governing administrative license suspensions in Ohio. In 1993 the
Ohio General Assembly enacted comprehensive legislation1 designed to combat the
devastating problems associated with drunk driving on Ohio highways. Included in
the legislation were revisions to Ohio’s implied consent statute, R.C. 4511.191,
authorizing, for the first time, immediate "on-the-spot" suspensions of driving
privileges at the time of a DUI arrest. R.C. 4511.191(D). Acting "[o]n behalf of the
registrar” of the bureau of motor vehicles (“BMV”), an arresting officer now is
required to implement an administrative license suspension as to a motorist who either
(1) refuses, upon the officer's request, to submit to a chemical test to determine blood,
breath or urine alcohol content, or (2) takes the test, but "fails" it, i.e., registers a blood-


1. See 144 Ohio Laws, Part I, 1566 (effective Sept. 1, 1993); 145 Ohio Laws Part I, 479 (effective Sept.
1, 1993).
, breath- or urine-alcohol content exceeding statutory limits. 

Id.

 Duration of the ALS
is established by R.C. 4511.191(E) and (F), and ranges from ninety days (imposed
upon a first offender who "fails" a chemical test) to five years (imposed upon an
arrestee who refuses testing, and has refused chemical testing on three or more prior
occasions in the preceding five years).
        {¶ 33} A driver may appeal the administrative license suspension at an initial
appearance before the criminal court hearing the DUI charge, which, unless continued,
occurs within five days of arrest. R.C. 4511.191(G). Appeal of an ALS does not,
however, stay or otherwise affect the running of the suspension. R.C. 4511.191(H).
        {¶ 34} Following the prescribed term of the suspension, the driver may
request the BMV to return or reissue the suspended license, which the BMV must do
upon payment of a $250 reinstatement fee and proof of compliance with Ohio’s
financial responsibility requirements. R.C. 4511.191(L).
                                            I
                              Double Jeopardy Analysis
        {¶ 35} The Double Jeopardy Clause of the Fifth Amendment to the United
States Constitution provides that "[n]o person shall *** be subject for the same offense
to be twice put in jeopardy of life or limb," and is applicable to the states through the
Fourteenth Amendment. Benton v. Maryland (1969), 

395 U.S. 784

, 

89 S.Ct. 2056

,

23 L.Ed.2d 707

; State v. Tolbert (1991), 

60 Ohio St.3d 89, 90

, 

573 N.E.2d 617, 619

.
Similarly, Section 10, Article I of the Ohio Constitution provides that “[n]o person
shall be twice put in jeopardy for the same offense.” Ohio courts have historically
treated the protections afforded by the Double Jeopardy Clauses of the Ohio
Constitution and the United States Constitution as coextensive. See State v. Konicek
(1984) 

16 Ohio App.3d 17, 17-18

, 16 OBR 18, 18-19, 

474 N.E.2d 363, 364

; State v.
Moss (1982), 

69 Ohio St. 2d 515, 517

, 

23 O.O.3d 447

, 448, 

433 N.E.2d 181, 184

;
State v. Royster (1982), 

3 Ohio App. 3d 442, 443

, 3 OBR 521, 522, 

446 N.E.2d 190, 192

. We therefore proceed based on the premise that the Double Jeopardy Clause of
each Constitution prohibits (1) a second prosecution for the same offense after
acquittal, (2) a second prosecution for the same offense after conviction, and (3)
multiple punishments for the same offense. United States v. Halper (1989), 

490 U.S. 435, 440

, 

109 S.Ct. 1892

, 1897 

104 L.Ed.2d 487, 496

, citing North Carolina v. Pearce
(1969), 

395 U.S. 711, 717

, 

89 S.Ct. 2072, 2076

, 

23 L.Ed.2d 656, 644-665

.
        {¶ 36} Prior to the decisions of the United States Supreme Court in Halper,
courts uniformly accepted the principle that sanctions imposed pursuant to "civil" or
"administrative" proceedings did not trigger the Double Jeopardy Clause so as to
preclude either subsequent criminal prosecutions or criminal punishments. Helvering
v. Mitchell (1938), 

303 U.S. 391

, 

82 L. Ed. 917

, 

58 S. Ct. 630

, 

82 L.Ed. 917

; United
States v. Ward (1980), 

448 U.S. 242, 248

, 

100 S. Ct. 2636, 2641

, 

65 L.Ed.2d 742, 749

.
In Halper, however, the court recognized that a line could be crossed at which civil
damage recoveries could become "punishments" for double jeopardy purposes.
        {¶ 37} In Halper, the manager of a medical laboratory Medicaid provider was
indicted, convicted, and sentenced on sixty-five criminal fraud counts. Subsequently,
the federal government brought suit pursuant to the False Claims Act (Sections 3729-
2731, Title 31, U.S. Code), claiming it was entitled to judgment for more than
$130,000 in "civil penalties," that sum representing the statutorily established
maximum penalty of $2,000 on each of the sixty-five counts. The government's actual
losses, however, totaled only $580, plus the costs of investigating and prosecuting the
case.
        {¶ 38} The Halper court recognized that both criminal and civil proceedings
may advance punitive as well as remedial goals, and held that "in determining whether
a particular civil sanction constitutes criminal punishment, it is the purposes actually
served by the sanction in question, not the underlying nature of the proceeding giving
rise to the sanction, that must be evaluated." Id. at 447, 

109 S.Ct. at 1901

, 

104 L.Ed.2d at 501, fn. 7

. The court cited Kennedy v. Mendoza-Martinez (1963), 

372 U.S. 144, 168

, 

83 S.Ct. 554, 567

, 

9 L.Ed.2d 644, 660-661

, in recognizing that a sanction
appearing excessive in relation to its nonpunitive purpose might well be deemed
"punishment." This implied that disproportionality between the magnitude of the
sanction and the harm caused by the underlying conduct was critical. The court
remanded the case for the trial court to determine the maximum fine which could be
imposed consistent with a remedial, rather than punitive, purpose, holding that "under
the Double Jeopardy Clause a defendant who already has been punished in a criminal
prosecution may not be subjected to an additional civil sanction to the extent that the
second sanction may not fairly be characterized as remedial, but only as a deterrent
or retribution." (Emphasis added.) Id. at 448-449, 

109 S.Ct. at 1902

, 

104 L.Ed.2d at 502

. While recognizing that the trial court's inquiry on remand would “not be an exact
pursuit," the court left it to the lower court to determine "the size of the civil sanction
the Government may receive without crossing the line between remedy and
punishment." 

Id. at 449-450

, 

109 S.Ct. at 1902

, 

104 L.Ed.2d at 502-503

.
        {¶ 39} More recently, the United States Supreme Court again considered the
issue of "criminal punishment" vis-a-vis "civil sanction" in Austin v. United States
(1993), 

509 U.S. 602

, 

113 S.Ct. 2801

, 

125 L.Ed.2d 488

. Austin did not involve alleged
violation of the Double Jeopardy Clause, but rather presented a challenge to drug-
related forfeitures of property based on the Excessive Fines Clause of the Eighth
Amendment to the United States Constitution. Nevertheless, the court found its prior
analysis in Halper to be helpful in determining whether the forfeiture of property
constituted "punishment" for purposes of the Excessive Fines Clause. The Austin
court concluded that forfeiture proceedings "historically have been understood, at
least in part, as punishment," 

id.

 at ____, 

113 S.Ct. at 2810

, 

125 L.Ed.2d at 503

, and
that forfeitures constituted fines, i.e., "‘payment to a sovereign as punishment for some
offense,’" 

id.

 at ___, 

113 S.Ct. at 2812

, 

125 L.Ed.2d at 505

. The case was remanded
to the trial court for determination of whether the forfeiture at issue was excessive in
relation to the offense committed, or, alternatively, represented a fine which fell within
constitutional, nonexcessive, limits. 

Id.

         {¶ 40} In Dept. of Revenue of Montana v. Kurth Ranch (1994), 511
U.S._____, 114 S.Ct.1937, 

128 L.Ed.2d 767

, the court again, as in Halper, was called
upon to determine whether a particular sanction constituted a "punishment" for
purposes of the Double Jeopardy Clause so as to preclude subsequent imposition of
additional “punishment.” At issue in Kurth Ranch was a Montana tax assessed on the
possession and storage of dangerous drugs. Members of the Kurth family were
convicted of criminal drug law violations and sentenced to prison terms. The state of
Montana then separately assessed a tax of nearly $900,000 on the Kurth family, and
thereafter pursued its claim in federal bankruptcy proceedings. The United States
Supreme Court affirmed lower court findings denying recognition of Montana’s
claim, noting that "‘there comes a time in the extension of the penalizing features of
the so-called tax when it loses its character as such and becomes a mere penalty with
the characteristics of regulation and punishment.’" 

