State v. Uskert

[This opinion has been published in Ohio Official Reports at 

85 Ohio St.3d 593

.]




             THE STATE OF OHIO, APPELLANT, v. USKERT, APPELLEE.
                      [Cite as State v. Uskert, 

1999-Ohio-289

.]
Criminal law—Motor vehicles—Traffic offenses—Driving while intoxicated—
        Administrative license suspension—Reinstatement fee of former R.C.
        4511.191(L)(2) does not violate the Double Jeopardy Clause.
The reinstatement fee of former R.C. 4511.191(L)(2) does not violate the Double
        Jeopardy Clause of the Fifth Amendment to the United States Constitution
        or Section 10, Article I of the Ohio Constitution.
        (No. 98-217—Submitted January 27, 1999—Decided June 2, 1999.)
   APPEAL from the Court of Appeals for Ashland County, No. 97-COA-01219.
                                  __________________
        {¶ 1} On March 6, 1997, following a traffic accident, the defendant-
appellee, Scott J. Uskert, was arrested and charged with violations of R.C.
4511.19(A)(1), operating a motor vehicle while under the influence of alcohol, and
R.C. 4511.19(A)(3), driving with a prohibited concentration of alcohol. Pursuant
to R.C. 4511.191, Ohio’s implied consent law, defendant submitted to a breath test,
and after testing positive for alcohol, defendant was placed under an administrative
license suspension, and his license was seized pursuant to R.C. 4511.191.
        {¶ 2} On March 11, 1997, at defendant’s administrative license suspension
hearing, he entered an initial plea of not guilty. On March 21, 1997, defendant’s
petition for occupational driving privileges was granted effective March 28, 1997.
On April 14, 1997, defendant entered a plea of no contest, and it appears from the
record that the R.C. 4511.19(A)(1) charge was nolled. At that time, defendant was
sentenced to sixty days in jail, with fifty-seven days suspended, placed on probation
for one year, ordered to pay a fine of $300, and received a judicial license
                              SUPREME COURT OF OHIO




suspension of one year, effective April 14, 1997. Defendant’s occupational driving
privileges were continued.
         {¶ 3} On April 22, 1997, defendant filed a motion appealing the
constitutionality of the reinstatement fee provision of former R.C. 4511.191(L)(2).
Pending defendant’s appeal, the reinstatement fee was stayed, and there is no record
that the fee was paid. After the Ashland Municipal Court rejected the motion
challenging the constitutionality of the statute on May 6, 1997, defendant appealed
to the Court of Appeals for Ashland County, which reversed the decision of the trial
court.
         {¶ 4} This cause is now before this court upon the allowance of a
discretionary appeal.
                                __________________
         Betty D. Montgomery, Attorney General, Edward B. Foley, State Solicitor,
Christopher S. Cook, Assistant Attorney General, and Richard P. Wolfe, Ashland
City Law Director, for appellant.
         Joseph P. Kearns, Jr., for appellee.
                                __________________
         LUNDBERG STRATTON, J.
         {¶ 5} The issue presented to this court is whether the reinstatement fee paid
to the Bureau of Motor Vehicles at the conclusion of an administrative license
suspension (“ALS”) in the amount of $250, pursuant to former R.C.
4511.191(L)(2), is “punishment,” thereby subjecting the defendant to double
jeopardy. For the following reasons, we find that the reinstatement fee of former
R.C. 4511.191(L)(2) is not a “punishment” that would subject the defendant to
double jeopardy, and, therefore, we reverse the judgment of the court of appeals.
         {¶ 6} The Double Jeopardy Clause of the Fifth Amendment to the United
States Constitution provides, “nor shall any person be subject for the same offense
to be twice put in jeopardy of life or limb.” This federal protection is applicable to




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                               January Term, 1999




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. Gustafson (1996), 

76 Ohio St.3d 425, 432

, 

668 N.E.2d 435, 441

. Similarly, Section 10, Article I of the Ohio
Constitution provides that “[n]o person shall be twice put in jeopardy for the same
offense.”
       {¶ 7} As this court recognized recently, “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.” Gustafson, 

76 Ohio St.3d at 432

, 

668 N.E.2d at 441

, citing United States v. Halper (1989), 

490 U.S. 435, 440

, 

109 S.Ct. 1892, 1897

, 

104 L.Ed.2d 487, 496

.
       {¶ 8} We considered the double jeopardy implications of the ALS in
Gustafson. We held that “[t]he Double Jeopardy Clauses of the Fifth Amendment
to the United States Constitution and Section 10, Article I of the Ohio Constitution
do not preclude the 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.” 

