Ronnie KEYES a/k/a Ronnie David Keyes v. STATE of Mississippi.
No. 95-KA-01170-SCT.
Supreme Court of Mississippi.
February 5, 1998.
Rehearing Denied April 16, 1998.
708 So. 2d 540
BANKS, Justice, for the Court
Michael C. Moore, Attorney General, Billy L. Gore, Sp. Asst. Attorney General, Jackson, for Appellee.
En Banc.
ON MOTION FOR REHEARING
BANKS, Justice, for the Court:
¶ 1. The Motion for Rehearing is granted. The original opinion is withdrawn and these opinions are substituted therefor.
¶ 2. The present case came before the Court on criminal interlocutory appeal from a ruling by the Circuit Court of Harrison County, Mississippi, denying the defendant‘s motion to dismiss. In Keyes v. State, No. 95-KA-01170 (decided September 4, 1997), we reversed and rendered, declaring that suspension of a driver‘s license constitutes punishment for purposes of double jeopardy. We conclude that the Double Jeopardy Clauses of the United States and Mississippi Constitutions do not preclude criminal prosecution for violation of
I.
¶ 3. On June 12, 1993, Ronnie David Keyes was arrested in Gulfport, Mississippi, for driving under the influence (DUI). Keyes registered a blood-alcohol content (BAC) of at least thirty-three one-hundredths percent (.330%), more than three times the legal limit. On July 13, 1993, the Mississippi Department of Public Safety suspended Keyes’ driver‘s license pursuant to its administrative authority under
¶ 4. On May 2, 1995, Keyes filed a motion to dismiss based on the double jeopardy and ex post facto provisions of the United States and Mississippi Constitutions.2 Keyes argues
¶ 5. Keyes perfected this interlocutory appeal through imperfect process. Nevertheless, because this case involves double jeopardy and an issue of public policy, we exercise our authority to suspend the rules in criminal cases and consider the matter on the merits. Miss. R.App. P. 2(c). See also Beckwith v. State, 615 So. 2d 1134 (Miss. 1992) (double jeopardy claims justify immediate determination and may be treated by this Court as a direct appeal from a final judgment).
II.
¶ 6. In analyzing Keyes’ double jeopardy claim, we are compelled to construe the statute under which his license was allegedly suspended.3 This inquiry is necessary for resolution of the double jeopardy claim, since we must determine whether the required elements of ALS under
¶ 7. Keyes was arrested on June 12, 1993, for operating an automobile with a BAC greater than ten one-hundredths percent (.10%), in violation of
(2) If the chemical testing of a person‘s breath indicates the blood alcohol concentration was ten one-hundredths percent (.10%) or more by weight volume of alcohol, the arresting officer shall seize the license and give the driver a receipt for his license on forms prescribed by the Commissioner of Public Safety and shall promptly forward the license together with a sworn report to the Commissioner of Public Safety. The receipt given a person as provided herein shall be valid as a permit to operate a motor vehicle for a period of thirty (30) days in order that the defendant be processed through the court having original jurisdiction and a final disposition had; provided, however, that if the defendant makes a written request directed to the trial judge requesting that a trial be held on the matter within such thirty-day period and such defendant is not afforded a trial within such period, then the Commissioner of Public Safety shall issue such defendant a permit to drive that shall be valid for an additional thirty (30) days. If the defendant makes a written request to the trial judge requesting that a trial be held on the matter prior to the expiration of such permit to drive and such defendant is not afforded a trial within such period,
then the Commissioner of Public Safety shall issue such defendant a permit to drive for an additional thirty (30) days. In no event shall a defendant be permitted to drive under the provisions of this subsection for more than ninety (90) days after the initial seizure of such defendant‘s license. The fact that the defendant has the right to request a trial and the effect of a denial of such request shall be plainly stated on the face of any receipt or permit to drive issued such defendant. If a receipt or permit to drive issued pursuant to the provisions of this subsection expires without a trial having been requested as provided for in this subsection, then the Commissioner of Public Safety or his authorized agent shall suspend the license or permit to drive or any nonresident operating privilege for the applicable period of time as provided for in subsection (1) of this section.
