Appellant Anthony L. Kilbarger appeals a judgment of the Lancaster Municipal Court convicting him of driving while intoxicated (R.C. 4511.19)(A)(1)), and driving under suspension (R.C. 4507.02 (D)(1)):

ASSIGNMENTS OF ERROR

I. THE STATE OF OHIO FAILED TO PROVIDE THE EXPERT TESTIMONY REQUIRED BY NEWARK V. LUCAS, 40 OHIO ST. 3D 100 (1988), AND IT WAS, THEREFORE, ERROR FOR THE TRIAL COURT TO ADMIT THE BREATH ALCOHOL TEST IN EVIDENCE.

II. IMPOSITION OF DEFENDANT-APPELLANT'S SENTENCE IN THIS CASE VIOLATES THE DOUBLE JEOPARDY CLAUSES OF BOTH THE OHIO AND UNITED STATES CONSTITUTIONS.

On May 30, 1997, appellant was involved in a single car accident when his pickup truck went off the right side of the roadway on U.S. Route 33. The truck struck an embankment, and suffered heavy damage. From observation of appellant and the administration of field sobriety tests, the State Trooper investigating the accident determined that appellant was impaired by alcohol. A check of the Bureau of Motor Vehicle's record revealed that appellant's license had been suspended from June 13, 1995, through June 5, 2004.¹ Appellant was taken to the State Highway Patrol Post, where he was administered a breath alcohol test. The test revealed .191 grams of alcohol by weight per 210 liters of his breath. Appellant was then charged with driving under the influence of alcohol, driving with a prohibited breath alcohol content, driving under suspension, and failure to control. Additionally, he was placed under an administrative license suspension for testing over the prohibited level.

Appellant appealed the ALS suspension. He also filed a motion to suppress the results of the breath test. He later amended the motion to suppress to include an allegation that the breath test was administered more than two hours after the accident.

A suppression hearing was scheduled August 28, 1997. While the parties represent to this court that the ALS appeal was heard at the same time, no transcript of this hearing was requested or prepared. Subsequent to the hearing date, the court filed an entry finding that the State did not establish that the breath test was obtained within two hours of the accident. The court dismissed the charge of driving with a prohibited breath alcohol content pursuant to R.C. 4511.19 (A)(3). The court did not rule on the ALS.

After many continuances, the trial commenced on March 31, 1998. The charge of driving under the influence of alcohol was tried to the jury. The charge of driving under suspension was tried to the court. At trial, the State used evidence of appellant's breath test results by way of expert testimony, pursuant to Newark v. Lucas (1988), 40 Ohio St.3d 100.

Following trial, appellant was convicted on both charges. On the conviction for driving under the influence of alcohol, he was fined $1000, and sentenced to one year incarceration. Further, his driver's license was suspended for ten years, from May 30, 1997 to May 30, 2007, as this was his third DUI offense in six years. Thirty days of the incarceration was suspended on condition of good behavior and total sobriety. On the charge of driving under suspension, appellant was sentenced to thirty days incarceration, consecutive to the driving under the influence charge. He was fined $250.

In a criminal prosecution for violation R.C. 4511.19 (A)(1), the results of a properly administered bodily substances test, presented with expert testimony, may be admitted into evidence despite the fact that bodily substance was withdrawn more than two hours from the time of the alleged violation. Newark v.Lucas, supra, at syllabus two. The results are admissible if expert testimony is presented to relate the test results to the defendant and the time of the alleged violation, as well as to relate the test results to a common understanding of what it means to be under the influence of alcohol. Id., at 105.

The expert was asked to assume the accident occurred around 5:00 to 5:05 p.m. There is evidence in the record to support this assumption. Although the exact time of the crash was never pinpointed, there was testimony that appellant left the drilling rig where he worked at around 4:30 p.m. Tr. 533. There was evidence presented that the point of the accident was approximately a twenty-five to thirty minute drive from the rig. Tr. 538. Further, there was evidence that the police were notified of the crash around 5:50 p.m. From this evidence, an assumption can be drawn for use by the expert that the accident occurred around 5:00.

Evidence as to appellant's height and weight was drawn from his driver's license. Although the figures on a person's driver's license may be inaccurate, a challenge to these numbers goes to the weight of the evidence in the instant case, rather than its admissibility. Appellant was given an opportunity to cross-examine the expert concerning issues such as height and weight.

Appellant's claim that Dr. Sutheiner's use of three scenarios renders the evidence speculative and inadmissible as clearly without merit. The scenarios presented by the expert related to the level of impairment appellant would have had at the job site earlier that day if he consumed alcohol before going to work, at lunch time, or shortly around the time he left work. The doctor ultimately concluded that regardless of the scenarios used, relating the blood-alcohol level at the time of the test back to the approximate time of the accident, based on appellant's height and weight, appellant's alcohol concentration would have been approximately .230 grams of alcohol at the time of the accident. He further testified that at this level of impairment, appellant would have had difficulty sensing distance and speed, delayed action, slowness of speech, alteration of muscular functions, difficulty walking straight, sleepiness, and difficulty with balance.