Id.,

 paragraph one
of the syllabus.
       {¶ 9} We noted, however, that “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.” 

Id. at 441

, 

668 N.E.2d at 447

. Thus, we held that “[b]ecause
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




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                                  SUPREME COURT OF OHIO




penalties for driving while under the influence of intoxicating drugs, including
alcohol.” 

Id.,

 paragraph four of the syllabus.
         {¶ 10} The statute in effect at the time of the defendant’s suspension, former
R.C. 4511.191(L), provided that “[a]t the end of a suspension period under this
section, section 4511.196, or division (B) of section 4507.16 of the Revised Code
and upon the request of the person whose driver’s or commercial driver’s license
or permit was suspended and who is not otherwise subject to suspension,
revocation, or disqualification, the registrar shall return the driver’s or commercial
driver’s license or permit to the person upon the occurrence of all of the following:
         “(1) A showing by the person that the person had proof of financial
responsibility, a policy of liability insurance in effect that meets the minimum
standards set forth in section 4509.51 of the Revised Code, or proof, to the
satisfaction of the registrar, that the person is able to respond in damages in an
amount at least equal to the minimum amounts specified in section 4509.51 of the
Revised Code.
         “(2) Payment by the person of a license reinstatement fee of two hundred
and fifty dollars to the bureau of motor vehicles, which fee shall be deposited in the
state treasury * * *.” (Emphasis added.) Former R.C. 4511.191(L), effective
October 17, 1996, 146 Ohio Laws, Part V, 9967.1
              I.       Reinstatement fee does not “continue” the ALS
         {¶ 11} In this case, the court of appeals based its decision on the premise
that the $250 reinstatement fee, “if not paid, would operate to continue the
administrative license suspension,” in violation of our holdings in Gustafson.
(Emphasis added.) We disagree.




1. Effective September 16, 1998, the General Assembly amended R.C. 4511.191 to require only one
reinstatement fee of four hundred five dollars if the suspension arises from a single incident or a
single set of facts and circumstances. R.C. 4511.191(L)(2) and (3), Am.Sub.S.B. No. 80.




                                                4
                                 January Term, 1999




       {¶ 12} The length of the ALS is determined by R.C. 4511.191(F),
depending upon the number, if any, of prior convictions for OMVI. The ALS
terminates at (1) the end of the suspension period designated by R.C. 4511.191(F);
(2) the initial appearance if the judge or referee of the trial court or the mayor of
the mayor’s court determines that one or more of the conditions specified in
divisions (H)(1)(a) to (d) of this section have not been met, subject to the imposition
of a new suspension under division (B) of section 4511.196 of the Revised Code
[R.C. 4511.191(H)(2)]; (3) by the registrar upon receipt of notice of the person’s
entering a plea of guilty to or of the person’s conviction after entering a plea of no
contest under Crim.R. 11 to OMVI [R.C. 4511.191(K)]; or (4) the violation for
which the driver was arrested and in relation to which the suspension was imposed
is adjudicated on the merits by the judge or referee of the trial court or by the mayor
of the mayor’s court [R.C. 4511.191(H)(2)].
       {¶ 13} The suspension ends regardless of whether the driver satisfies the
two conditions of R.C. 4511.191(L). The two conditions of R.C. 4511.191(L),
proof of financial responsibility and payment of the reinstatement fee, are, as the
dissent in the court of appeals’ decision pointed out, conditions precedent to the
return of the license by the registrar.
       {¶ 14} Further, as noted by the same dissent, one who drives after the
termination of the ALS, but who has not paid his or her reinstatement fee, is in
violation of R.C. 4507.02(C), whereas one who drives during his or her ALS does
so in violation of R.C. 4507.02(D)(1).
       {¶ 15} The appellate court went on to find that “[i]f the reinstatement fee
remains enforceable, then the administrative license suspension does not terminate
until payment of the fee. Thus, presumably, unless the trial court vacates both the
administrative license suspension and the reinstatement fee upon conviction, then
the administrative license suspension may survive appellant’s conviction.”




