685 N.E.2d 866 (Ohio Co. 1997), 9600971, State v. Clark

Docket Nº:9600971-A, 9600971-B.
Citation:685 N.E.2d 866, 86 Ohio Misc.2d 105
Opinion Judge:RONALD JAMES RICE, Judge.
Party Name:The STATE of Ohio v. CLARK. [*]
Attorney:James A. O'Brien, Brookfield, for the defendant., ON MOTION TO DISMISS. [86 Ohio Misc.2d 106] Kenneth Inskeep, Trumbull County Assistant Prosecuting Attorney, for the state. James A. O'Brien, Brookfield, for the defendant.
Case Date:July 14, 1997
Court:County Court of Ohio

Page 866

685 N.E.2d 866 (Ohio Co. 1997)

86 Ohio Misc.2d 105

The STATE of Ohio


CLARK. [*]

Nos. 9600971-A, 9600971-B.

Trumbull County Court of Ohio. Eastern District, Brookfield.

July 14, 1997

Page 867

[86 Ohio Misc.2d 106] Kenneth Inskeep, Trumbull County Assistant Prosecuting Attorney, for the state.

James A. O'Brien, Brookfield, for the defendant.



This matter comes before the court on the defendant's motion to dismiss as filed on March 27, 1997. Both parties were granted time to file briefs on arguments of facts and law.

The defendant, Robert Clark, was arrested by the Ohio State Highway Patrol on November 30, 1996. The defendant 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 breath-alcohol concentration, in violation of R.C. 4511.19(A)(1) and (3), respectively ("DUI"). In addition, the arresting officer, acting pursuant to the provisions of R.C. 4511.191, the implied- [86 Ohio Misc.2d 107] statute, notified the defendant that he was being placed under an administrative license suspension ("ALS"), which had the effect of immediately stripping the defendant of his right to operate a motor vehicle in Ohio.

The defendant, through his legal counsel, has moved to dismiss the DUI charges. The defendant's motion to dismiss is based upon defendant's belief that the institution of this prosecution subjects defendant to the possibility of successive punishment. The defendant maintains that because he has already paid the $250 reinstatement fee and has had his license suspended for ninety days, he has already been punished by the state, and that any subsequent action by the state would create the possibility of double punishment for the same offense. Such a possibility, defendant claims, violates the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution.

The state for its part urges that the protection provided by the Fifth Amendment and Section 10, Articles I of the Ohio Constitution, which mirrors the United States Constitution's protection against double jeopardy, are inapplicable to the matter now before this court. In addition, the state maintains that the $250 license reinstatement fee does not serve as a punishment at all, but, rather, serves only as a remedial function of protection.

The issues this court must decide are as follows: (1) do the payment of a $250 license reinstatement fee and suspension of a license pursuant to R.C. 4511.191 constitute a punishment or are they remedial measures taken by the state? and (2) if the actual payment constitutes a punishment, is the state prohibited from bringing a subsequent criminal action against the defendant under the Double Jeopardy Clauses of the Ohio and the United States Constitutions?

A recent Ohio Supreme Court decision, State v. Gustafson (1996), 76 Ohio St.3d 425, 668 N.E.2d 435, addressed the issue of ALS constituting double jeopardy. The defendants in Gustafson were charged with driving under the influence of intoxicating substances and automatically had their licenses suspended pursuant to R.C. 4511.191. The defendants argued the automatic license suspension constituted a punishment and the state was therefore barred from bringing any subsequent prosecutions under the Double Jeopardy Clauses of the Ohio and United States Constitutions.

The Gustafson court held that because an ALS...

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