State v. Toriello, 95

• Decision Date: 26 July 1995
• Docket Number: No. 95,95
• Citation: 654 N.E.2d 1075,71 Ohio Misc.2d 81
• Parties: The STATE of Ohio v. TORIELLO. TRC 11574.
• Court: Ohio Court of Common Pleas

Page 81

71 Ohio Misc.2d 81

654 N.E.2d 1075

The STATE of Ohio v. TORIELLO.

No. 95 TRC 11574.

Akron Municipal Court, Ohio.

Decided July 26, 1995.

Roger R. Bauer, for defendant.

COLOPY, Judge.

The case came to the court on defendant's motion to dismiss charges of violating R.C. 4511.19(A)(1) and 4511.19(A)(3) relating to an alleged offense involving operating a motor vehicle while under the influence of alcohol. The grounds for this motion are that the defendant has already had her driver's license suspended pursuant to the administrative license suspension ("ALS") provisions of R.C. 4511.191 and that further criminal prosecution would be a violation of the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution.

The court notes that this issue is now being litigated in municipal courts throughout the state and that opinions have been published which have reached opposite conclusions on this issue (State v. Uncapher [1995], 70 Ohio Misc.2d 4, 650 N.E.2d 195, prosecution after ALS suspension does not create double jeopardy; State v. Ackrouche [1995], 70 Ohio Misc.2d 34, 650 N.E.2d 535, ALS bars further criminal prosecution). The court also notes that the two Ohio courts of appeals which have considered this topic have reached different results (State v. Gustafson [June 27, 1995], Mahoning App. No. 94 C.A. 232, unreported, 1995 WL 387619, prosecution after ALS suspension violates double jeopardy; State v. Miller (May 12, 1995), Auglaize App. No. 2-94-32 unreported, 1995 WL 275770, no double jeopardy in prosecution after ALS suspension). The court is also aware that trial and appellate courts in a number of other jurisdictions have also considered this issue. Hawaii v. Higa (1995), 79 Hawai'i 1, 897 P.2d 928; State v. Hanson (Minn.App. 1995), 532 N.W.2d 598. The Seventh District Court of Appeals which decided the Gustafson case appears to be the only appellate court in the country which has found that prosecution for a D.U.I. offense after an automatic license suspension violates the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution.

The court has reviewed these cases, the arguments presented and the cases cited in the defendant's brief. It notes that at the present time, there is no published Ninth District or Ohio Supreme Court opinion on this issue. The defendants cite a number of recent United States Supreme Court cases as authority for the proposition that an ALS suspension bars subsequent prosecution for a D.U.I. offense. United States v. Halper (1989), 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487; Austin v. United States (1993), 509 U.S. 602, 113 S.Ct. 2801, 125 L.Ed.2d 488; Dept. of Revenue of Montana v. Kurth Ranch (1994), 511 U.S. 767, 114 S.Ct. 1937, 128 L.Ed.2d 767. In particular, the defendants rely on Kurth Ranch to support their position.

Kurth Ranch involved the imposition of a tax of almost $900,000 on marijuana grown in a large drug operation after the defendants had been convicted of criminal drug charges. The court noted that taxes on illegal activities are traditionally viewed as punitive and penal in nature rather than remedial. The court found that the size and rate of the tax was so disproportionate to the offense that it lost any function as a remedial or revenue-raising device. The court found that even though the imposition of the tax was a civil proceeding, it constituted a second punishment for the same offenses which were the basis for the earlier criminal charges. It therefore held that imposition of the marijuana tax after a criminal prosecution violated the Double Jeopardy Clause of the Fifth Amendment.

The court finds that the facts and circumstances of Kurth Ranch are distinguishable from an ALS suspension followed by a criminal prosecution for a D.U.I. offense. In the first place, the court finds that Kurth Ranch does not stand for the proposition that the imposition of a civil sanction which has any punitive purpose or impact bars subsequent criminal prosecution for the same conduct that led to the civil penalty, or vice versa.

The defendant cites United States v. $405,089.23 U.S. Currency (C.A.9, 1994), 33 F.3d 1210, as authority for that proposition. The court notes, however, that this federal Court of Appeals opinion from the Ninth Circuit is not binding on this court, and the case in question has not, as of yet, been reviewed by the United States Supreme Court.

The court also notes, along with Judge Randall of the Minnesota Court of Appeals, that to adopt the defendant's view that the imposition of civil sanctions which have any punitive character bars later criminal prosecution and penalties for the same conduct (or vice versa) would seriously call into question numerous administrative, environmental and licensing regulations and procedures on both the federal and state level. Hanson, supra, 532 N.W.2d at 604. This court does not believe that the rulings of the United States Supreme Court on double jeopardy imply this type of result.

A key issue for courts who have applied the holdings in Halper and Kurth Ranch to automatic license suspension/driving under the influence cases has been whether automatic license suspensions can be characterized as remedial or punitive in nature. The court acknowledges that an immediate license suspension after a D.U.I. arrest is intended both to punish the driver and to promote highway safety (see the concurring opinion of Judge Crippen in Hanson, supra, 532 N.W.2d at 606). The court, however, finds that there is a strong state interest in removing drunk drivers from...