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                              SUPREME COURT OF OHIO




       {¶ 16} Therefore, as a threshold matter, we find that the failure to pay the
reinstatement fee of former R.C. 4511.191(L) does not operate to continue the ALS
because the ALS terminates as prescribed by R.C. 4511.191(F), (H)(2), or (K),
regardless of whether the driver satisfies the two conditions of former R.C.
4511.191(L).
                        II.     Double Jeopardy Analysis
       {¶ 17} We must begin any analysis of a statute by pointing to the well-
settled rule that an Act of the General Assembly is entitled to a strong presumption
of constitutionality. State v. Hochhausler (1996), 

76 Ohio St.3d 455, 458

, 

668 N.E.2d 457, 462

; Arnold v. Cleveland (1993), 

67 Ohio St.3d 35

, 

616 N.E.2d 163

.
Further, challenged legislation will not be invalidated unless the challenger
establishes the unconstitutional nature of the statute beyond a reasonable doubt.
Hochhausler, 

76 Ohio St.3d at 458

, 

668 N.E.2d at 462

.
       {¶ 18} In 1989, the United States Supreme Court held that a criminal trial
will be precluded by double jeopardy after a civil sanction has been imposed when
the civil sanction was “overwhelmingly disproportionate” to the damages caused
to the state by the defendant’s wrongful conduct. United States v. Halper, 

490 U.S. at 449

, 

109 S.Ct. at 1902

, 

104 L.Ed.2d at 502

.
       {¶ 19} However, in 1997, the United States Supreme Court largely
“disavow[ed] the method of analysis” used in Halper, 

490 U.S. at 448

, 

109 S.Ct. at 1901-1902

, 

104 L.Ed.2d at 501

, and reaffirmed the previously established rule
exemplified in United States v. Ward (1980), 

448 U.S. 242, 248-249

, 

100 S.Ct. 2636, 2641-2643

, 

65 L.Ed.2d 742, 749

. Hudson v. United States (1997), 

522 U.S. 93, 96

, 

118 S.Ct. 488, 491

, 

139 L.Ed.2d 450, 457

.
       {¶ 20} In disavowing Halper, the Supreme Court returned to a two-part test
that requires the court to examine the purpose of the legislation and its effects in
determining whether it is “punitive” so as to constitute a double jeopardy violation.
Hudson, 

522 U.S. at 99

, 

118 S.Ct. at 493

, 

139 L.Ed.2d at 459

.




                                         6
                                  January Term, 1999




       {¶ 21} Under the two-part test reiterated in Hudson, the court must first ask
whether the legislature “ ‘in establishing the penalizing mechanism, indicated either
expressly or impliedly a preference for one label or the other.’ ” 

Id.,

 quoting Ward,

448 U.S. at 248

, 

100 S.Ct. at 2641

, 

65 L.Ed.2d at 749

. Second, even in those cases
where the legislature “ ‘has indicated an intention to establish a civil penalty, we
have inquired further whether the statutory scheme was so punitive either in
purpose or effect,’ * * * as to ‘transfor[m] what was clearly intended as a civil
remedy into a criminal penalty.’ ” (Citations omitted.) 

Id.

