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City Of Parma v. Saggio12/10/1998
JUDGMENT: AFFIRMED.
Defendant-appellant Daniel Saggio, Jr. appeals from his conviction for driving under the influence of alcohol in violation of R.C. 4511.19(A)(1). The court found that this was the appellant's third OMVI in the last five years. On December 16, 1997, the appellant was found guilty and sentenced to a term of incarceration of 90 days, 60 of which were suspended. In the alternative, the court ordered that the appellant may, in lieu of incarceration, serve a term in jail of 15 days and then 55 days of electronically monitored house arrest. The appellant was fined $1,200 and costs; had his driver's license suspended for three years, retroactive to the date of the arrest; was required to undergo mandatory alcohol treatment pursuant to R.C. 4511.99; was ordered to attend 3 Alcoholics Anonymous meetings/alcohol classes per week for one year; and was placed on probation for twenty-four months.
On January 5, 1997, the appellant was cited in count one for operating a vehicle while under the influence of alcohol; in count two for exceeding the speed limit (50 mph in a 25 mph zone); in count three for driving without headlights at night; and in count four for failing to utilize his seatbelt. The appellant refused to submit to a breath-alcohol test (BAC) and an automatic administrative license suspension (ALS) was imposed.
The docket and journal entries indicate that: 1) on January 8, 1997, the ALS suspension was lifted, however, the court imposed a twenty-one day driver's license suspension from January 8, 1997 through January 28, 1997; 2) the court suspended the appellant's driver's license for thirty days, from March 10, 1997 to April 8, 1997, but granted occupational driving privileges; 3) a one-hundred fifty-seven-day suspension was imposed, beginning April 8, 1997 through September 11, 1997, with occupational driving privileges granted; and, 4) a ninety-seven day suspension was imposed, beginning September 11, 1997 through December 16, 1997, with occupational driving privileges granted.
A motion to dismiss based upon double jeopardy was filed by the appellant on September 4, 1997. A supplemental motion was filed on December 15, 1997. Attached to the supplemental motion are exhibits demonstrating that the Ohio Bureau of Motor Vehicles acknowledged that the appellant had paid the $250 reinstatement fee and had supplied proof of insurance, but that the suspension of his driver's license remained in effect until January 5, 1998. Also attached as an exhibit is a reinstatement fee receipt dated December 4, 1997. On December 16, 1997, the court denied the motion to dismiss. The appellant entered a plea of no contest to count one, driving under the influence of alcohol, and counts two, three and four were nolled. The appellant was found guilty and sentenced as indicated above. The court granted a stay of execution of the sentence pending appeal.
The appellant asserts one assignment of error:
THE COURT COMMITTED PLAIN, PREJUDICIAL AND REVERSIBLE ERROR BY DENYING DEFENDANT'S MOTION TO DISMISS BASED ON DOUBLE JEOPARDY.
The appellant seemingly asserts that the sentence imposed by the court for driving under the influence of alcohol subjected him to double jeopardy. The appellant argues that since the reinstatement fee is in and of itself punitive, and not remedial, payment of the fee prior to the imposition of the criminal sentence subjected him to double jeopardy.
This analysis must begin with State v. Gustafson (1996), 76 Ohio St.3d 425, at syllabus one, where the Ohio Supreme Court found it permissible to impose an ALS suspension and still prosecute a motorist for driving under the influence of alcoh
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