Id.,

511 U.S. at ___

, 

114 S.Ct. at 1946

, 

128 L.Ed.2d at 778

. It therefore held that collection from the Kurths of the
assessed tax of nearly $900,000 was precluded as violative of the Double Jeopardy
Clause’s prohibition against imposition of successive punishments in separate
proceedings.
         {¶ 41} To summarize the holdings of the Halper-Austin-Kurth Ranch trilogy,
in Halper the Supreme Court held that "civil" damage assessments can cross a line
beyond which the assessments become nonremedial and a punishment for double
jeopardy purposes; in Austin the court held that "civil" forfeitures can cross a line
beyond which that sanction becomes nonremedial and a punishment for Eighth
Amendment purposes; and in Kurth Ranch the court held that "civil" taxes can cross
a line beyond which they lose their character as true taxes and become a punishment
for double jeopardy purposes.2



2. Subsequent to oral argument and submission of these causes for our determination, the United States
Supreme Court decided United States v. Ursery (1996), 518 U.S.___, 

116 S.Ct. 2135

, 

135 L.Ed. 2d 249

,
         {¶ 42} We proceed in accordance with established double jeopardy principles
to analyze Ohio’s statutory administrative license suspension framework to determine
(1) whether an administrative license suspension and a criminal DUI prosecution
constitute “multiple prosecutions,” (2) whether an ALS and a criminal prosecution for
driving under the influence of intoxicants constitute separate proceedings based on the
same conduct, and (3) whether “multiple punishments” are imposed where judicial
sentencing following conviction of driving while under the influence as well as a
statutory license suspension are imposed.
                                                   A
                                "Multiple Prosecution" Analysis
         {¶ 43} “The risk to which the [Double Jeopardy] Clause refers is not present
in proceedings that are not ‘essentially criminal.’" Breed v. Jones (1975), 

421 U.S. 519, 528

, 

95 S. Ct. 1779, 1785

, 

44 L.Ed.2d 346, 354-355

. Nor does the Double
Jeopardy Clause preclude criminal prosecution based on the fact that civil
administrative proceedings based on the same conduct have previously been initiated.

Helvering, supra;

Ward, supra;

 United States v. One Assortment of 89 Firearms

64 U.S.L.W. 4565

, 

1996 WL 340815

. In Ursery, the court discussed Halper and its progeny, 

Austin, supra,

 and Kurth 

Ranch, supra.

          In Ursery, eight members of the court agreed that, prior to Halper, statutory civil in rem
forfeitures had not been deemed to implicate Double Jeopardy Clause protection, such forfeitures
having historically been characterized as “remedial civil sanction[s], distinct from potentially punitive
in personam civil penalties such as fines.” 

Id.

 at ____, 

116 S.Ct. at 2142

, 

135 L.Ed.2d at 562

. The
Ursery court rejected the contention that forfeiture to the government of property used in connection
with criminal activities necessarily constitutes a punishment of the former owner for Double Jeopardy
Clause purposes. Although the court recognized that civil forfeitures are not per se exempt from the
scope of the Double Jeopardy Clause, 

id.,

 at 

116 S.Ct. at 2148

, 

135 L.Ed.2d at 569, fn. 3

, it nevertheless
held that the civil forfeitures in the cases before it did not constitute punishments for double jeopardy
purposes. 

Id.

          Ursery does not control disposition of the causes before us, which do not involve in rem civil
forfeitures, but rather administrative suspensions of drivers’ licenses. It remains to be seen whether
the United States Supreme Court will, in future cases, confine application of Ursery solely to civil in
rem forfeiture proceedings, or may, conversely, apply it more broadly, thereby minimizing the
importance of Halper and its progeny as precedent. In either event, we deem our resolution of the
causes before us to be independently supported by the Double Jeopardy Clause of the Ohio Constitution.
(1984), 

465 U.S. 354, 359

, 

104 S. Ct. 1099, 1103

, 

79 L.Ed.2d 361, 366

; Dept. of
Natural Resources v. Prescott, (1989), 

42 Ohio St.3d 65, 68

, 

537 N.E.2d 204, 207

.
See, also, State v. Casalicchio (1991), 

58 Ohio St.3d 178

, 

569 N.E.2d 916

; 3 LaFave
& Israel, Criminal Procedure, (1984), 61-62, Section 24.1(b).
        {¶ 44} Jeopardy attaches, so as to preclude subsequent criminal proceedings,
at different points in time depending on the nature of the proceeding in question.
Where a criminal defendant has invoked the right to trial by jury, jeopardy does not
attach so as to preclude subsequent criminal proceedings until the jury is impaneled
and sworn. Crist v. Bretz (1978), 

437 U.S. 28

, 

57 L. Ed. 2d 24

, 

98 S. Ct. 2156

, 

57 L.Ed.2d 24

. Similarly, jeopardy does not attach in a criminal bench trial until the court
begins to hear evidence. Serfass v. United States (1975), 

420 U.S. 377

, 

95 S. Ct. 1055

,

43 L.Ed.2d 265

. In other situations, jeopardy based on having undergone an initial
criminal trial attaches after acquittal or conviction. Brown v. Ohio (1977), 

432 U.S. 161, 165

, 

97 S. Ct. 2221, 2225

, 

53 L.Ed.2d 187, 194

.
        {¶ 45} In sum, insofar as the Double Jeopardy Clause precludes successive
criminal prosecutions, the proscription is against a second criminal trial after jeopardy
has attached in a first criminal trial.
        {¶ 46} We do not read the Halper-Austin-Kurth Ranch trilogy as altering these
well-settled principles, nor do we believe that an administrative license suspension
constitutes a proceeding to which jeopardy attaches so as to preclude subsequent
criminal prosecution for drunk driving.
        {¶ 47} Criminal prosecution after an immediate ALS does not result in the
defendant being subjected to a second "trial," because he has not undergone a first
"trial.” The immediate deprivation of a driver's license through an automatic license
suspension as provided by R.C. 4511.191 is accomplished through administrative
proceedings of a summary nature conducted by the arresting law enforcement officer.
It does not result in either a "conviction" or an "acquittal,” nor can it reasonably be
construed as having subjected the motorist to the stresses, embarrassment, and
expense associated with a criminal trial. Cf. United States v. Martin Linen Supply Co.
(1977), 

430 U.S. 564, 569

, 

97 S. Ct. 1349, 1353

, 

51 L. Ed. 2d 642, 649

, quoting Green
v. United States (1957), 

355 U.S. 184, 187-188

, 

78 S. Ct. 221, 223

, 

2 L. Ed. 2d 199, 204

. The administrative suspension of one’s driver’s license is simply not the type of
proceeding to which double jeopardy protection attaches so as to preclude a
subsequent criminal prosecution. Accord State v. Toyomura (1995), 

80 Hawaii 8

,
___, 

904 P.2d 893, 901, 907-908

 (A proceeding similar in nature to an ALS appeal
"does not bar a subsequent criminal prosecution, whether the *** proceeding ‘ended
in [the motorist's] favor' or resulted in an ‘acquittal.'"); State v. Jones (1995), 

340 Md. 235, 242

, 

666 A.2d 128, 131

 ("since neither party contends that the administrative
suspension of Jones's license constituted a ‘prosecution,' the imposition of criminal
sanctions against Jones for driving while intoxicated violates the Double Jeopardy
Clause only if it constitutes a second punishment."); Taylor v. Sherrill (1991), 

169 Ariz. 335

, 

819 P.2d 921

, (civil traffic infraction proceedings did not bar subsequent
criminal prosecution); Purcell v. United States (D.C. App. 1991), 

