
    CITY OF CLEVELAND v. NUTTER.
    Cleveland County Municipal Court.
    No. 94TRC67888.
    Decided Jan. 3, 1995.
    
      
      Anita Laster, Assistant City Prosecutor, for plaintiff.
    
      Newman, Olson & Kerr and Martin S. Delahunty III, for defendant.
   Ronald B. Adkine, Judge.

The defendant, Daniel Nutter, was arrested by the Cleveland Police Division on September 30, 1994. He was thereafter charged with operating a motor vehicle while under the influence of alcohol and/or a drug of abuse, and operating a motor vehicle with a prohibited blood-alcohol concentration, in violation of Cleveland Codified Ordinance 433.01(A)(1) and 433.01(A)(4), respectively. (The violations will be referred to hereinafter collectively as “DUL”) In addition, the arresting officer, acting pursuant to the provisions of R.C. 4511.191, the state’s Implied Consent Act, notified the defendant that he was being placed under an administrative license suspension (hereinafter “ALS”), which had the effect of immediately stripping the defendant of his right to operate a motor vehicle in Ohio.

The instant complaint was filed with this court on October 1, 1994. Following his arraignment, the defendant filed this motion, seeking the dismissal of the complaint.

The defendant’s motion to dismiss is based upon his belief that the institution of this prosecution subjects him to the possibility of successive punishment. Such a possibility, he says, violates the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution. He reasons that this constitutional violation is impermissible and necessitates the dismissal of all of the charges pending against him which have resulted from this arrest.

The prosecution for its part urges that the protections of the Fifth Amendment and Section 10, Article I of the Ohio Constitution (which mirrors the federal Constitution’s protections against double jeopardy), apply only to criminal charges. Since the defendant’s ALS was civil and administrative in nature, the prosecution argues, the double jeopardy protections upon which the defendant relies are inapplicable to the matters now before this court. Additionally, the prosecution maintains that the ALS does not serve as a punishment at all, but, rather, serves only a remedial function.

The double jeopardy questions which the defendant raises involve due process rights which are guaranteed to , him under both the state and federal Constitutions. The guarantees, contained in Sections 1, 16, and 19 of Article I of the Ohio Constitution, are substantially equivalent to the due process guarantees of the United States Constitution as applied to the states by the Fourteenth Amendment. State ex rel. Heller v. Miller (1980), 61 Ohio St.2d 6, 15 O.O.3d 3, 399 N.E.2d 66. The Ohio Supreme Court has accordingly held that United States Supreme Court decisions may be utilized to interpret the Ohio guarantees. Peebles v. Clement (1980), 63 Ohio St.2d 314, 17 O.O.3d 203, 408 N.E.2d 689.

It should be noted that the arguments which the defendant raises are specific to his situation and speak only to the violation of his individual constitutional rights. The defendant has not argued against the facial unconstitutionality of either the implied consent or the DUI statutes. This court is, however, mindful of the fact that everyone upon whom a pretrial license suspension is imposed pursuant to the operation of the implied consent statute is similarly situated to this defendant and, therefore, is in a position to raise the identical issues.

The defendant’s characterization of his ALS as punishment raises an important question for resolution: Did the immediate suspension of the defendant’s driving privilege, or for that matter, even a suspension after hearing, constitute a punishment which triggered a double jeopardy impediment to any further governmental enforcement action?

The defendant argues that the state’s prior administrative suspension of his driver’s license constituted a separate proceeding which resulted in the imposition of a punishment. He takes the position that the imposition of that prior punishment now prevents the city of Cleveland from maintaining this criminal prosecution.

Decisions of the Ohio Supreme Court make it clear that a license suspension proceeding is, in fact, civil and administrative, as well as separate and independent, from any criminal prosecution. See Hoban v. Rice (1971), 25 Ohio St.2d 111, 54 O.O.2d 254, 267 N.E.2d 311, and State v. Starnes (1970), 21 Ohio St.2d 38, 50 O.O.2d 84, 254 N.E.2d 675. The prosecution in this case has not argued otherwise. It is equally clear that if this court determines that the suspension of the defendant’s driving privilege is a punishment, the fact that the suspension was handed down in a non-criminal proceeding will not bar the application of the Fifth Amendment’s prohibition against multiple punishments to this defendant’s situation. See United States v. Halper (1989), 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487.

The Double Jeopardy Clause of the Constitution’s Fifth Amendment provides, in pertinent part:

“ * * * nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb * *

Section 10, Article I of the Ohio Constitution mirrors the protection afforded under the federal Constitution by employing similar language, to wit:

“No person shall be twice put in jeopardy for the same offense.”

The punishment thrust of the defendant’s double jeopardy argument hangs on his interpretation and application of two fairly recent decisions of the United States Supreme Court: United States v. Halper, supra, and Montana Dept. of Revenue v. Kurth Ranch (1994), 511 U.S.-, 114 S.Ct. 38, 125 L.Ed.2d 788. The Halper court said, inter alia:

“This Court many times has held that the Double Jeopardy Clause protects against three distinct abuses: a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense. See, e.g., North Carolina v. Pearce, 395 U.S. 711, 717 [89 S.Ct. 2072, 2076, 23 L.Ed.2d 656, 664-665] (1969). The third of these protections — the one at issue here — has deep roots in our history and jurisprudence.” 490 U.S. at 440, 109 S.Ct. at 1897, 104 L.Ed.2d at 496.