¶ 8. As this Court observed in Martin, this is a “not-too-artfully-worded statute.” Id. It is clear, however, that within the ninety days following initial seizure of the license the triggering mechanism for suspension is the expiration of either of the temporary permits without a request by the defendant for a trial. In keeping with a strict construction of
¶ 9. Thus, a law enforcement officer may, pursuant to the statute, seize the license of a driver who fails the breath test. When the officer seizes a license he is required to issue a receipt to the driver which shall serve as a permit to operate a motor vehicle for thirty days. If the defendant makes a written request for trial within that first thirty-day period and he is not afforded a trial within that time, the Commissioner shall issue a permit to drive for an additional thirty days. If the defendant renews his request for trial within the second thirty-day period and is not afforded a trial within that time, the Commissioner shall issue the defendant a third thirty-day permit. If this temporary permit expires, and trial has not yet been had, the Commissioner may not issue additional permits to drive.
¶ 10. We note that seizure of a license does not constitute suspension. Temporary permits issued under
III.
¶ 11. The central issue before this Court is whether the administrative suspension of Keyes’ license constitutes prosecution or punishment for purposes of the State and Federal Double Jeopardy Clauses, thus barring subsequent criminal prosecution for felony DUI under
¶ 12. The Double Jeopardy Clause of the
¶ 13. In Blockburger v. United States, 284 U.S. 299 (1932), the United States Supreme Court established the test for federal double jeopardy claims, stating, “[t]he applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Id. at 304. More recently, the Court reiterated the Blockburger test:
In both the multiple punishment and multiple prosecution contexts, this Court has concluded that where the two offenses for which the defendant is punished or tried cannot survive the “same-elements” test, the double jeopardy bar applies... . The same-elements test, sometimes referred to as the “Blockburger” test, inquires whether each offense contains an element not contained in the other; if not, they are the “same offence” [sic] and double jeopardy bars additional punishment and successive prosecution.
United States v. Dixon, 509 U.S. 688, 696 (1993). The “same-elements” methodology of Blockburger has been applied by this Court to analyze claims under both the Federal and State Double Jeopardy Clauses. See, e.g., Shook v. State, 552 So. 2d 841, 848 (Miss. 1989); Smith v. State, 429 So. 2d 252, 253-54 (Miss. 1983).
¶ 14. As we have construed
IV.
¶ 15. The State invites us to decide Keyes’ double jeopardy claim on the ground that ALS is sufficiently remedial so as not to constitute punishment for purposes of double jeopardy. This was the approach of the trial court, which after looking to sister states for guidance, concluded that ALS is not punishment for double jeopardy purposes “because the former are civil proceedings, remedial in nature, and designed primarily to protect the public from drunk drivers rather than to punish said drivers.” There is much to recommend this approach in regard to the Federal Double Jeopardy Clause, especially in light of the United States Supreme Court‘s recent pronouncement in Hudson v. United States, 118 S. Ct. 488 (1997). We have determined that the elements of the two “offenses” of which Keyes complains are entirely separate and would, in any event, provide no double jeopardy protection against multiple punishment. However, even if
¶ 16. State court challenges to ALS and license revocation provisions on double jeopardy grounds are largely the product of the United States Supreme Court‘s decision in United States v. Halper, 490 U.S. 435 (1989). In Halper, a former manager of a medical service provider was convicted on sixty-five counts of criminal fraud for filing inflated Medicare Claims. The federal government subsequently brought an action under the civil False Claims Act,
¶ 17. The Halper Court acknowledged that both criminal and civil proceedings may advance punitive as well as remedial goals, and held that “in determining whether a particular civil sanction constitutes criminal punishment, it is the purposes actually served by the sanction in question, not the underlying nature of the proceeding giving rise to the sanction, that must be evaluated.” Id. at 447 n. 7. Whether a sanction constituted punishment depended primarily on whether it served the traditional “goals of punishment,” namely retribution and deterrence. Id. at 448.
¶ 18. In Hudson, the Supreme Court disavowed Halper, noting that it deviated from traditional double jeopardy doctrine in two key respects:
First, the Halper Court bypassed the threshold question: whether the successive punishment at issue is a “criminal” punishment. Instead, it focused on whether the sanction, regardless of whether it was civil or criminal, was so grossly disproportionate to the harm caused as to constitute “punishment.” In so doing, the Court elevated a single Kennedy factor — whether the sanction appeared excessive in relation to its nonpunitive purposes — to dispositive status. But as we emphasized in Kennedy itself, no one factor should be considered controlling as they “may often point in differing directions.” The second significant departure in Halper was the Court‘s decision to “asses[s] the character of the actual sanctions imposed,” rather than, as Kennedy demanded, evaluating the “statute on its face” to determine whether it provided for what amounted to a criminal sanction.