There was sufficient foundation evidence admitted to support admission of the breath alcohol test into evidence. The issues raised by appellant go to the weight of the evidence, not as admissibility.

The first assignment of error is overruled.

As noted by the State in its brief, the ALS suspension was lifted by the court on the date of conviction and sentencing. Therefore, the only issue remaining in the case is whether the continuation of the ALS suspension from the dates of the suppression of the breath results and dismissal of the per se violation charge prohibited the court from sentencing him on the conviction for driving under the influence of alcohol.

We note that although the parties represent the ALS appeal was heard at the same time as the suppression, a transcript of this hearing was not requested or prepared. Although the court later filed a judgment concerning the suppression motion, the court did not file a judgment overruling or sustaining the appeal of the ALS suspension.

The issue before this court is whether the court was required to vacate the ALS suspension on the day he suppressed the breath alcohol test and dismissed the charge of driving with a prohibited breath alcohol level. R.C. 4511.191 (H)(1) specifies the sole grounds for appeal of an ALS suspension:

If the person appeals the suspension at the person's initial appearance, the scope of the appeal is limited to determining whether one or more of the following conditions have not been met:

(a) Whether the law enforcement officer had reasonable ground to believe the arrested person was operating a vehicle upon a highway or public or private property used by the public for vehicular travel or parking within this state while under the influence of alcohol, a drug of abuse, or alcohol and a drug of abuse or with a prohibited concentration of alcohol in the blood, breath, or urine and whether the arrested person was in fact placed under arrest;

(b) Whether the law enforcement officer requested the arrested person to submit to the chemical test designated pursuant to division (A) of this section;

(c) Whether the arresting officer informed the arrested person of the consequences of refusing to be tested or of submitting to the test;

(d) Whichever of the following is applicable:

(i) Whether the arrested person refused to submit to the chemical test requested by the officer;

(ii) Whether the chemical test results indicate that the arrested person's blood contained a concentration of ten-hundredths of one per cent or more by weight of alcohol, the person's breath contained a concentration of ten-hundredths of one gram or more by weight of alcohol per two hundred ten liters of the person's breath, or the person's urine contained a concentration of fourteen-hundreds of one gram or more by weight of alcohol per one hundred milliliters of the person's urine at the time of the alleged offense.

Appellant must now argue that Subsection (d)(ii) was not complied with in the instant case, because he did not test .10 on a valid breath alcohol test. We disagree with this argument, as the suppression in this case was based on violation of the two-hour limit rule. The Ohio Supreme Court recognized inNewark v. Lucas, supra, that while a breath-test drawn outside the two-hour limit may not be used to support a per se conviction under R.C. 4511.19 (A)(3), this test possesses enough reliability that it may be admissible in the driving under the influence prosecution as one element to demonstrate impairment, if the requisite expert testimony relates the result back to the time of the accident. Violation of a two-hour time limitation is not as crucial to the accuracy of the results as compliance with Department of Health regulations concerning issues such as calibration, qualification of the operator, and proper maintenance and operation of the testing machine. Therefore, suppression of the test in the instant case in the per se violation did not require its suppression in the driving under the influence charge, and the result was in fact admitted into evidence at trial.

Following suppression and dismissal of the (A)(3) charge, the State notified appellant of its intent to use the test result in the remaining prosecution, causing appellant to file a second motion to suppress. Because it is apparent from the record that the test result was going to be used through the proper admission of expert testimony, as discussed above, we conclude that appellant has not demonstrated that he proved by a preponderance of the evidence, as required by R.C. 4511.191(H)(2), that one of the requirements set forth above was not complied with. As the court was not required by law to terminate the ALS suspension upon suppression of the breath test results in the instant case, the ten-year license suspension to which appellant was sentenced by reason of the instant conviction does not violate double jeopardy.

The second assignment of error is overruled.

The judgment of the Lancaster Municipal Court is affirmed.

By Gwin, P.J., Edwards, J., concurs separately

Hoffman, J., concurs in part; dissents in part.

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¹ Later investigation into the state of appellant's driving privileges revealed that appellant had received occupational privileges, which required that he not drive while intoxicated.

I concur in the majority's analysis and disposition of appellant's first assignment of error. I respectfully dissent from the majority's disposition of appellant's second assignment of error. My reasons follow.