594 A.2d 527

. See,
also, LaFave & Israel, supra, at Section 24.1(b).
        {¶ 48} We agree with the analyses and conclusions of those courts. Double
jeopardy prohibitions do not preclude the state from trying a defendant criminally for
violation of R.C. 4511.19 after an administrative license suspension imposed pursuant
to R.C. 4511.191. The state retains its right to seek criminal conviction through
criminal prosecution.
        {¶ 49} Our conclusion is supported by the United States Supreme Court’s
ultimate disposition of Halper. Although recognizing that prior criminal actions had
resulted in convictions, the Halper court found no fault with the initiation of
subsequent civil proceedings or with the imposition of both civil and criminal
sanctions. Rather, the court remanded the cause for further proceedings to assess a
civil sanction which did not "cross the line" to punishment. Similarly, in Austin, the
court acknowledged the legitimacy of civil forfeiture proceedings brought subsequent
to a prior criminal conviction obtained in state court, and remanded the case for lower
court analysis as to whether punitive fines imposed in the civil proceedings were
excessive, thereby violating the Excessive Fines Clause of the Eighth Amendment.
Halper and its progeny are instructive not regarding the prohibition of the Double
Jeopardy Clause against multiple prosecutions, but rather as to its prohibition against
multiple punishments. As one commentator has noted:
       "[U]nder the Supreme Court's holding in Halper, the government is entitled to
convict and punish an individual in a criminal prosecution and also impose a penalty
upon her in a separate civil proceeding, even though both sanctions are based upon
the same conduct. *** [I]f a civil penalty that constitutes ‘punishment' for double
jeopardy purposes is held to bar the government from subsequently prosecuting the
individual criminally for the same conduct, the government will be deprived of the
opportunity to obtain a criminal conviction and to impose the full range of permissible
sanctions, both criminal and civil, upon the individual. Such a result appears to be
inconsistent with Halper." Rudstein, Civil Penalties and Multiple Punishment Under
the Double Jeopardy Clause: Some Unanswered Questions (1993), 46 Okla.L.Rev.
587, 602-603.
       {¶ 50} We therefore hold that, where an administrative license suspension
occurs at the time of arrest, subsequent motions to dismiss criminal DUI proceedings
based on double jeopardy principles should be overruled. The Double Jeopardy
Clauses of the Fifth Amendment to the United States Constitution and Section 10,
Article I, of the Ohio Constitution do not preclude criminal prosecution and trial of
motorists for driving in violation of R.C. 4511.19 based upon, and subsequent to, the
imposition of an administrative license suspension pursuant to R.C. 4511.191.
                                          B
                          "Separate Proceedings" Analysis
       {¶ 51} The Double Jeopardy Clause affords protection not only from multiple
prosecutions, but also from imposition of multiple punishments in separate and
successive proceedings.     If pursued in a single proceeding, however, multiple
punishment may constitutionally be imposed, and the state may obtain the full range
of both civil and criminal penalties. Kurth Ranch, 

511 U.S. at ___

, 

114 S.Ct. at 1945

,

128 L.Ed.2d at 778

; Halper, 

490 U.S. at 450

, 

109 S.Ct. at 1903

, 

104 L.Ed.2d at 503

.
The state argues that the double jeopardy arguments made by the motorists before us
should be resolved against them in that an ALS and a criminal prosecution occur in
the same, rather than separate, proceedings. The state contends that it is irrelevant
whether an ALS constitutes “punishment,” as subsequent criminal punishment could
nevertheless be imposed, because it is imposed in the same proceeding. We do not
agree.
         {¶ 52} By the express terms of R.C. 4511.191, an immediate and automatic
license suspension is accomplished through “administrative proceedings” of a
summary nature, i.e., the arresting officer, acting as the agent of the BMV, demands
and confiscates the license "on the spot." These proceedings are not conducted in the
criminal court which thereafter determines matters of criminal guilt or innocence of
the DUI charge. Rather, these proceedings are conducted initially by an arresting
officer at public roadsides or in police stations, and processed thereafter not in any
judicial forum, but within the bureaucracy of the BMV. They are intended to remove
from the highway those motorists who are a threat to themselves and to others, as
determined by their refusal to expose themselves to a test for alcohol content, or as
indicated by their tested alcohol level. By law, the suspension of the driver's license
becomes an administrative fait accompli at the time the license is physically seized by
the officer.
         {¶ 53} The fact that the General Assembly has provided an opportunity for a
post-suspension administrative appeal of the ALS in the court in which the DUI
charges are filed does not change this conclusion. Although the administrative appeal
of the ALS may (but need not) be presided over by the same judicial officer as presides
over the criminal DUI case, that circumstance does not consolidate the administrative
license suspension and the DUI prosecution into the "same proceeding" for double
jeopardy purposes.
       {¶ 54} Both the Third and the Seventh District Courts of Appeals held in the
causes sub judice that the ALS and the criminal proceedings take place separately for
double jeopardy purposes. We concur in their analyses of this issue. We hold that an
ALS imposed pursuant to R.C. 4511.191, and a criminal DUI prosecution for violation
of R.C. 4511.19 arising out of the same arrest constitute separate proceedings for
double jeopardy purposes.
                                           C
                             "Multiple Punishment" Analysis
       {¶ 55} Because we hold (1) that the state may criminally prosecute DUI
charges subsequent to an ALS, and (2) that the administrative license suspension is
imposed in proceedings separate from the criminal prosecution, the Double Jeopardy
Clause is applicable in Ohio ALS cases, if at all, based on the third prohibition
described in Halper, i.e. the prohibition against multiple punishments for the same
offense.
       {¶ 56} We first determine that an administrative license suspension, whether
based on a test failure or a test refusal, is a sanction based on the same offense or
conduct as is subsequent prosecution of a charge of violating R.C. 4511.19, i.e.,
driving while intoxicated.
       {¶ 57} We reject the argument that a refusal ALS is based on a different
offense from that at issue in a subsequent DUI prosecution alleging violation of R.C.
4511.19(A)(1). Whether a driver ultimately is charged with R.C. 4511.19 (A)(1)
(which requires proof of impairment) or 4511.19(A)(2), (3), or (4) (which require
proof of driving with blood-, breath-, or urine-alcohol content higher than allowed by
law), the conduct or offense that all administrative license suspensions and all R.C.
4511.19 prosecutions are intended to combat is drunken driving.
        {¶ 58} A person arrested for DUI may be proved guilty of criminal drunken
driving in either of two ways: he may be convicted based upon proof that his driving
had become actually impaired as demonstrated by his conduct, or he may be convicted
simply upon introduction of chemical test failures. R.C. 4511.19(A).           Where an
arrestee refuses to take a chemical test, the state's prosecution may hinge solely on the
testimony of the arresting officer or other witnesses, thereby limiting the range of
means by which the state may obtain an conviction.
        {¶ 59} However, the act of refusing a chemical test for alcohol, standing alone,
does not constitute a criminal "offense" of any kind. Ohio police officers are not
statutorily authorized to randomly demand chemical alcohol testing of Ohio drivers in
the absence of an arrest for DUI, and there is no criminal charge which can be lodged
for the act of refusing a chemical test. Nor does R.C. 4511.191 authorize imposition
of an ALS based solely on a driver's refusal to take a chemical test. Rather, the implied
consent statute authorizes a police officer to ask a driver to undergo a chemical test
for alcohol only where the officer has first determined that probable cause exists for
arrest for the offense of driving while intoxicated.
        {¶ 60} Were it the refusal itself which constituted the conduct for which an
ALS is imposed, there would be no logical justification for the statute to authorize
termination of a refusal ALS upon the entry of a guilty or not contest plea to DUI. Yet
R.C. 4511.191(K) provides for such a termination "if the offense for which the plea is
entered arose from the same incident that led to the suspension or denial," i.e., a valid,
probable cause arrest for DUI. (Emphasis added.)
        {¶ 61} In short, an R. C. 4511.191 administrative license suspension is
inextricably intertwined with, and dependent upon, an arrest for violation of Ohio’s
DUI statute, R.C. 4511.19. This conclusion results regardless of whether the ALS
was issued in connection with a test refusal, or in connection with a test failure. We
conclude that both an administrative license suspension and criminal punishments
imposed in consequence of a DUI conviction are imposed based on the same conduct
or offense,   i.e., driving while intoxicated.      See, generally, Kravitz, Ohio’s
Administrative License Suspension: A Double Jeopardy and Due Process
Analysis(1996), 29 Akron Law Review 123.
       {¶ 62} Pursuant to Halper and its progeny, we therefore must determine
whether an ALS constitutes a first "punishment" for double jeopardy purposes, so as
to preclude imposition of subsequent criminal punishment for violation of Ohio's DUI
law, or conversely, may "fairly be characterized as remedial." 