Id. at 494 (citations omitted). After noting that Halper‘s approach has proved “unworkable,” and that “some of the ills at which Halper was directed are addressed by other constitutional provisions” including the Due Process and Equal Protection Clauses and the
¶ 19. In determining whether the sanction imposed upon Keyes rises to the level of criminal punishment so as to invoke the protection of the Federal Double Jeopardy Clause, we are therefore compelled to apply the traditional two-step approach under United States v. Ward, 448 U.S. 242, 248 (1980). First, we must determine whether the legislature, “`in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other.’ ” Hudson, 118 S. Ct. at 493; (quoting Ward, 448 U.S. at 248). Second, where the legislature has indicated an intention to establish a civil penalty, we must further inquire “`whether the statutory scheme was so punitive either in purpose or effect’ ” as to negate that intention. Hudson, 118 S. Ct. at 493; (quoting Ward, 448 U.S. at 248-49). In regard to this latter inquiry, the factors listed in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963) are utilized as “guideposts.” Hudson, 118 S. Ct. at 493. The Court emphasizes that “`only the clearest proof could suffice to establish the unconstitutionality of a statute on such a ground.’ ” Ward, 448 U.S. at 249 (quoting Flemming v. Nestor, 363 U.S. 603, 617 (1960)). See also One Lot Emerald Cut Stones and One Ring v. United States, 409 U.S. 232, 237 (1972); Rex Trailer Co., Inc. v. United States, 350 U.S. 148, 154 (1956).
¶ 20. As to the first stage of the Ward inquiry, there is little doubt that the legislature intended ALS to be a civil penalty. While we have recognized that “one‘s livelihood and ability to support oneself and one‘s family” often depends upon being able to operate a motor vehicle, Martin, 495 So. 2d at 502, the suspension of a driver‘s license differs little from the debarment provisions at issue in Hudson by which the defendant bankers were prohibited from “further participation in the conduct of `any insured depository institution.’ ” Hudson, 118 S. Ct. at 492. The Hudson Court nevertheless stated: “[t]hat such authority was conferred upon administrative agencies is prima facie evidence that [the legislature] intended to provide for a civil sanction.” Hudson, 118 S. Ct. at 495 (citing Helvering v. Mitchell, 303 U.S. 391, 402 (1938); United States v. Spector, 343 U.S. 169, 178 (1952) (Jackson, J., dissenting); and Wong Wing v. United States, 163 U.S. 228, 235 (1896)). Since the authority to impose the sanctions of ALS under
¶ 21. As to the second stage of the Ward test, we apply the factors listed in Kennedy, 372 U.S. at 168-69. These include: (1) “[w]hether the sanction involves an affirmative disability or restraint“; (2) “whether it has historically been regarded as a punishment“; (3) “whether it comes into play only on a finding of scienter“; (4) “whether its operation will promote the traditional aims of punishment — retribution and deterrence“; (5) “whether the behavior to which it applies is already a crime“; (6) “whether an alternative purpose to which it may rationally be connected is assignable for it“; and (7) “whether it appears excessive in relation to the alternative purpose assigned.” It is important to note, however, that “these factors must be considered in relation to the statute on its face.” Hudson, 118 S. Ct. at 493; (quoting Kennedy, 372 U.S. at 169). In addition, while this list of considerations is neither exhaustive nor dispositive, Ward, 448 U.S. at 249, “`only the clearest proof’ will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty.” Hudson, 118 S. Ct. at 493; (quoting Ward, 448 U.S. at 249).