The majority concludes appellant did not prove by a preponderance of the evidence R.C. 4511.191 (H)(1)(d)(ii) was not complied with. It does so apparently because the subject test result, although ordered suppressed by the trial court resulting in dismissal of the (A)(3), ". . . was going to be used [at trial] through the proper admission of expert testimony." (Majority Opinion at 8). Therefore, the majority reasons, the trial court ". . . was not required by law to terminate the ALS suspension upon suppression of the breath test results . . . [and] . . . the ten year license suspension to which appellant was sentenced by reason of the instant conviction does not violate double jeopardy." (Majority Opinion at 8).

I fail to see what relevance appellee's notice of its intent to use the test result in the ensuing (A)(1) trial has to do with whether appellant proved R.C. 4511.191 (H)(1)(d)(ii) was not met at the ALS appeal hearing. The ALS appeal hearing was conducted simultaneously with the suppression hearing andprior to trial. No expert appeared at the ALS appeal hearing to establish appellant's breath was over the legal limit at the time of the alleged offense. The fact appellee notified appellant of its intent to use an expert at trial to lay a foundation for admission of the test result is inconsequential. The (A)(1) prosecution could be maintained with or without such expert testimony. What if the expert failed to lay a proper foundation for admission of the test result, but the jury, nevertheless, found appellant guilty of the (A)(1) offense? I presume the majority would then conclude double jeopardy would attach. To determine whether double jeopardy attaches based upon whether the test result is admitted into evidence in a subsequent, separate prosecution, I believe begs the question. The ppoper question is whether the continued recognition of the ALS suspension subsequent to the appeal hearing bars additional punishment upon appellant's conviction of the (A)(1) charge. I conclude it does.

Unlike the majority, I believe the ALS suspension should have terminated the same day the trial court suppressed the test result. Because it did not, I find the continued recognition of the ALS suspension after the suppression of the test result, and the dismissal of the (A)(3) charge until the trial court sentenced appellant on the (A)(1) charge constitutes punishment when applying the analysis of the Ohio Supreme Court inState v. Gustafson (1996), 760 Ohio St.3d 425. Upon determining the test result was inadmissible at the combined ALS appeal and the suppression hearings, the continued recognition of the ". . . administrative license suspension crosses the line, transforming an initially remedial license suspension into a punishment for double jeopardy purposes . . ." Id. at 442.

I agree with the rationale and conclusion reached by my brethren in the Eighth District Court of Appeals in Seven Hillsv. Wankewycz (1996), 114 Ohio App.3d 652. Therein, the court held ". . . the continuing ALS crossed the line . . . and became punishment for double jeopardy purposes. [citation omitted]. . . Accordingly, we affirm the conviction for DUI but terminate the sentence . . . because Wankewycz has already been punished for that conduct." Id. at 654. I believe the instant case mandates the same result.

--------------------------- JUDGE WILLIAM B. HOFFMAN

I concur in the finding that the failure of the trial court to terminate the administrative license suspension (ALS) prior to conviction and sentencing did not violate double jeopardy. However, I am unwilling to presume what occurred at the ALS hearing without a transcript of that proceeding.

State v. Gustafson (1996) 76 Ohio St.3d 425 made it clear that the ALS is remedial in nature and does not become punitive in nature unless it continues subsequent to adjudication and sentencing for violation of R.C. 4511.19. Therefore, even if the ALS continued because the trial court failed to make a ruling on whether the ALS should be lifted, the suspension is still remedial in nature. The ALS is not punishment for a criminal conviction. It is a short term license suspension based on the law enforcement officer's reasonable grounds to believe that the appellant was under the influence of alcohol when operating a motor vehicle and that the chemical test results from the appellant indicated appellant was under the influence of alcohol at the time of the alleged offense.

In addition, it is clear from R.C. 4511.191(H)(1) that the trial court may continue the ALS appeal hearing upon its own motion. The case at bar presents an appropriate circumstance for the trial court to continue the ALS hearing to the day of trial. Since the chemical test on the appellant was done at a time considerably after the alleged offense, the State had to prove its case against the appellant by reconstructing the events prior to and after the event and had to obtain an expert to testify about the rate the body dissipates alcohol. This type of evidence is somewhat difficult to put together quickly but it is the same type of evidence that the State would need to present at an ALS hearing in response to appellant's establishing that the chemical test was not taken at the time of the offense.

There is no doubt that the trial court should have issued a ruling one way or the other on the issue of the ALS or should have done an entry continuing the issue for further hearing. However, for the reasons stated above, the ALS from the date of the hearing appealing that suspension to the date of the conviction and sentencing of the appellant on R.C.4511.19(A)(1) did not constitute double jeopardy.

------------------------ JUDGE JULIE A. EDWARDS

For the reasons stated in the Memorandum-Opinion on file, the judgment of the Lancaster Municipal Court is affirmed.

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