                             A.      Legislative Intent
       {¶ 22} One need only look to the statute to see that all of the money received
under R.C. 4511.191(L) is distributed to various remedial drug and alcohol
treatment and intervention funds, reparations and rehabilitation funds, and drug and
alcohol education programs. Former R.C. 4511.191(L)(2)(a)-(e). Further, the fact
that the Bureau of Motor Vehicles, an administrative agency, is granted the
authority to collect the reinstatement fee under R.C. 4511.191(L) is “prima facie
evidence that [the legislature] intended to provide for a civil sanction.” (Citations
omitted.) Hudson, 

522 U.S. at 103

, 

118 S.Ct. at 495

, 

139 L.Ed.2d at 461-462

.
       {¶ 23} This court noted in Gustafson that we have “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.”

Gustafson at 440

, 668 N.E.2d at 446. Further, we have stated that “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.” Hoban v. Rice (1971), 

25 Ohio St.2d 111, 114

, 

54 O.O.2d 254, 256

, 

267 N.E.2d 311, 314

.




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                              SUPREME COURT OF OHIO




        {¶ 24} Accordingly, we find that the legislature intended that the
reinstatement fee of R.C. 4511.191(L)(2) be civil in nature and remedial in purpose.
See Gustafson.
                              B.      Purpose or Effect
        {¶ 25} Even where the legislature indicates an intent to establish a civil
penalty, the second part of the Hudson analysis requires the court to inquire as to “
‘whether the statutory scheme [is] so punitive either in purpose or effect’ ” * * * as
to “ ‘transfor[m] what was clearly intended as a civil remedy into a criminal
penalty.’ ” (Citations omitted.) Hudson, 

522 U.S. at 99

, 

118 S.Ct. at 493

, 

139 L.Ed.2d at 459

. In order to analyze this prong of the test, it is helpful to refer to the
guidelines enunciated in Kennedy v. Mendoza-Martinez (1963), 

372 U.S. 144

, 168-
169, 

83 S.Ct. 554, 567-568

, 

9 L.Ed.2d 644

, 661: (1) “[w]hether the sanction
involves an affirmative disability or restraint,” (2) “whether it has historically been
regarded as a punishment,” (3) “whether it comes into play only on a finding of
scienter,” (4) “whether its operation will promote the traditional aims of
punishment—retribution and deterrence,” (5) “whether the behavior to which it
applies is already a crime,” (6) “whether an alternative purpose to which it may
rationally be connected is assignable for it,” and (7) “whether it appears excessive
in relation to the alternative purpose assigned.” Further, “ ‘only the clearest proof’
will suffice to override legislative intent and transform what has been denominated
a civil remedy into a criminal penalty.” (Citations omitted.) Hudson, 

522 U.S. at 99

, 

118 S.Ct. at 493

, 

139 L.Ed.2d at 459

, citing Ward, 

448 U.S. at 249

, 

100 S.Ct. at 2641-2642

, 

65 L.Ed.2d at 749

.
                  1.      Not an affirmative disability or restraint
        {¶ 26} We have held that “[i]n Ohio, a license to operate a motor vehicle is
a privilege, and not an absolute property right.” Doyle v. Ohio Bur. of Motor
Vehicles (1990), 

51 Ohio St.3d 46

, 

554 N.E.2d 97

, paragraph two of the syllabus.
In fact, it is not a substantial private interest, but a state-regulated privilege.




                                           8
                                    January Term, 1999




Maumee v. Gabriel (1988), 

35 Ohio St.3d 60, 63

, 

518 N.E.2d 558, 561

. Further,
while the driver is prohibited from driving until the fee is paid, it does not approach
the “ ‘ “infamous punishment” of imprisonment.’ ” Hudson, 

522 U.S. at 104

, 

118 S.Ct. at 496

, 

139 L.Ed.2d at 462

, quoting Flemming v. Nestor (1960), 

363 U.S. 603, 617

, 

80 S.Ct. 1367, 1376

, 

4 L.Ed.2d 1435, 1448

.
        {¶ 27} Therefore, the suspension of a privilege voluntarily granted does not
constitute an affirmative disability or restraint.
                  2.        Not historically regarded as punishment
        {¶ 28} In Hudson, the United States Supreme Court noted that it has long
been recognized that “ ‘revocation of a privilege voluntarily granted’ ” (such as a
driver’s license) is “ ‘characteristically free of the punitive criminal element.’ ”
Hudson, 