Halper, supra, at 449

,

109 S.Ct. at 1902

, 

104 L.Ed.2d at 502

.
       {¶ 63} This court has historically and repeatedly characterized driver's license
suspensions imposed pursuant to Ohio's implied consent statutes as being civil in
nature and remedial in purpose. State v. Starnes (1970), 

21 Ohio St.2d 38

, 

50 O.O.2d 84

, 

254 N.E.2d 675

; Hoban v. Rice (1971), 

25 Ohio St.2d 111

, 

54 O.O.3d 254

, 

267 N.E.2d 311

; Andrews v. Turner (1977), 

52 Ohio St.2d 31

, 

6 O.O.3d 149

, 

368 N.E.2d 1253

. Our prior law is thus consistent with that in the overwhelming majority of
states. See Luk v. Commonwealth (1995), 

421 Mass. 415, 425

, 

658 N.E.2d 664

, 671-
672, at fn. 16 (containing a lengthy compilation of recent ALS double-jeopardy cases
finding administrative license suspensions to be non-punitive and remedial in
purpose). See, also, e.g., State v. Savard (Me. 1995), 

659 A.2d 1265

; State v.
Maryland (1995), 

666 A.2d 128

, 

340 Md. 235

; State v. Talavera (1995), 

127 Idaho 700

, 

905 P.2d 633

. Similarly, the United States Supreme Court has recognized that
states possess a compelling interest in promptly removing drunken drivers from the
road in order to protect public safety. Mackey v. Montrym (1978) 

443 U.S. 1, 17-18

,

61 L.Ed.2d 321

, 

99 S.Ct. 2612, 2620-2621

, 

61 L.Ed.2d 321, 334

.
       {¶ 64} Nevertheless, we remain cognizant of the underlying theme of Halper-
Austin-Kurth Ranch that sanctions which may initially be justified as remedial can
simply go too far, to the point that they must be deemed "punishment" for double
jeopardy purposes. Our precedent, as well as that of the majority of other states,
supports the conclusion that administrative license suspensions are, at least in their
initial application, remedial in purpose and thus do not ab initio constitute
"punishment" for double jeopardy purposes. Short-term suspensions of a reasonable
duration of time may “fairly be characterized as remedial” within the double jeopardy
framework established by Halper. Such a suspension serves the remedial purpose of
providing interim protection of the public during the period of time required to obtain
full and fair adjudication of the driver’s guilt or innocence of criminal drunk driving.
        {¶ 65} However, the 1993 amendments to R.C. 4511.191 extended the
duration of administrative license suspensions in particular cases beyond the time
within which disposition of an underlying criminal DUI charge could reasonably be
expected. For example, the statute provides for an ALS to continue beyond a “not
guilty” adjudication on the criminal charge in cases where a suspension is imposed
based upon refusal to submit to a chemical test upon the request of an officer. In such
cases, "any subsequent finding that the person is not guilty of the [DUI] charge ***
does not terminate or otherwise affect the suspension."           R.C. 4511.191(H)(2).
Similarly, a motorist arrested for DUI who "fails" a chemical test, but later pleads not
guilty to the DUI charge, but who is nevertheless convicted, is not entitled to
termination of the ALS. In contrast, conviction subsequent to a guilty or no contest
plea does entitle the defendant to termination of the ALS. See R.C. 4511.191(G)(1)
read in pari materia with R.C. 4511.191(H)(2) and (K). These aspects of R.C.
4511.191 weigh in favor of a conclusion that, while the statute in its initial application
serves the goal of remediation, it may be applied so as to primarily serve goals of
punishment.
        {¶ 66} Our interpretation of Halper, Austin, and Kurth Ranch causes us to
conclude that R.C. 4511.191 may, in its application to particular cases, "cross the line"
and become excessive in relation to the legitimate nonpunitive, remedial purpose of
removing dangerous drivers from the public highways. We observe that an arrest for
DUI does not require the conclusion that continued driving by an arrestee, upon
obtaining sobriety, constitutes a threat to highway safety. Nevertheless, the General
Assembly has determined that error, if any, in the application of such a presumption
as to arrestees must be made on the side of removing potentially dangerous drivers
from the highways.         A short-term automatic administrative license suspension
legitimately serves that remedial goal. However, the need for administrative remedial
suspension ends at the point where a criminal conviction of drunk driving is obtained,
at which time a court has authority to judicially impose a license suspension in
accordance with law and the individual circumstances of the defendant before it. R.C.
4507.16.
        {¶ 67} We have reviewed numerous cases from other jurisdictions in which
defendants have challenged drunk driving prosecutions on double jeopardy grounds
subsequent to administrative license suspension. Those jurisdictions are nearly
uniform in finding the imposed suspensions before them to be “remedial” in nature,
so as to satisfy a Halper double-jeopardy analysis. However, our review does not
disclose a case in which an administrative license suspension statute imposing
sanctions as severe as R.C. 4511.191 has withstood a double-jeopardy
“punishment” analysis. Rather in the cases we have reviewed,3 the statutes under
consideration have authorized maximum suspension periods of significantly shorter
duration than does R.C. 4511.191, generally not exceeding a maximum ALS period
of one year.


3. See Leduc v. Commonwealth (1995), 

421 Mass. 433

, 

657 N.E.2d 755

, citing Mass. G.L.c. 90,
Section 24(1)(f); State v. Jones (1995), 

340 Md. 235, 240-241

, 

666 A.2d 128, 130

, citing Section
16-205.1 of the Maryland Transportation Article; State v. Talavera (1995), 

127 Idaho 700

, ___, 

905 P. 2d 633, 635

, citing I.C. Section 18-8002A; State ex rel. Schwartz v. Kennedy (1995), 

120 N.M. 619

, ___, 

904 P.2d 1044, 1055

, citing N.M.S.A. 1978, Section 66-8-111; State v. Mertz (1995), 

258 Kan. 745, 749

, 

907 P.2d 847, 851

, citing K.S.A. 1994 Supp. 8-1014; Tench v. Commonwealth
(1995), 

21 Va.App. 200

, 

462 S.E.2d 922

, citing Va. Code Section 46.2-391.2; Nebraska v. Hansen
(1996), 

249 Neb. 177, 181

, 

542 N.W.2d 424, 428

, citing Neb. R.S. Section 60-6,205(1). Cf. United
States v. Imngren (D.C. Va. 1995), 

914 F.Supp. 1326

 (imposition of one-year suspension of driving
privileges on military installation pursuant to Army Regulation 190-5 held to constitute
“punishment” for double jeopardy purposes); Murphy v. Commonwealth (D.C. Va. 1995), 

896 F.Supp. 577, 583

 (Driver who had been issued a seven-day suspension presented “a double jeopardy
claim that is colorable, if not compelling.”).
       {¶ 68} In contrast, R.C. 4511.191 authorizes administrative license
suspensions for as long as five years, while failing to provide for mandatory
rehabilitative training for offenders, and, in some circumstances, irrespective of the
ultimate determination of the driver’s guilt or innocence of the underlying criminal
DUI charge.
       {¶ 69} We conclude that an 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 the Ohio Constitutions.
       {¶ 70} Accordingly, a sentencing court has judicial power pursuant to
Sections 1 and 4, Article IV of the Ohio Constitution to order the termination of an
administrative license suspension at the time of sentencing, as continuation of the ALS
would result in unconstitutional application of R.C. 4511.191 to the criminal offender.
To "fairly be characterized as remedial" rather than punishment for double jeopardy
purposes, an ALS must terminate upon sentencing for violation of R.C. 4511.191, if
the ALS has not already expired by operation of law.
       {¶ 71} Some defendants argue that R.C. 4511.191 appears to have been
enacted, at least in part, to "make an example" of arrested drivers and to deter others
from driving while drunk. Assuming the validity of the argument, it does not follow
that every ALS imposed pursuant to R.C. 4511.191 constitutes a "punishment" for
double jeopardy purposes. In Kurth Ranch the court noted that "while a high tax rate
and deterrent purpose lend support to the characterization of the drug tax as
punishment, these features, in and of themselves do not necessarily render the tax
punitive." (Emphasis added.) Kurth Ranch, 

511 U.S. at ___

, 

114 S.Ct. at 1947

, 

128 L.Ed.2d at 779

. In addition, we concur with Justice Kennedy's admonition in Halper
that courts should not be required to conduct a "broad inquiry into the subjective
purposes that may be thought to lie behind a given judicial proceeding." 

Id.,

490 U.S. at 453

, 

109 S.Ct. at 1904

, 

104 L.Ed.2d at 504

 (Kennedy, J., concurring). As noted by
Justice Kennedy, "[s]uch an inquiry would be amorphous and speculative, and would
mire the courts in the quagmire of differentiating among the multiple purposes that
underlie every proceeding, whether it be civil or criminal in name." 