The defendant in Halper was convicted of Medicare fraud. The United States subsequently brought a civil action against him under the False Claims Act, seeking additional civil penalties in the amount of $130,000. The United States Supreme Court held that a civil sanction that cannot fairly be said to solely serve a remedial purpose, but rather can be explained only as serving either retributive or deterrent purposes, is punishment for purposes of the Double Jeopardy Clause of the federal Constitution’s Fifth Amendment.

In Kurth Ranch, supra, the Supreme Court held that a Montana state proceeding to collect a tax imposed on confiscated illegal contraband drugs “was the functional equivalent of a successive criminal prosecution” that put the defendants in jeopardy a second time for the same offense. The tax which Montana sought to collect in that case was required only subsequent to an individual’s arrest. For the Kurth Ranch defendants, the tax assessed was eight times greater than the market value of the confiscated contraband. The court’s majority adopted the “inescapable conclusion” of the bankruptcy court that the purpose of Montana’s drug tax statute was deterrence and punishment, rather than remedial.

Halper, Kurth Ranch, and the other cases cited by the defendant are easily distinguishable on their facts from the case at bar. In those cases, the government attempted to exact an additional monetary penalty from the defendants, over and above that which they would have been caused to suffer as a result of any criminal conviction for the same activity. See, also, the discussion of the history of forfeiture laws in general and of the forfeiture law involved in Austin v. United States (1993), 509 U.S.-,-, 113 S.Ct. 2801, 2812, 125 L.Ed.2d 488, 505-506. There has been no such attempt to exact a monetary penalty from the defendant at bar.

Certainly, the defendant’s driving privilege, which the state has previously suspended, was no less valuable to him than the money that the defendants in the above-cited cases stood to lose. However, a crucial difference between his situation and theirs is that the Ohio Supreme Court has already spoken to the issue of license suspension as penalty in the context of an implied consent violation.

In Doyle v. Ohio Bur. of Motor Vehicles (1990), 51 Ohio St.3d 46, 54, 554 N.E.2d 97, 104, the Ohio Supreme Court addressed the state’s compelling interest in highway safety by saying: “We conclude that the state has a paramount interest in promoting public safety by removing drunk drivers from the highways.” The court reiterated its strong feelings on this matter in Columbus v. Adams (1984), 10 Ohio St.3d 57, 60, 10 OBR 348, 350, 461 N.E.2d 887, 890:

“The interests advanced * * * are of such a nature and importance that the inconvenience occasioned by the temporary suspension of driving privileges pales by comparison.”

In Andrews v. Turner (1977), 52 Ohio St.2d 31, 35-36, 6 O.O.3d 149, 151, 368 N.E.2d 1253, 1256, the Ohio Supreme Court said:

“R.C. 4511.191, the implied-consent statute, is ‘a legislative response to the mischief of drunken drivers.’ State v. Hurbean (1970), 23 Ohio App.2d 119, 131 [52 O.O.2d 152, 159, 261 N.E.2d 290, 300]. The general purpose of the statute is ‘the protection of the public * * *. We construe the statute to suppress the mischief and advance the remedy.’” (Footnote omitted.)

In a footnote found in the same opinion, the court went on to say that rather than a penalty, the requirements of the statute actually served as a benefit to some who are charged with DUI. Id. at 35, 6 O.O.3d at 151, 368 N.E.2d at 1256, fn. 3.

In State v. Starnes, supra, 21 Ohio St.2d at 45, 50 O.O.2d at 88, 254 N.E.2d at 679, the Ohio Supreme Court cited with approval Blow v. Commr. of Motor Vehicles (1969), 83 S.D. 628, 632, 164 N.W.2d 351, 353:

“ * * * ‘The purpose of the suspension or revocation is to protect the public and not to punish the licensee. * * * ’ ”

In light of the fact that the Ohio Supreme Court has already declared the suspension of driver’s licenses to be remedial in nature and not punishment, the defendant’s double jeopardy argument in that regard is unavailing and must fail.

Conclusions of Law

Upon thorough review of all of the facts and circumstances presented, the court finds that under the decisions of the United States Supreme Court and the Supreme Court of Ohio, the suspension of the defendant’s driving privilege pursuant to the provisions of R.C. 4511.191 is a remedial action for the safety of the public. The Ohio Supreme Court has explicitly said that such a suspension is not punishment. Therefore, the defendant’s suspension by operation of the provisions of the statute cannot be fairly characterized in any meaningful way as punishment.

Because the suspension of the defendant’s driver’s license did not constitute a punishment, he has not been once in jeopardy, for purposes of a Fifth Amendment analysis. He is, therefore, still required to respond to the outstanding complaints for DUI which remain pending in this court.

JUDGMENT ENTRY

Upon due consideration, the court finds that the defendant’s motion to dismiss is not well taken. It is, therefore, denied.

So ordered.  