CITY OF HELENA, Plaintiff and Respondent, v. FRANK DANICHEK, Defendant and Appellant.
No. 95-394.
SUPREME COURT OF MONTANA
Submitted June 25, 1996. Decided August 20, 1996.
277 Mont. 461 | 922 P.2d 1170 | 53 St. Rep. 767
For Respondent: Hon. Joseph P. Mazurek, Attorney General, Brenda Nordlund (argued), Assistant Attorney General, Helena; Robert Wood, Assistant City Attorney, Helena.
For Amicus Curiae: Steve Fletcher (argued), Bulman Law Associates, Missoula.
Appellant Frank Danichek appeals from an order entered by the First Judicial District Court, Lewis and Clark County, denying his motion to dismiss the charge of driving under the influence of alcohol on double jeopardy grounds. We affirm.
The issue on appeal is whether the District Court erred in denying Danichek‘s motion to dismiss based on his claim that the Double Jeopardy Clause of both the United States and Montana Constitutions prohibits him from being criminally prosecuted for operating a motor vehicle under the influence of alcohol following the suspension of his driver‘s license for refusing a breathalyzer test.
The facts are not in dispute. In December 1994, Danichek was arrested in Helena for driving under the influence of alcohol. Following his arrest, Danichek refused a law enforcement officer‘s request that he submit to a breathalyzer test. As a result, Danichek‘s driver‘s license was seized and suspended for a period of ninety days pursuant to
The District Court entered a decision and order denying the motion to dismiss. Danichek then filed a motion for a change of plea pursuant to
STANDARD OF REVIEW
This Court has recently stated that the grant or denial of a motion to dismiss in a criminal case is a question of law. State v. Hansen (1995), 273 Mont. 321, 323, 903 P.2d 194, 195. The standard of review of a district court‘s conclusion of law is plenary and we will review it to determine whether the conclusion of law is correct. Hansen, 903 P.2d at 195 (citing State v. Rushton (1994), 264 Mont. 248, 255, 870 P.2d 1355, 1359).
DISCUSSION
We have recently stated that the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution protects against three distinct abuses: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. State v. Nelson (1996), 275 Mont. 86, 90, 910 P.2d 247, 250. It is the
The Double Jeopardy Clause has been made applicable to the states through the Fourteenth Amendment. Nelson, 910 P.2d at 250 (citing Benton v. Maryland (1969), 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707; State v. Cole (1987), 226 Mont. 377, 744 P.2d 526). Danichek claims no greater protection from double jeopardy under the
Danichek relies on recent United States Supreme Court decisions in Montana Department of Revenue v. Kurth Ranch (1994), 511 U.S. 767, 114 S. Ct. 1937, 128 L. Ed. 2d 767, and United States v. Halper (1989), 490 U.S. 435, 109 S. Ct. 1892, 104 L. Ed. 2d 487, and this Court‘s post-Halper decision in Stuart v. Department of Social and Rehabilitation Services (1993), 256 Mont. 231, 846 P.2d 965, to argue that the criminal DUI prosecution is barred because he has already been punished by having his driver‘s license suspended. He challenges prior Montana case law holding that the suspension of a driver‘s license pursuant to the implied consent law protects the public rather than punishes the driver and maintains that the license suspension must be deemed punishment because it is a detriment or other coercive intervention annexed to a violation of the law which provides a means to enforce the DUI statute.
The State argues that suspension of a driver‘s license following refusal to submit to a breathalyzer test does not constitute “punishment” for double jeopardy purposes and further argues that
In Kurth, Montana law enforcement officers raided the farm of the Kurth family and confiscated and destroyed their marijuana plants. The Kurths pled guilty to the drug charges and also forfeited over $18,000 in cash and equipment as a result of a civil forfeiture action filed by the State. The Montana Department of Revenue then attempted to collect a state tax imposed on the possession and storage of dangerous drugs pursuant to Montana‘s Dangerous Drug Tax Act. The Kurths filed for bankruptcy and challenged the constitutionality
This case presents the question of whether a tax on the possession of illegal drugs assessed after the State has imposed a criminal penalty for the same conduct may violate the constitutional prohibition against successive punishments for the same offense.
Kurth, 511 U.S. at __, 114 S. Ct. at 1941 (emphasis added). The Supreme Court held that the proceeding Montana initiated to collect the drug tax was the functional equivalent of a successive criminal prosecution that placed the Kurths in jeopardy a second time for the same offense. Kurth, 511 U.S. at __, 114 S. Ct. at 1948.