Id. at 453

, 

109 S.Ct. at 1904

, 

104 L.Ed.2d at 505

.
        {¶ 72} We therefore hold that an administrative license suspension ceases to
be remedial and becomes punitive in nature to the extent it is deemed to continue
subsequent to conviction and sentencing for violation of R.C. 4511.19. Because an
ALS loses its remedial character upon judicial adjudication of guilt and sentencing for
the DUI charge, the Double Jeopardy Clauses of the United States and Ohio
Constitutions preclude continued recognition of an ALS following judicial imposition
of criminal penalties.
                                           II
                                     Dispositions
        {¶ 73} Gustafson has not yet stood criminal trial to adjudicate the DUI charge
against him, and our conclusion that the lower court erred in precluding further
prosecution requires a reversal and remand of his case for further proceedings to
resolve the criminal charge of violation of R.C. 4511.19.
        {¶ 74} Upon remand, the ultimate disposition of Gustafson’s criminal case is
a matter for determination in the first instance by the trial court. However, this court
takes judicial notice of the fact that numerous cases presenting double jeopardy
challenges similar to Gustafson’s are currently pending in the courts of Ohio. We
therefore include several additional observations which may prove useful to trial
courts in determining those cases.
        {¶ 75} On remand, Gustafson presumably will be adjudicated either “guilty”
or “not guilty” of the criminal DUI charge against him. Presumably Gustafson’s
ninety-day ALS has expired by its own terms, as more than two years have passed
since his ALS was imposed. If Gustafson is found guilty of the DUI charge, the trial
court will thus not likely be called upon to order termination of an ALS. The question
may instead arise whether Gustafson’s completion of the full ninety-day suspension
imposed pursuant to R.C. 4511.191 requires a different resolution of his double
jeopardy challenge.
        {¶ 76} We have concluded that a short-term administrative license suspension
may “fairly be characterized as remedial” in purpose insofar as it provides for interim
protection of the public pending judicial determination of the driver’s guilt or
innocence of drunk driving. A first-time defendant charged with that crime has a
statutory right to obtain a speedy trial of the DUI charge within ninety days. R.C.
2945.71 et seq. In many cases, as in Gustafson’s case, expiration of an administrative
license suspension before trial will occur, if at all, as a result of the defendant’s own
waiver of speedy trial protections. In such a situation, a trial court may well find that
the administrative license suspension continued to be of a remedial nature throughout
its full statutory duration.
        {¶ 77} If, alternatively, Gustafson is adjudicated not guilty of the DUI charge,
his double jeopardy arguments necessarily fail. A “not guilty” adjudication precludes
imposition of criminal punishment. A court need not engage in a Halper analysis to
determine whether a sanction was “remedial” or constitutes “punishment” when a
single sanction has been imposed.         In such a circumstance, double jeopardy
considerations do not arise.
        {¶ 78} The remaining cases pending before this court are cases in which DUI
prosecutions have proceeded to judgment of conviction and sentencing following the
overruling of motions to dismiss the DUI charges. We thus are called upon to
determine whether the decisions of the lower courts in those cases are consistent with
our holdings herein.
        {¶ 79} We first examine the cases of Sally Bayman and Kenneth Roth, both
of whom refused chemical testing at the time of arrest, and later entered pleas of no
contest to the DUI charges filed against them. Having determined that the imposition
of administrative license suspensions at the time of their arrests did not justify
dismissal of the criminal proceedings against them based on the Double Jeopardy
Clause, we find that the express terms of R.C. 4511.191 mandate the disposition of
their appeals. R.C. 4511.191(K) provides:
        "A suspension of the driver's *** license *** for refusal to submit to a
chemical test to determine the alcohol, drug, or alcohol and drug content of the
person's blood, breath, or urine pursuant to division (E) of this section, shall be
terminated by the registrar upon receipt of notice of *** conviction after entering a
plea of no contest under Criminal Rule 11 to, operating a vehicle while under the
influence of alcohol, *** if the offense for which the plea is entered arose from the
same incident that led to the suspension or denial."
        {¶ 80} Because the statute expressly authorizes termination of an ALS upon a
chemical-test refusal followed by a "no contest" plea, Bayman and Roth's causes are
affirmed for the reasons discussed herein and remanded, with instructions that the trial
court issue an order to BMV to terminate their respective ALSs, retroactive to the date
of sentencing on the DUI convictions.
        {¶ 81} We affirm the judgments of the lower court as to appellants Miller,
Brown and Smith, who consented to breath-alcohol testing, but failed the chemical
test.   Upon entry of conviction and sentencing, their administrative license
suspensions were properly ordered terminated, as at that point in time their ALSs
ceased to be “remedial” in purpose as that term is used in the double-jeopardy context.
Continued recognition of each defendant's ALS subsequent to conviction and criminal
sentencing would therefore result in these appellants being punished twice in separate
proceedings based on the same conduct of drunk driving. Thus, R.C. 4511.191 would
be applied unconstitutionally to them.
                                                               Judgment accordingly.
       DOUGLAS, RESNICK, F.E. SWEENEY and KARPINSKI, JJ., concur.
       DOUGLAS, J., concurs separately.
       PATTON and COOK, JJ., concur in part and dissent in part.
       JOHN T. PATTON, J., of the Eighth Appellate District, sitting for WRIGHT, J.
       DIANE KARPINSKI, J., of the Eighth Appellate District, sitting for PFEIFER, J.
                               __________________
       DOUGLAS, J., concurring.
       {¶ 82} I concur in the majority’s comprehensive and well-reasoned opinion
holding that the initiation of separate criminal proceedings after the imposition of
an administrative license suspension does not violate the protections afforded
individuals by the Double Jeopardy Clauses of the United States and Ohio
Constitutions. I write separately only to state my reasons for concurring in the
majority opinion and to summarize what I believe to be some of the findings of the
majority. Further, I believe that our holding in State v. Hochhausler (1996), 

76 Ohio St.3d 455

, 

668 N.E.2d 457

, paragraph two of the syllabus, will clarify further
any future double jeopardy or due process claims that may arise with respect to
administrative license suspensions.
       {¶ 83} The Fifth Amendment to the United States Constitution and Section
10, Article I of the Ohio Constitution prevent an individual from twice being
prosecuted for the same offense. State v. Delfino (1986), 

22 Ohio St.3d 270

, 272-
273, 22 OBR 443, 445, 

490 N.E.2d 884, 887

. We have also held that the suspension
of a driver’s license pursuant to R.C. 4511.191 is a separate administrative action
unrelated to the criminal case in which the defendant is charged. Hoban v. Rice
(1971), 

25 Ohio St.2d 111, 116

, 

54 O.O.2d 254, 257

, 

267 N.E.2d 311, 315

, and
State v. Starnes (1970), 

21 Ohio St.2d 38, 45-46

, 

50 O.O.2d 84, 88

, 

254 N.E.2d 675, 679-680

.     In addition, we have repeatedly stated that driver’s license
suspension proceedings are civil and administrative in nature and are not criminal
proceedings. See, e.g., Andrews v. Turner (1977), 

52 Ohio St.2d 31, 36

, 

6 O.O.3d 149, 151

, 

368 N.E.2d 1253, 1256

. Thus, none of the defendants in the cases before
us were prosecuted as a result of their R.C. 4511.191 administrative license
suspensions. The state therefore does not implicate the Double Jeopardy Clauses
of the United States and Ohio Constitutions by merely subjecting individuals to an
administrative license suspension and also subjecting them to criminal prosecutions
pursuant to R.C. 4511.19.
       {¶ 84} With respect to the underlying purpose of R.C. 4511.191, we have
emphasized that the aim of the statute is not to punish individuals who refuse to
take a sobriety test or punish those who test over the legal limit, but to protect the
public. See, e.g., 

Hoban, supra,

25 Ohio St.2d at 114

, 

54 O.O.2d at 256

, 

267 N.E.2d at 314

 (“R.C. 4511.191 * * * was enacted to protect innocent motorists and
pedestrians from injury and death caused by irresponsible acts of unsafe drivers on
Ohio streets and highways. The broad purpose of the implied-consent statute is to
clear the highways of and to protect the public from unsafe drivers.”). Indeed, R.C.
4511.191 is remedial in nature. Accordingly, if proper protections are accorded, an
administrative license suspension does not violate any prohibition against multiple
punishments.
       {¶ 85} Further, the right to drive a motor vehicle in Ohio is not
constitutionally guaranteed. In fact, the right to possess a driver’s license is not a
substantial private interest but a state regulated privilege. Maumee v. Gabriel
(1988), 

35 Ohio St.3d 60, 63

, 

518 N.E.2d 558, 561

. Clearly, the right to operate
motor vehicles on public roadways of this state may be regulated by the lawful
exercise of the police power for the benefit of public safety and welfare. In this
regard, a sanction which involves the suspension of a privilege that was voluntarily
granted supports a finding that it is “characteristically free of the punitive criminal
element.” Helvering v. Mitchell (1938), 

