State v. David F. Hirsch

• Decision Date: 10 December 1999
• Docket Number: 98-P-0084,99-LW-6159
• Parties: STATE OF OHIO, Plaintiff-Appellee v. DAVID F. HIRSCH, Defendant-Appellant. CASE
• Court: Ohio Court of Appeals

STATE OF OHIO, Plaintiff-Appellee v. DAVID F. HIRSCH, Defendant-Appellant.

No. 98-P-0084

99-LW-6159 (11th)

Court of Appeals of Ohio, Eleventh District, Portage County.

December 10, 1999

Criminal Appeal from the Portage County Municipal Court Ravenna Division Case No. R 97 TRC 9958

HON JUDITH A. CHRISTLEY, P. J., HON. ROBERT A. NADER, J., HON WILLIAM M. O'NEILL, J.

VICTOR V. VIGLUICCI, PORTAGE COUNTY PROSECUTOR, KELLI K. NORMAN ASSISTANT PROSECUTOR, 466 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee)

ATTY JERRY G. ROUBENES, 2500 First National Tower, Akron, OH 44308 (For Defendant-Appellant)

OPINION

NADER J.

Appellant, David Hirsch, appeals his conviction issued by the Portage County Municipal Court, finding him guilty of driving with a prohibited breath alcohol concentration, in violation of R.C. 4511.19(A)(3).

On June 12, 1997, appellant was arrested for driving under the influence of alcohol, in violation of R.C. 4511.19(A)(1), driving with a prohibited breath alcohol concentration, in violation of R.C. 4511.19(A)(3), and speeding, in violation of R.C. 4511.21(C). On June 13, 1997, appellant entered a plea of not guilty and was placed under an administrative license suspension ("ALS"). On July 16, 1997, appellant moved to continue the pretrial set for July 24, 1997. The trial court granted a continuance and set the pretrial for August 28, 1997. At the pretrial, appellant's attorney signed a pre-trial report with a box checked next to the following waiver: "Defendant hereby waives the statutory time limits of Ohio Revised Code Section 2945.71."

A trial date was then set for September 22, 1997. On September 19, 1997, appellant filed a motion to continue the trial and included another waiver, which stated: "Defendant hereby waives the statutory time limits prescribed in Section 2945.71 with respect to this continuance." On October 16, 1997, appellant filed a motion to suppress, which was set for hearing on December 12, 1997. On November 10, 1997, the State moved to continue the suppression hearing to a later date because the arresting officer, the State's only witness, would be unavailable due to S.W.A.T. training. The trial court granted the State's motion for continuance and reset the suppression hearing for January 21, 1998.

On January 14, 1998, the State again moved to continue the suppression hearing because of the unavailability of the arresting officer. The trial court granted the State's continuance and reset the suppression hearing for April 2, 1998. On April 2, 1998, the trial court held the suppression hearing. Before the hearing, appellant moved to dismiss, claiming that the doctrine of double jeopardy bars further punishment for the offense of driving with a prohibited breath alcohol concentration because appellant had already paid a $250 license reinstatement fee. The trial court denied both the motion to suppress and the motion to dismiss and set a trial date for June 2, 1998. On May 26, 1998, the State filed a motion to continue the trial due to the unavailability of the arresting officer. The trial court granted the State's motion and reset the trial for July 23, 1998. On July 23, 1998, appellant and his counsel failed to appear for trial. The next day, appellant moved to dismiss, claiming a violation of his statutory speedy trial rights. The trial court denied appellant's motion to dismiss, and then appellant pleaded no contest to driving with a prohibited breath alcohol concentration, in violation of R.C. 4511.19(A)(3). The court dismissed the other counts. From this judgment, appellant assigns the following errors:

"[1.] The trial court erred in overruling defendant's motion to dismiss on the grounds of double jeopardy in violation of the Ohio and U.S. Constitutions.

"[2.] The trial court erred in overruling defendant-appellant's motion to dismiss upon the state's failure to comply with the provisions of R.C. 2945.71 and 2945.73 Ohio Revised Code (Speedy Trial)."

In his first assignment of error, appellant alleges that the trial court erred by denying his motion to dismiss on the grounds of double jeopardy. Appellant contends that because he paid a $250 fee pursuant to R.C. 4511.191(L) to reinstate his driver's licence after his adminstrative license suspension, the doctrine of double jeopardy bars further punishment for the offense of driving with a prohibited breath alcohol concentration. Appellant urges this court to follow State v. Clark (1997), 86 Ohio Misc.2d 105, 685 N.E.2d 866, an opinion by the Trumbull County Court, Eastern Division, holding that a person who pays a license reinstatement fee after an ALS has ended cannot subsequently be sentenced for a violation of R.C. 4511.19.

In City of Warren v. Schrock (Nov. 20, 1998), Trumbull App. No. 97-T-0176, unreported, we refused to follow Clark and held that the payment of a $250 license reinstatement fee does not constitute a "punishment" for double jeopardy purposes, as we had previously held in State v. Hlavin (Jan. 19 1996), Geauga App. No. 95-G-1912, unreported. Because double jeopardy does not bar the prosecution for a violation of...