Five years prior to Kurth, the U.S. Supreme Court decided Halper. Halper had falsified Medicare forms to obtain overpayment in the amount of $585. The government successfully prosecuted Halper for fraud and he was fined and sentenced to prison. At the conclusion of the criminal proceeding, the government commenced an action for a statutory civil penalty under the False Claims Act which would have imposed an additional fine in the amount of $130,000. The issue before the Court was whether and under what circumstances a civil penalty may constitute punishment for purposes of double jeopardy analysis. Halper, 490 U.S. at 436, 109 S.Ct. at 1895. The Court concluded that double jeopardy protections prohibit subjecting a defendant who has been punished in a criminal prosecution to an additional civil sanction to the extent the second sanction may not fairly be characterized as remedial, but only as a deterrent or retribution. Halper, 490 U.S. at 449, 109 S.Ct. at 1902. The Court held that the imposition of the full statutory amount violated double jeopardy protections by punishing Halper a second time for the same conduct for which he had been convicted. Halper, 490 U.S. at 451, 109 S.Ct. at 1903.
In Stuart, this Court relied on Halper to address the issue of whether a civil sanction existed which would trigger a double jeopardy analysis. Two former employees of the Department of Social and
It is necessary at this point to focus our analysis. The parties dispute whether or not the license suspension constitutes “punishment” for double jeopardy purposes and whether the suspension engenders a “separate proceeding” to trigger double jeopardy analysis. However, we determine that the dispositive question in this case is whether Danichek‘s license suspension resulted from the “same offense” for which he was subsequently criminally prosecuted. A possible double jeopardy violation could have occurred only if we answer that question in the affirmative.1
The State argues that Danichek violated two different offenses,
Danichek acknowledges that he violated two statutory offenses. However, he claims that his license suspension and DUI prosecution were the result of the same conduct. He argues that
Danichek violated
We hold that the District Court did not err in denying Danichek‘s motion to dismiss and that the court correctly interpreted the law when it concluded that Danichek‘s constitutional guarantee against double jeopardy was not violated.
Affirmed.
CHIEF JUSTICE TURNAGE, JUSTICES NELSON, TRIEWEILER, HUNT, GRAY and LEAPHART concur.
JUSTICE NELSON specially concurs.
I concur in our opinion. It is unfortunate, however, that we are not able to also ground our decision in what most courts agree is an even stronger argument for rejecting the double jeopardy challenge at issue here. Accordingly, I write separately to point out that because of a peculiar requirement of Montana‘s implied consent law, one of the most recognized, obvious and common sense rationales for upholding the operation of this statute against a double jeopardy challenge is unavailable or is, at least, highly questionable.
Other state and federal jurisdictions that have upheld the administrative seizure, suspension or revocation of a driver‘s license incident to an alcohol or drug-impaired driving violation and chemical-test refusal have done so on the basis that the administrative suspension of driving privileges is not “punishment.” Rather, with almost near unanimity, courts have focused their analysis on the non-punitive, remedial nature of administrative license suspensions. See, e.g. State v. Oliver (N.C. 1996), 470 S.E.2d 16; Luk v. Com. (Mass. 1995), 658 N.E.2d 664, and the numerous cases collected therein.
An impaired driver presents an immediate, emergency situation, and swift action is required to remove the unfit driver from the highways in order to protect the public. We do not pretend to ignore that a driver‘s license revocation, even of short duration, may, for some, have a deterrent effect. ... [Although] any deterrent effect a driver‘s license revocation may have upon the impaired driver is merely incidental to the overriding purpose of protecting the public‘s safety.
The suspension serves to deter persons from driving while intoxicated; it effectuates the Commonwealth‘s interest in obtaining reliable and relevant evidence by inducing suspected drunk drivers to take the breath test; and it promotes safety on the highways by summary removal of dangerous drivers.
In the instant case, the State argues these same remedial objectives as justification for holding that double jeopardy is not implicated by both suspending the impaired driver‘s license for refusal to submit to a chemical test and prosecuting him or her for DUI. Montana‘s implied consent law,
Under
In other words, in Montana, despite the fact that a driver is driving while intoxicated; despite the fact that a peace officer has reasonable grounds to arrest the driver for DUI; despite the fact that the driver refuses to take a chemical test of his blood, breath or urine under the implied consent law; and despite the fact that the officer immediately seizes the driver‘s license pursuant to that statute, under the same statute the arresting officer must, while seizing the license with one hand, issue an immediately-effective temporary 5-day driving permit with the other.
Worse, at oral argument, Danichek convincingly argued that is exactly what happens on occasion. Under such circumstances, as Danichek correctly points out, it is absurd to maintain that immediate seizure of the impaired driver‘s license under Montana‘s implied consent law serves the remedial purpose of summarily removing the impaired driver from the road, thus, protecting the public safety, if that same drunk driver is also immediately issued a temporary driver‘s permit as he leaves the police station and before he even sobers up.
Moreover, the government and the police should not be subjected to the sort of potential civil liability that is inherent in this statutory scheme. Under the very statute enacted to protect public safety, the arresting officer should not also, by law, be required to issue an intoxicated driver what may turn out to be a temporary license to kill.
This anomaly can be easily corrected legislatively; and, obviously, it should be.
I believe that the legislature intended that the operation of Montana‘s implied consent statute serve the remedial purposes set forth above. I do not agree with Danichek that the purpose of this statute is punishment.
CHIEF JUSTICE TURNAGE and JUSTICES GRAY and LEAPHART join in the foregoing special concurrence.