303 U.S. 391, 399

, 

58 S.Ct. 630, 633

, 

82 L.Ed. 917, 922

.
       {¶ 86} Moreover, in Hochhausler, we severed the “no stay” provision from
R.C. 4511.191(H)(1), concluding that the provision is unconstitutional as violative
of the separation of powers doctrine. Clearly, inherent within a court’s jurisdiction
is the right to grant or deny stays.       The practical effect of our holding in
Hochhausler is that during the initial appearance resulting from the OMVI charge,
a trial court now has the discretion to stay (or continue) the driver’s license
suspension pending further appeal, or pending the outcome of the OMVI charge.
However, to facilitate our holding in Hochhausler, and to avoid triggering a double
jeopardy claim, the initial appearance must be held within five days of the
individual’s arrest. Such a requirement is mandated by statute. See, e.g., R.C.
4511.191(C)(2)(b), (D)(1)(a), (G)(2) and (H)(1), effective July 1, 1996. The five-
day time frame is crucial to a determination that a R.C. 4511.191 administrative
license suspension remains remedial and not punitive. As such, any continuance of
the initial appearance, that was not requested or waived by the defendant, would,
in my opinion, punish the defendant and trigger double jeopardy protection.
       {¶ 87} The ability of a trial court to stay or continue an administrative
license suspension at the initial appearance further supports the conclusion that R.C.
4511.191 is truly a remedial statute, rather than punitive in nature. During the initial
appearance, a trial court can make an individualized assessment and determine if a
stay of the suspension is or is not warranted. As one distinguished commentator
has noted: “Double jeopardy and due process arguments are seriously undermined
when the decision to continue the ALS is based on an individualized assessment of
whether the motorist is a threat to public safety. Drivers with a history of impaired
or reckless driving, or who have displayed other indicia of dangerousness, can be
prohibited from driving until a court has the opportunity to hear their ALS appeal.
As to those drivers that present a lesser risk to public safety, a court can stay the
ALS or tailor conditions to any occupational driving privileges granted.” Kravitz,
Ohio’s Administrative License Suspension: A Double Jeopardy and Due Process
Analysis, 29 Akron Law Review (1996) 123, 201.
        {¶ 88} The number of instances of individuals driving while under the
influence of intoxicating substances continues to be alarming. To obtain a true
understanding of the magnitude of the problem, one need only observe the number
of OMVI cases that have flooded the courts in this state. Recognizing the problem,
the General Assembly has taken strong action to stem the tide. Its efforts to improve
public safety should be applauded. I believe that our recent decisions in this area
have achieved a proper balance -- protecting innocent motorists and pedestrians
from individuals who chose to drink and drive, while also recognizing
constitutional safeguards that are afforded to all citizens.
                                __________________
        PATTON, J., concurring in part and dissenting in part.
        {¶ 89} I join with paragraphs one and two of the syllabus, but dissent from
paragraphs three, four and five of the syllabus. Like Justice Cook, I believe double
jeopardy is not implicated by the ALS statute, but wish to add some additional
thoughts.
        {¶ 90} I agree with Justice Cook’s analysis that R.C. 4511.191 does not
violate the Double Jeopardy Clause because the in rem forfeiture of a driver’s
license is neither punishment nor tied to criminal behavior. In my view, R.C.
4511.191 serves primarily the purpose of assisting the state in proving a drunk
driving offense by enforcing a driver’s implied consent to chemical testing. Viewed
in this light, the refusal to take a chemical test is grounded on conduct wholly
different from the drunk driving offense and therefore is not the same criminal
activity.
        {¶ 91} Just this term in Dobbins v. Ohio Bur. of Motor Vehicles (1996), 

75 Ohio St.3d 533, 537

, 

664 N.E.2d 908, 911

, we stated that R.C. 4511.191(C)(1) is
“constitutional and all proceedings thereunder are civil in nature and solely
administrative.” This view comports with our long-standing precedent to that same
effect. See, e.g., Hoban v. Rice (1971), 

25 Ohio St.2d 111

, 

54 O.O.2d 254

, 

267 N.E.2d 311

, paragraph one of the syllabus; State v. Starnes (1970), 

21 Ohio St.2d 38

, 

50 O.O.2d 84

, 

254 N.E.2d 675

, paragraph two of the syllabus.
       {¶ 92} Driving while intoxicated and refusing to take a chemical test are
separate actions for purposes of double jeopardy analysis. The majority’s view that
these separate actions are so “inextricably intertwined” as to constitute the same
offense overlooks the underlying purpose of the refusal statute.
       {¶ 93} The General Assembly instituted the ALS as a means of facilitating
the state’s interest in proving drunk driving offenses; hence, the ALS simply
enforces the driver’s implied consent to chemical testing. This implied consent to
chemical testing is a condition of securing the privilege to drive a motor vehicle.
We said as much in Dobbins, when we found that the implied consent statute is
“‘designed to discourage any person from refusing to take the tests when he is
arrested for driving while under the influence.’” Id. at 539, 

664 N.E.2d at 912

.
       {¶ 94} Nearly every component of R.C. 4511.191 is geared to effectuate the
state’s interest in proving the drunk driving offense. For example, the suspensions
imposed on drivers who refuse to take a chemical test are greater than those
imposed for drivers who take the chemical test and fail.              Compare R.C.
4511.191(E)(1)(a) through (d) (refusing to take the test) with R.C.
4511.191(F)(1)(a) through (d) (failing the test). The statute specifically provides
that a suspension for refusing to take the chemical test continues despite a not guilty
verdict, while the suspension imposed for failing the chemical test terminates upon
a not guilty finding. See R.C. 4511.191(H)(2). Finally, the only time a refusal
suspension is terminated is if the driver either pleads guilty or no contest to the
charge under Crim.R. 11. See R.C. 4511.191(K). Hence, if the driver belatedly
lives up to the preconditions for obtaining a license, it obviates the state’s need to
go forward with proof at trial. It is therefore perfectly logical for the General
Assembly to implement the statutory framework it has devised.
       {¶ 95} This framework is entirely in keeping with the legislature’s intent to
enforce the implied consent provisions. The refusal to take the chemical test is not
criminal conduct, but it is a sanction for failing to live up to the conditions
prescribed for obtaining and holding a driver’s license. We have upheld the implied
consent statute on numerous occasions, and in other contexts relating to licensing,
stated, “Clearly the license is a personal privilege subject to reasonable restrictions
and revocation by the issuing authority.” Ohio State Med. Bd. v. Miller (1989), 44
Ohio St.3d. 136, 140, 

541 N.E.2d 602, 605

, citing Lap v. Axelrod (1983), 

95 App.Div. 457

, 467 N.Y. S.2d 920.           By imposing an administrative license
suspension for refusing to take a chemical test, the state does no more than enforce
a condition of obtaining a license.
       {¶ 96} I also believe United States v. Ursery (1996), 

518 U.S. ___

, 

116 S.Ct. 2135

, 

135 L.Ed.2d 549

, 

1996 WL 340815

, has a far broader reach. though Ursery
limited its discussion to in rem forfeitures, there can be no doubt that decision
disavows the reasoning of the Halper-Auston-Kurth Ranch trilogy utilized by the
majority.
       {¶ 97} Crucial to the majority’s analysis is the notion that under Halper,
R.C. 4511.191 violates double jeopardy because its remedial aspects somehow
“cross the line” and become punishment. Ursery, however, put the Halper line of
analysis to a stop. Chief Justice Rehnquist, writing for the court, expressly rejected
any application of Halper that would impose a general rule whereby courts could
consider whether a sanction is punitive in character. Chief Justice Rehnquist
labeled that discussion in Halper “dictum,” and noted the court’s own holding in
that case did not support such a conclusion:
       “Whether a particular sanction ‘cannot fairly be said solely to serve a
remedial purpose’ is an inquiry radically different from that we have traditionally
employed in order to determine whether, as a categorical matter, a civil sanction is
subject to the Double Jeopardy Clause. Yet nowhere in Halper does the Court
purport to make such a sweeping change in the law, instead emphasizing repeatedly
the narrow scope of the decision. 

Halper, supra, at 449

 [

109 S.Ct. at 1902

, 

104 L.Ed.2d at 502

] (announcing rule for ‘the rare case’). If the ‘general rule’ of Justice
Stevens were applied literally, then virtually every sanction would be declared to
be a punishment: it is hard to imagine a sanction that has no punitive aspect
whatsoever. Justice Stevens’ interpretation of Halper is both contrary to the
decision itself and would create an unworkable rule inconsistent with well-
established precedent.” (Emphasis added in part.) Ursery, 

518 U.S. at ___

, 

116 S.Ct. at 2146

, 

135 L.Ed.2d at 566, fn. 2

.
       {¶ 98} The majority does not apply this interpretation of Halper, but instead
tries to distinguish it by noting Halper involved in rem forfeiture while this case
does not. This is a distinction without a meaning. The United States Supreme
Court forcefully limited Halper, finding an in rem forfeiture would be subject to
the Double Jeopardy Clause when the “‘clearest proof’” showed that an in rem
forfeiture is “‘so punitive either in purpose or effect’” that it became the equivalent
of a criminal proceeding. 

