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Herbert v. Billy

November 20, 1998

THOMAS J. HERBERT (97-4287); NICOLE R. GREEN; THOMAS G. MORGAN; THOMAS L. MAGELANER; DENISE NIBERT; GEORGE H. GROSSER; JOHN T. WEBER; ALLISON M. BYRNE-NUCERINO; JACK C. BUTLER; ORLANDO WILBORN (97-4288), PETITIONERS-APPELLANTS,
v.
GERRY BILLY, LICKING COUNTY SHERIFF, ET AL. (97-4287); JAMES A. KARNES, FRANKLIN COUNTY SHERIFF; AL MYERS, DELAWARE COUNTY SHERIFF (97-4288), RESPONDENTS-APPELLEES.



Appeal from the United States District Court for the Southern District of Ohio at Columbus. Nos. 96-01232, 96-01301, 96-01302, 96-01303, 96-01394, 96-01314, 96-01315, 97-00002, 97-00276, 97-00351-Edmund A. Sargus, Jr., District Judge.

Before: Nelson and Norris, Circuit Judges; Gwin, *fn1 District Judge.

The opinion of the court was delivered by: James S. Gwin, District Judge.

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 24

File Name: 98a0342p.06

Argued: October 7, 1998,

OPINION

In this appeal, Appellants Thomas J. Herbert, Nicole R. Green, Thomas G. Morgan, Thomas L. Magelaner, Denise Nibert, George H. Grosser, John T. Weber, Allison M. Byrne-Nucerino, Jack C.

Butler, and Orlando Wilborn appeal from the Judgment of the district court denying their petition for habeas corpus relief pursuant to 28 U.S.C. § 2254(d)(1). In their petition, appellants claim that the Double Jeopardy provision of the Fifth Amendment to the U.S. Constitution prevents a criminal conviction of driving under the influence of alcohol when Ohio had earlier suspended their drivers' licenses under the Administrative License Suspension provisions of Ohio Rev. Code § 4511.191(D). Because we find that the Ohio Administrative License Suspension provision of Ohio Rev. Code § 4511.191(D) is not punishment and because we find that decisions of the Ohio courts in their cases were neither contrary to, nor an unreasonable application of, clearly established Double Jeopardy law as determined by the United States Supreme Court, we AFFIRM the judgment of the district court.

I.

Petitioners brought this action for habeas relief under 28 U.S.C. § 2254(d)(1). Petitioners argue that a criminal conviction after an earlier administrative license suspension violates their rights under the Double Jeopardy Clause of the Fifth Amendment to the U.S. Constitution.

The petitioners' claims arise out of procedures following their being stopped for operating a motor vehicle while under the influence of alcohol ("OMVI"). After law enforcement officers stopped each petitioner, each submitted to a chemical test for breath-alcohol content. Each failed the test. After the petitioners failed the chemical test for breath-alcohol content, the arresting officers suspended each petitioner's driver's license pursuant to the Administrative License Suspension provisions of Ohio Rev. Code § 4511.191(D).

The law enforcement officers also charged each petitioner with an OMVI offense under Ohio Rev. Code § 4511.19. *fn2 Each petitioner was later found guilty of driving while under the influence of alcohol.

The petitioners appealed their convictions to the appropriate state appellate court. *fn3 Petitioners claimed that an OMVI conviction under Ohio Rev. Code § 4511.19(A)(3) was barred by the Double Jeopardy Clause because it followed an administrative license suspension under § 4511.191. The state appellate courts dismissed each appeal. The Ohio Supreme Court affirmed. *fn4

Petitioners subsequently filed Petitions for Writs of Habeas Corpus with the United States District Court for the Southern District of Ohio. Upon agreement of the parties, the district court consolidated all cases except that of Petitioner Herbert. In opinions and orders dated September 25, 1997, and October 7, 1997, respectively, the court dismissed all of the habeas petitions. Each Petitioner filed a timely notice of appeal.

II.

In 1993, the Ohio General Assembly enacted legislation directed to problems associated with drunk driving on Ohio highways. *fn5 State v. Gustafson, 76 Ohio St.3d 425, 431 (1996). In this legislation, the Ohio General Assembly revised Ohio's implied consent statute, Ohio Rev. Code § 4511.191. The revision authorized immediate "on-the-spot" suspensions of driving privileges at the time of an OMVI arrest. Ohio Rev. Code § 4511.191(D). The revision also required an arresting officer to carry out an administrative license suspension for motorists who either (1) refuse, upon the officer's request, to submit to a chemical test to detect blood, breath or urine alcohol content; or (2) take the test, but "fail" it, i.e., the driver registers a blood-, breath- or urine-alcohol content exceeding statutory limits. Id. In making such a suspension, the arresting officer acts "[o]n behalf of the registrar" of the bureau of motor vehicles.

Sections 4511.191(E) and (F) establish the range of the administrative license suspension. Suspension ranges from ninety days (imposed upon a first offender who "fails" a chemical test) to five years (imposed upon an arrestee who refuses testing and who has refused chemical testing on three or more ...


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