522 U.S. at 104

, 

118 S.Ct. at 495-496

, 

139 L.Ed.2d at 462

, quoting
Helvering v. Mitchell (1938), 

303 U.S. 391, 399

, 

58 S.Ct. 630, 633

, 

82 L.Ed. 917, 922

, and at fn. 2. Further, the court held that “ ‘the payment of fixed * * * sums of
money [is a] sanction which ha[s] been recognized as enforceable by civil
proceedings.’ ” 

Id.,

522 U.S. at 104

, 

118 S.Ct. at 496

, 

139 L.Ed.2d at 462

, quoting

Helvering at 400

, 

58 S.Ct. at 633

, 

82 L.Ed. at 922

.
        {¶ 29} Accordingly, the reinstatement fee cannot be said to have been
historically viewed as punishment.
                              3.       Scienter not required
        {¶ 30} Clearly, the reinstatement fee of R.C. 4511.191(L) is required for
any driver who wishes to reinstate his or her license, regardless of the driver’s state
of mind at the time of arrest for OMVI. Accordingly, the reinstatement fee
requirement is not dependent upon a finding of scienter.
                       4.          Not retribution and deterrence
        {¶ 31} The court of appeals below compared the reinstatement fee of R.C.
4511.191(L) to the tax imposed on confiscated illegal drugs in Dept. of Revenue of
Montana v. Kurth Ranch (1994), 

511 U.S. 767

, 

114 S.Ct. 1937

, 

128 L.Ed.2d 767

.




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                              SUPREME COURT OF OHIO




The appellate court found that the reinstatement fee represents an attempt to “exact
an additional monetary penalty from the accused, over and above the statutory fine
provided for a criminal conviction for OMVI.” We disagree.
       {¶ 32} The defendant in Kurth Ranch was required to pay the tax or face
the imposition of more serious penalties. Here, the reinstatement fee is voluntary.
The driver may choose whether or not to seek reinstatement. No state, civil, or
administrative action would be taken against the driver if he or she chose not to
reinstate his or her driving privileges, as long as he or she did not drive. See
Thompson v. State (1997), 

229 Ga.App. 526, 528

, 

494 S.E.2d 306, 308

. If the state
has the authority to revoke driving privileges as a remedial measure, then the state
may revoke such privileges subject to ability to reinstate the driving privileges upon
certain conditions. See 

id.

 This is no more than the suspension of a privilege
voluntarily granted.
       {¶ 33} Accordingly, the reinstatement fee associated with the ALS cannot
be said to promote retribution and deterrence.
            5.       Behavior to which it applies is not already a crime
       {¶ 34} Although OMVI is a criminal offense, the ALS is not a criminal
sanction. The fact that the OMVI charge may form the basis of the criminal offense
does not transform the ALS or the resulting reinstatement fee into a criminally
punitive sanction. See Herbst v. Voinovich (N.D.Ohio 1998), 

9 F.Supp.2d 828

, 835-
836. Further, to the extent that the underlying behavior is already a crime, “[t]his
fact is insufficient to render the money penalt[y] * * * criminally punitive.”
Hudson, 

522 U.S. at 105

, 

118 S.Ct. at 496

, 

139 L.Ed.2d at 462

.
       6.        Alternative purpose to which it may be rationally connected
       {¶ 35} As previously noted, the reinstatement fee is not merely used
administratively by the BMV to process the return of the license to the driver.
Instead, the funds generated from the reinstatement fee are deposited into the state
treasury and credited to driver treatment and intervention programs, the reparations




                                         10
                                  January Term, 1999




fund, the indigent drivers alcohol treatment fund, the Ohio Rehabilitation Services
Commission, and the state treasury to be used for drug abuse resistance education
programs. See former R.C. 4511.191(L)(2)(a)-(e).
        {¶ 36} Thus, the state has a compelling interest to promptly remove careless
drivers from the road as a public safety measure. Mackey v. Montrym (1979), 

443 U.S. 1, 17-18

, 

99 S.Ct. 2612, 2620-2621

, 

61 L.Ed.2d 321, 334

. “[T]he 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.”
Gustafson, 

76 Ohio St.3d at 446

, 

668 N.E.2d at 450

 (Douglas, J., concurring). This
unlawful conduct continues to be prevalent, as evidenced by the number of OMVI
cases that continue to flood the judicial system. 