Id.

 at ___ , 

116 S.Ct. at 2148

, 

135 L.E.2d at 569, fn. 3

.
       {¶ 99} There may be a punitive element to the ALS, but that consequence
comes only as a result of enforcing the implied consent provisions, not as a matter
of driving while intoxicated. Ursery held a remedial sanction can carry with it an
unavoidable component of retribution or punishment, but that fact alone is not
sufficient to show a punitive purpose behind the statute. The majority must show
by the “clearest proof” that the license suspension is so punitive either in purpose
or effect that it becomes criminal punishment. Yet, we have consistently found the
ALS statute is civil and remedial in purpose, a finding the majority reaffirms today.
       {¶ 100} The majority’s view that the short suspension periods set forth in
R.C. 4511.191 “cross the line” from remediation to punishment at the time of
conviction creates a double jeopardy exception where the United States Supreme
Court has said that none exists. It should be recognized the initial ninety-day
suspension period is actually shorter than the suspension periods of other states that
have upheld the constitutionality of their suspension statutes.             See, e.g.,
Fla.Stat.Ann. Section 322.2615(1)(b)(1.a.) (one-year suspension for first refusal);
Mass.Ann.Laws Chapter 90, Section 24(1)(f)(1) (at least one-hundred-twenty-day
suspension, but not more than one year for first refusal); Ariz.Rev.Stat. Section 28-
691(B) (twelve-month suspension for first refusal); Ind.Ann.Code Section 9-30-6-
9(a)(1) (one-year suspension for first refusal).
       {¶ 101} Of course, the suspension periods in R.C. 4511.191(E)(1)(a)
through (d) increase dramatically for drivers with prior refusals (topping out at five
years for a third refusal to consent to testing within five years), but those increased
suspension periods are directly related to the number of prior refusals. As the
majority recognizes, Ohio police are not authorized to demand chemical testing
absent probable cause to believe the driver is intoxicated. Probable cause to believe
a driver is operating a vehicle while intoxicated arises from readily discernable
indicia under the totality of the circumstances. See, e.g., State v. Bycznski (1994),

98 Ohio App.3d 625

, 

649 N.E.2d 285

, (bloodshot eyes and slurred speech);
Wickliffe v. Gutauckas (1992), 

79 Ohio App.3d 224

, 

607 N.E.2d 54

 (collecting
cases). Therefore, repeated refusals to take requested chemical tests demonstrate a
level of recidivism meriting the additionally lengthy suspension periods imposed
by the General Assembly.
       {¶ 102} Finally, even if the majority correctly uses Halper as the basis of
its double jeopardy analysis, R.C. 4511.191 would still pass muster as a matter of
constitutional law. The courts have repeatedly upheld remedial sanctions imposed
following a related criminal conviction. For example, in State ex rel. Celebrezze v.
Hughes (1991), 

58 Ohio St.3d 273

, 

569 N.E.2d 1059

, this court relied on Halper
and held in the syllabus that R.C. 1345.07(D) and 4549.48(B) were intended to
impose civil penalties without regard to the procedural protections and restrictions
available in criminal prosecutions.
       {¶ 103} Under somewhat closer facts, the courts have held that a prisoner’s
forty-five-day disciplinary segregation following a conviction for institutional
assault sufficiently related to the government’s remedial interest in maintaining
prison order that it did not constitute punishment for double jeopardy purposes.
See, e.g., United States v. Hernadez-Fundora (C.A.2, 1995), 

58 F.3d 802

; see, also,
State v. Keller (1976), 

52 Ohio App.2d 217

, 

6 O.O.3d 235

, 

369 N.E.2d 798

.
       {¶ 104} And, in United States v. Stoller (C.A.1, 1996), 

78 F.3d 710

, the
court found an administrative debarment imposed by the Federal Deposit Insurance
Corporation did not constitute a punishment for double jeopardy purposes so as to
bar a subsequent criminal prosecution under federal banking laws. See, also,
United States v. Hudson (C.A.10, 1994), 

14 F.3d 536

 (same); cf. Manoccio v.
Kusserow (C.A.11, 1992), 

961 F.2d 1539

 (physician’s five-year debarment from
federal Medicare program not barred by physician’s prior conviction on Medicare
fraud stemming from the same events).
       {¶ 105} The General Assembly intended R.C. 4511.191 to have a strong
bite, but today’s decision, read in conjunction with State v. Hochhausler (1996), 

76 Ohio St.3d 455

, 

668 N.E.2d 457

, extracts the teeth from the statute.
       {¶ 106} By enacting the “no stay” provisions of R.C. 4511.191(H)(1), the
General Assembly intended to force courts to impose consistently the mandated
license suspensions. Severing the “no stay” provision gives trial courts unlimited
discretion to allow drunk drivers back on the highways while they await the
protracted delays occasioned by their appeals as they wind their way through the
judicial system.
       {¶ 107} R.C. 4511.191(H)(1) does not grant courts discretion to refuse to
impose a suspension—if the state establishes the four criteria set forth in R.C.
4511.191(H)(1), the suspension must be imposed, in increasing severity to the
number of prior refusals to take the test. Nevertheless, lower courts can now
exercise unlimited discretion to stay execution of the mandatory suspension. The
logical conclusion is that a stay could be entered pending either the outcome of the
criminal charge or further appeal of the license suspension. That discretion would
be unfettered because the state would have no opportunity to appeal the stay, there
being no final order (unlike the defendant appealing a license suspension). Cf.
Bellaire City Schools Bd. of Edn. v. Paxton (1979), 

59 Ohio St.2d 65

, 

391 N.E.2d 1021

, syllabus.
         {¶ 108} The obvious question, then, is why would a driver take the breath
test? Suppose a driver receives an ALS for a third refusal to take a test in the
previous five years. The driver appeals the suspension at an initial hearing held one
day following the arrest. The trial court upholds the ALS, but stays execution of
the ALS pending the outcome of the drunk driving charge. Regardless of the
outcome of that drunk driving charge, the ALS now terminates upon either acquittal
or judgment of conviction. As a practical matter, the driver has suffered only a one-
day loss in driving privileges, a minor inconvenience, in exchange for depriving the
state of conclusive proof from the results of a chemical test.
         {¶ 109} This result is contrary to the obvious intent and sound policy which
prompted the General Assembly to enact the statute. If R.C. 4511.191 is to have
any meaningful remedial purpose, the statute must be upheld in its entirety. I would
find R.C. 4511.191 constitutional in all respects; therefore, I respectfully dissent.4


4. The court’s holding today may have other unintended ramifications. The governing bodies of
most professional organizations are permitted to discipline members who commit felonies or crimes
by suspending or revoking those members’ professional licenses. See, e.g., R.C. 4701.16
(accountants); R.C. 4731.22(B) (physicians). Pursuant to Gov.Bar R. V(5)(A)(3), this court has
upheld the suspension or disbarment of attorneys for criminal convictions. See, e.g., Disciplinary
Counsel v. Mullen (1995), 

73 Ohio St.3d 295

, 

652 N.E.2d 978

; Disciplinary Counsel v. Ostheimer
(1995), 

72 Ohio St.3d 304

, 

649 N.E.2d 1217

. Presumably, a license to practice one’s livelihood
would be considered at least as important as a license to drive, so the court’s holding today raises
serious double jeopardy implications with such suspensions or disbarments.
       COOK, J., concurs in the foregoing opinion.
                               __________________
       COOK, J., concurring in part and dissenting in part.
       {¶ 110} I concur in paragraphs one and two of the syllabus. However, I
respectfully dissent from paragraphs three, four and five.        I disagree with the
majority’s conclusion that the Halper-Austin-Kurth Ranch “trilogy” mandates a
finding that the ALS constitutes punishment. The recent United States Supreme
Court pronouncement in United States v. Ursery (1996), 

518 U.S. __

, 

116 S.Ct. 2135

, 

135 L.Ed.2d 549

, 

64 USLW 4565

, so limits the applicability of those cases
to their individual facts as to render discussion of them as a group inapposite.
       {¶ 111} Unless the ALS sanction is intended as punishment, such that the
proceeding is essentially criminal in character, the Double Jeopardy Clause is not
applicable. United States v. One Assortment of 89 Firearms (1984), 

465 U.S. 354, 362

, 

104 S.Ct. 1099, 1105

, 

79 L.Ed.2d 361, 368

. In Ursery, the Supreme Court
employed the two-part analysis articulated in 89 

Firearms, supra,

 to determine
whether an in rem civil forfeiture proceeding constituted punishment. 518 U.S.at
__, 

116 S.Ct. at 2146-2148

, 

135 L.Ed.2d at 566-569

, 64 USLW at 4571. In reaching
its conclusion, the Ursery court rejected the notion that the Halper-Austin-Kurth
Ranch trilogy accomplished a “radical jurisprudential shift” in double jeopardy
analysis. Id. at __, 

116 S.Ct. at 2143-2144

, 

135 L.Ed.2d at 562-564

, 64 USLW at
4569. Rather, the court limited application of the “trilogy” to the facts presented in
them. For example, the court limited the Halper proportionality test to in personam
civil penalties, the Kurth Ranch analysis to tax proceedings, and Austin to civil
forfeitures under the Excessive Fines Clause. Id. at __, 