¶ 22. Although temporary suspension of a person‘s driver‘s license might appear to be an affirmative disability or restraint, it is more fairly characterized as the “revocation of a privilege voluntarily granted,” a traditional attribute of a remedial action. Helvering, 303 U.S. at 399. See also, e.g., State v. Drewry, 141 N.H. 514, 687 A.2d 991, 993 (N.H. 1996); State v. Gustafson, 76 Ohio St. 3d 425, 668 N.E.2d 435, 456-57 (1996); Jackson v. State, 218 Ga. App. 677, 462 S.E.2d 802, 803 (1995). As such, the sanction of ALS “is characteristically free of the punitive criminal element.” Helvering, 303 U.S. at 399. While ALS imposes a great inconvenience, it carries little of the stigma attached to traditional criminal punishments, and certainly does not approach “the `infamous punishment’ of imprisonment.” Hudson, 118 S. Ct. at 496 (quoting Flemming, 363 U.S. at 617). Thus, it cannot fairly be said that ALS has been historically viewed as a criminal punishment, but as a remedial measure. The overwhelming weight of state case law reinforces this view.7
¶ 23. Neither does the sanction come into play only upon a finding of scienter. Even though failing the breath test is one of the requirements for ALS under
¶ 24. As to whether the sanction serves the traditional aims of punishment, the State readily concedes that ALS has punitive aspects, and may serve deterrent goals. Even in Halper, however, the Court discerned a danger of placing too much emphasis on these considerations, since “even remedial sanctions carry the sting of punishment.” Halper, 490 U.S. at 447 n. 7. In United States v. Ursery, 518 U.S. 267 (1996), the Court clarified that sanctions need not be solely remedial. It noted that “[i]f [the rule that sanctions must be solely remedial] were applied literally, then virtually every sanction would be declared to be a punishment: it is hard to imagine a sanction that has no punitive aspect whatsoever.” Id. at 285 n. 2 (citations omitted).
¶ 25. For our purposes, it is enough to note that while ALS has punitive aspects, especially from the driver‘s perspective, there are alternative purposes to which the sanction may rationally be connected. Removing drunk drivers from the road is rationally connected to the state‘s interest in traffic safety, and we have never doubted “the necessity of effective action to reduce the carnage incident upon drunk driving.” Martin, 495 So. 2d at 502. Additionally, the provisions which place responsibility on the driver to request trial promotes the state‘s interest in quickly determining guilt and removing the drivers within a reasonable period of time. ALS under
¶ 26. Finally, we note that even if failing the breath test were deemed to be the sole conduct for which a person‘s license is suspended, the fact that this conduct may also be criminal is insufficient to render ALS criminally punitive, particularly in the double jeopardy context. See Hudson, 118 S. Ct. at 496.
V.
¶ 27. We note in passing that in the context of civil penalties, the language of the Mississippi Double Jeopardy Clause seems to provide decidedly less protection than its federal counterpart. While there are occasional suggestions in our case law that the State Double Jeopardy Clause contains a “multiple punishments” component as does the Federal Clause, see e.g., Smith, 429 So. 2d at 254, the express requirement of an “actual acquittal or conviction on the merits” belies such an interpretation.8 While we need not reach the issue here, it is difficult to imagine that a civil sanction could ever bar a successive criminal prosecution pursuant to this state‘s Double Jeopardy Bar.9 That is not to say that such sanctions are necessarily beyond constitutional infirmity, since they may be violative of rights embodied in the Due Process, Equal Protection and Excessive Fines provisions.
VI.
¶ 28. For the foregoing reasons, we conclude that the Double Jeopardy Clauses of the United States and Mississippi Constitutions do not preclude criminal prosecution for violation of
¶ 29. AFFIRMED ON INTERLOCUTORY APPEAL AND REMANDED TO THE CIRCUIT COURT OF HARRISON COUNTY FOR FURTHER PROCEEDINGS.
PRATHER, C.J., PITTMAN, P.J., and JAMES L. ROBERTS, Jr., SMITH, MILLS and WALLER, JJ., concur.
SULLIVAN, P.J., concurs with separate written opinion.
McRAE, J., not participating.
Ronnie KEYES a/k/a Ronnie David Keyes v. STATE of Mississippi.
No. 95-KA-01170-SCT.
Supreme Court of Mississippi.
February 5, 1998.
708 So. 2d 540
SULLIVAN, Presiding Justice, concurring
SULLIVAN, Presiding Justice, concurring:
¶ 30. Although I disagree with the majority‘s Blockburger analysis of the two statutes
¶ 31. As an officer of the Court and a public official, it is my duty to follow the law, just as it is the duty of all inferior courts, public officers, and members of the bar. I do not have to like it to obey it, if we are a “... nation of laws, and not of men.”
¶ 32. Our system provides open, honorable methods for members of the legal profession and law enforcement to combat laws and decisions that are offensive to them, but open defiance and silent subversion, however effective, violate the oaths taken by these individuals. The law governs presidents, judges, lawyers and law enforcement members. It is not just binding on “others.”
¶ 33. If we are at liberty to only obey the laws we like, we may eventually find ourselves not at liberty at all.