Id.,

 76 Ohio St.3d at 447, 668
N.E.2d at 451 (Douglas, J., concurring).
       7.       Not excessive in relation to the alternative purpose assigned
        {¶ 37} The court of appeals found that the reinstatement fee “has no rational
relationship whatsoever to any remedial aspect and purpose of the implied consent
statute, which is to prevent persons from driving while a criminal case is pending.”
While the reinstatement fee of R.C. 4511.191(L) is not used solely for the
processing of the return of the license to the driver, we find that it is not
disproportionate to the harm caused by one operating a motor vehicle while under
the influence of drugs or alcohol.
        {¶ 38} In 1995, there were 17,274 alcohol-related traffic fatalities and
approximately 300,000 persons injured in alcohol-related crashes.2 In addition, in
1995, more than 1.4 million people were arrested for driving while intoxicated,
nearly ten percent of all arrests made that year.3 Approximately three in five




2. Alcohol Health & Res. World (Sept. 1, 1996) 219, citing National Highway Traffic Safety
Administration 1996b.
3. Id.




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                                 SUPREME COURT OF OHIO




Americans will be involved in an alcohol-related crash at some point in their lives.4
Alcohol-related traffic crashes cost society $45 billion annually in hospital costs,
rehabilitation expenses, and lost productivity.5
        {¶ 39} “When one considers the staggering costs to enforce our DUI laws,
to train the officers, to equip them with chemical tests, to pay them to patrol the
highways, to provide rescue services and medical attention for those who are
involved in alcohol-related accidents, and to initiate drug and alcohol awareness
programs, $250 does not seem grossly out of proportion to [the defendant’s] role in
contributing to this state-wide problem.”            State v. Schrock (Nov. 20, 1998),
Trumbull App. No. 97-T-0176, unreported.
        {¶ 40} Therefore, we find that the reinstatement fee of R.C. 4511.191(L)(2)
is not excessive in relation to the danger posed by impaired drivers.
        {¶ 41} Accordingly, we hold that the reinstatement fee of former R.C.
4511.191(L)(2) does not violate the Double Jeopardy Clause of the Fifth
Amendment to the United States Constitution or Section 10, Article I of the Ohio
Constitution.
        {¶ 42} We reverse the judgment of the court of appeals and remand the
cause to the trial court so that it may lift the stay on the reinstatement fee and order
that the defendant is required to pay it.
                                                                         Judgment reversed
                                                                       and cause remanded.
        MOYER, C.J., RESNICK and COOK, JJ., concur.
        DOUGLAS, J., concurs in judgment.
        F.E. SWEENEY and PFEIFER, JJ., dissent.


4. Id., citing National Highway Traffic Safety Administration and National Institute on Alcohol
Abuse and Alcoholism 1996.

5. Id., citing National Highway Traffic Safety Administration 1995a.




                                               12
                                January Term, 1999




                              __________________
       FRANCIS E. SWEENEY, SR., J., dissenting.
       {¶ 43} No test embraced by this court to determine whether a civil sanction
is punitive should undermine the basic principle that the Double Jeopardy Clause
prohibits multiple punishments for the same offense. State v. Gustafson (1996), 