116 S.Ct. at 2146-2148

, 

135 L.Ed.2d at 566-569

, 64 USLW at 4571. The court stressed that “[n]one of those
cases dealt with the subject of this case: in rem civil forfeitures for purposes of the
Double Jeopardy Clause.” Id. at ___, 

116 S.Ct. at 2147

, 

135 L.Ed.2d at 568

.
        {¶ 112} Clearly, the ALS is not a tax proceeding; nor does Gustafson
challenge the ALS under the Excessive Fines Clause. Thus, we must consider
whether the ALS is more in the nature of an in rem civil forfeiture or an in personam
civil penalty to determine the proper punishment analysis to apply in this case.
        {¶ 113} In discussing the differences between in rem civil forfeitures and in
personam civil penalties, the Ursery court stated:
        “[W]e have distinguished civil penalties such as fines from civil forfeiture
proceedings that are in rem. While a ‘civil action to recover. . . penalties, is punitive
in character,’ and much like a criminal prosecution in that ‘it is the wrongdoer in
person who is proceeded against . . .and punished,’ in an in rem forfeiture
proceeding, ‘it is the property which is proceeded against, and by resort to a legal
fiction, held guilty and condemned.’
        “* * * Civil penalties are designed as a rough form of ‘liquidated damages’
for the harms suffered by the Government as a result of a defendant’s conduct. * *
* Civil forfeitures, in contrast to civil penalties, are designed to do more than simply
compensate the Government. Forfeitures serve a variety of purposes, but are
designed primarily to confiscate property used in violation of the law, and to require
disgorgement of the fruits of illegal conduct.” 

Id.

 at ___ - ___, 

116 S.Ct. at 2144

-
2145, 

135 L.Ed.2d at 565

, 64 USLW at 4570.
        {¶ 114} A driver’s license is a property right, and not a liberty interest. See
State v. Williams (1996), __ Ohio St.3d __, __ N.E.2d __; see, also, Doyle v. Ohio
Bur. of Motor Vehicles (1990), 

51 Ohio St.3d 46

, 

554 N.E.2d 97

, paragraph two of
the syllabus (“In Ohio, a license to operate a motor vehicle is a privilege, and not
an absolute property right.”). The ALS also serves a variety of purposes, but is
designed primarily to remove intoxicated drivers from the highways by temporarily
confiscating the licenses of those drivers when they have been used to violate the
law. See Dobbins v. Ohio Bur. of Motor Vehicles (1996), 

75 Ohio St.3d 533, 539

,

664 N.E.2d 908, 912

.      For these reasons, I conclude that the ALS is more in the
nature of an in rem civil forfeiture rather than an in personam civil penalty and,
accordingly, apply the 89 Firearms two-part analysis to determine whether the ALS
is civil and remedial or criminal and punitive in nature.
       {¶ 115} Under the first prong of the 89 Firearms test, this court should ask
whether the General Assembly intended the proceedings under R.C. 4511.191 to
be criminal or civil. 

465 U.S. at 362

, 

104 S.Ct. at 1105

, 

79 L.Ed.2d at 368

. The
General Assembly’s intent is most clearly demonstrated by the procedural
mechanisms it established to enforce the ALS. See Ursery, 

518 U.S. at ___

 - ___,

116 S.Ct. at 2146-2148

, 

135 L.Ed.2d at 566-569

, 64 USLW at 4571. As noted by
the majority, the ALS is accomplished through “administrative proceedings” of a
summary nature. The proceedings are not conducted in the criminal court, but
rather are conducted initially by the arresting officer and processed within the
bureaucracy of the BMV.         Thereafter, a judicial officer presides over the
administrative appeal of the ALS. At the appeal, the defendant carries the burden
of proving by a preponderance of the evidence that one of the specified conditions
for the ALS has not been met. R.C. 4511.191(H)(2). By creating these distinctly
administrative and civil proceedings to enforce the ALS, the General Assembly has
indicated that it intended a civil and not a criminal sanction.
       {¶ 116} Under the second part of the 89 Firearms test, a court considers
whether the proceedings are so punitive in fact as to “persuade us that the forfeiture
proceeding[s] may not legitimately be viewed as civil in nature,” despite the
General Assembly’s intent. 

465 U.S. at 366

, 

104 S.Ct. at 1107

, 

79 L.Ed.2d at 371

.
“‘“Only the clearest proof”’ that the purpose and effect of [the ALS] are punitive
will suffice to override [the General Assembly’s] manifest preference for a civil
sanction. * * * ” (Citations omitted.) 

Id. at 365

, 

104 S.Ct. at 1106

, 

79 L.Ed.2d at 370

. In Kennedy v. Mendoza-Martinez (1963), 

372 U.S. 144, 168-169

, 

83 S.Ct. 554, 567-568

, 

9 L.Ed.2d 644, 661

, the court set forth a list of considerations that
are helpful in making this determination, although this list is “neither exhaustive
nor dispositive.” United States v. Ward (1980), 

448 U.S. 242, 249

, 

100 S.Ct. 2636, 2641

, 

65 L.Ed.2d 742, 750

.5
         {¶ 117} As was the case in Ursery, most significant among the
considerations is that despite having certain punitive aspects, the ALS serves
important nonpunitive goals. 

518 U.S. at ___

-___, 

116 S.Ct. at 2148-2149

, 

135 L.Ed.2d at 570

, 64 USLW at 4572. The goal and corresponding purpose of the
ALS are to remove drunk drivers from our highways in order to protect the public.
Although the terms of the suspension may extend beyond the time period necessary
to achieve this immediate goal, the length of the suspension directly correlates to
the number of OMVI convictions within the preceding five years and is not
excessive. Scaling the terms of the suspension reflects the level of danger repeat
offenders are presumed to present to the public and the overriding remedial nature
of the suspension.        The 1993 amendments to the ALS statute also support the
conclusion that the suspension is remedial. Under the older provisions of the ALS
statute, the suspension did not become effective until processed by the BMV. See
State v. Sims (Aug. 21, 1995), Butler App. No. CA94-12-215, unreported. Under
the current ALS statute, however, the suspension is immediately effective. R.C.
4511.191(D)(1). This change indicates the legislative intent to pass remedial
legislation accelerating the time for the removal of allegedly intoxicated drivers
from the road. Though the ALS may be said to serve the purpose of deterrence,
this purpose may serve criminal as well as civil goals. Ursery, 

518 U.S. at ___

-___,

116 S.Ct. at 2148-2149

, 

135 L.Ed.2d at 570

, 64 USLW at 4572.



5. The Mendoza-Martinez considerations include “[w]hether the sanction involves an affirmative
disability or restraint, whether it has historically been regarded as punishment, whether it comes into
play only on a finding of scienter, whether its operation will promote the traditional aims of
punishment—retribution and deterrence, whether the behavior to which it applies is already a crime,
whether an alternative purpose to which it may rationally be connected is assignable for it, and
whether it appears excessive in relation to the alternative purpose assigned * * *.” (Footnotes
omitted.) 

372 U.S. at 168-169

, 

83 S.Ct. at 567-568

, 

9 L.Ed.2d at 661

.
        {¶ 118} Other considerations relevant to the question of whether a
proceeding is criminal support a conclusion that R.C. 4511.191 is a civil
proceeding. As acknowledged by the majority, these proceedings historically and
repeatedly have been considered civil in nature and remedial in purpose. Dobbins,

75 Ohio St.3d at 537

, 

664 N.E.2d at 911

; Andrews v. Turner (1977), 

52 Ohio St.3d 31

, 

6 O.O.3d 149

, 

368 N.E.2d 1253

; Hoban v. Rice (1971), 

25 Ohio St.2d 111

, 

54 O.O.2d 254

, 

267 N.E.2d 311

; State v. Starnes (1970), 

21 Ohio St.2d 38

, 

50 O.O.2d 84

, 

254 N.E.2d 675

.      This court has previously labeled the temporary license
suspension an “inconvenience,” Columbus v. Adams (1984), 

10 Ohio St.3d 57, 60

,
10 OBR 348, 350, 

461 N.E.2d 887, 890

, and the granting of a license a privilege
and not an absolute property right. Dobbins, 

75 Ohio St.3d at 538

, 

664 N.E.2d at 912

; Doyle, 

51 Ohio St.3d at 51

, 

554 N.E.2d at 102

. Thus, under our precedent, the
temporary revocation of a driver’s license does not establish an affirmative restraint
or disability. In addition, there is no requirement that the government establish
scienter in order to establish that the license is subject to suspension. Although the
ALS is tied to criminal activity, I find, as did the Ursery court, that by itself, this
fact does not constitute the “clearest proof” necessary to show that the proceeding
is criminal.
        {¶ 119} Accordingly, I would hold that the ALS is not punishment for
purposes of the Double Jeopardy Clause and therefore, does not preclude a later
OMVI conviction.
        PATTON, J., concurs in the foregoing opinion.
                               __________________