76 Ohio St.3d 425, 432

, 

668 N.E.2d 435, 441

; North Carolina v. Pearce (1969), 

395 U.S. 711, 717

, 

89 S.Ct. 2072, 2076

, 

23 L.Ed.2d 656, 664-665

. Because I believe
that the $250 reinstatement fee sanctioned in former R.C. 4511.191(L) is punitive
in nature, it violates this basic principle.    Therefore, I would find that the
reinstatement fee violates the Double Jeopardy Clauses of the Fifth Amendment to
the United States Constitution and Section 10, Article I of the Ohio Constitution. I
would affirm the judgment of the court of appeals.
       {¶ 44} Sanctions imposed in civil proceedings have been found to violate
the Double Jeopardy Clause. See Hudson v. United States (1997), 

522 U.S. 93, 110

, 

118 S.Ct. 488, 499

, 

139 L.Ed.2d 450, 466-467

 (Stevens, J., concurring in
judgment), and cases cited therein. The concurring opinion recognized that these
cases reconfirmed the settled proposition that the government cannot use the civil
label to escape entirely the Double Jeopardy Clause’s command. The concurring
opinion notes that this proposition is extremely important because the states and
federal government have an enormous array of civil administrative sanctions at
their disposal. Thus, this provides government with the capability of punishing
persons repeatedly for the same offense, violating the bedrock double jeopardy
principle of finality. 

Id. at 110-111

, 

118 S.Ct. at 499

, 

139 L.Ed.2d at 466

.
       {¶ 45} Here, in order to get his license back after the administrative
suspension, the defendant was required to pay the reinstatement fee. This fee was
in addition to many other costs an offender is required to pay. R.C.
4511.191(D)(1)(a). For example, a fee was imposed after the court suspension,
along with the mandatory fine and court costs. R.C. 4507.45; 4511.99. Fees are




                                         13
                                  SUPREME COURT OF OHIO




also imposed on the impounded license plates.                  R.C. 4507.02(F)(1) and (2);
4503.10; 4503.19.         In some cases, impoundment/immobilization or vehicle
forfeiture penalties may be imposed. R.C. 4507.38; 4511.195.6 Thus, it becomes
painfully obvious that the additional $250 reinstatement fee cannot be viewed in
isolation as just a simple $250 fee. See State v. Gustafson (June 27, 1995),
Mahoning App. No. 94 C.A. 232, unreported, 

1995 WL 387619

, where that court
stressed that the reinstatement fee of former R.C. 4511.191(L) is “nothing more
than hidden taxes incorporated by the legislature without the vote of the people. *
* * Such costs could legitimately consume more than two weeks salary or wages
for someone working on a minimum wage schedule * * *.”
         {¶ 46} I recognize, and support, the very laudable purpose of the DUI laws,
which is to prevent dangerous drivers from being on the road. However, I am
concerned with the use of a superficial civil remedy to address the exigencies of the
present day drunk-driving problem. See United States v. Ursery (1996), 

518 U.S. 267, 300

, 

116 S.Ct. 2135, 2152

, 

135 L.Ed.2d 549, 574

 (Stevens, J., concurring in
judgment in part and dissenting in part). Moreover, I believe that governmental
action should be scrutinized very closely when government stands to gain with the
enforcement of a mandatory fee. See Harmelin v. Michigan (1991), 

501 U.S. 957, 979

, 

111 S.Ct. 2680, 2693

, 

115 L.Ed.2d 836, 854, fn. 9

 (“There is good reason to
be concerned that fines, uniquely of all punishments, will be imposed in a measure
out of accord with the penal goals of retribution and deterrence. Imprisonment,
corporal punishment, and even capital punishment cost a State money; fines are a
source of revenue. As we have recognized in the context of other constitutional
provisions, it makes sense to scrutinize governmental action more closely when the



6. In fact, the fees and procedures involved are so onerous that an attorney reference handbook
admits that “the procedure for the implementation of these penalties is a nightmare that could only
have been dreamt by the legislature.” (Emphasis sic.) Painter & Looker, Ohio Driving Under the
Influence Law (1998 Ed.) T.20.1, at 257.




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                                  January Term, 1999




State stands to benefit.”). The license reinstatement fee cannot withstand close
scrutiny. Therefore, I dissent.
       PFEIFER, J., concurs in the foregoing dissenting opinion.
                              __________________




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