421 Mass. 433 | Mass. | 1995
John Leduc’s driver’s license was suspended for ninety days because he failed the breathalyzer test required by G. L. c. 90, § 24 (1) (/) (2) (1994 ed.).
Pursuant to G. L. c. 211, § 3 (1994 ed.), Leduc correctly sought relief from a single justice of this court. See, e.g., Kater v. Commonwealth, ante 17, 19 (1995); Cramer v. Commonwealth, 419 Mass. 106, 107 n.l (1994); Koonce v. Commonwealth, 412 Mass. 71, 72 (1992). See also S.J.C. Rule 2:21, post 1303 (1995) (effective Nov. 15, 1995). The single justice denied relief. Leduc appeals. We affirm the judgment of the single justice.
I. Facts. On July 2, 1994, at approximately 1 a.m., Trooper K.E. Reine of the Massachusetts State police observed Leduc’s vehicle weaving in marked lanes. Trooper Reine stopped the vehicle and, after detecting the odor of alcohol on Leduc’s breath, asked him to perform a variety of field sobriety tests. She concluded that Leduc was under the influence of alcohol, arrested him, and transported him to the State police barracks in Andover, where Leduc took a breathalyzer test and registered blood alcohol levels of 0.14% and 0.12%. His license was seized and suspended pursuant to G. L. c. 90, § 24 (1) (f) (2). On July 5, 1994, he was arraigned and charged with OUI. If convicted, Leduc could be punished by fine and imprisonment. See G. L. c. 90, § 24 (1) (a) (1).
The historical aim of licensure generally is preservation of public health, safety, and welfare by extending the public trust only to those with proven qualifications. See Levy v. Board of Registration & Discipline in Medicine, 378 Mass. 519, 527-528 (1979). Moreover, statutes making continued licensure dependent on continued eligibility for the public trust are historically nonpunitive. See, e.g., G. L. c. 112, § 87L (1994 ed.) (barber’s certificate of registration may be suspended “for failure to comply with sanitary rules or regulations ... or for having imparted any contagious or infectious disease”); Feldstein v. Board of Registration in Medicine, 387 Mass. 339, 341-342 (1982) (revocation of license to practice medicine nonpunitive); Saxon Coffee Shop, Inc. v. Boston Licensing Bd., 380 Mass. 919, 928 (1980) (common victualler’s license revocable for failure to operate eating establishment in manner consistent with public health and safety).
We acknowledge that the threat of ALS acts as a deterrent. We also acknowledge that ALS constitutes an affirmative disability or restraint, and that probable cause to believe that the licensee was engaged in criminal behavior is a prerequisite to ALS. But we think it significant that these
Our conclusion is supported by consideration of the statute’s nonpunitive purpose: prompt removal of drunk drivers from the highways. “A person charged with drunken driving who turns up with a substantiated blood alcohol content of .10 percent or more must be thought of as a menace to public safety, and it makes sense to relieve him of his license for a period of time by swift administrative action.” Commonwealth v. Callen, 26 Mass. App. Ct. 920, 922 (1988) (re-script). We do not think a suspension until trial (or for a period not to exceed ninety days) is excessive in relation to this remedial purpose. See note 1, supra.
Furthermore, we believe that § 24 (1) (/) (2) is not a retributive statute because it is aimed at public safety rather than “punishment for the sake of justice.” J. Hospers, Punishment, Protection, and Retaliation, Justice and Punishment 21, 22 (J.B. Cederblom & W.L. Blizek, eds. 1977).
Drawing the line between punitive and nonpunitive civil sanctions “inevitably involves an element of rough justice.” Halper, supra at 449. The court’s judgment can amount to
So ordered.
General Laws c. 90, § 24 (1) (/) (2) (1994 ed.), provides, in pertinent part: “If a person’s blood alcohol percentage is not less than eight one-hundredths . . . [the] police officer shall . . . immediately and on behalf of the registrar [of motor vehicles] take custody of such person’s driver’s license .... The license suspension shall become effective fifteen days after the offender has received the notice of intent to suspend from
According to the record, Leduc’s trial is scheduled for December, 1995.
“[F]or the defendant,” of course, “even remedial sanctions carry the sting of punishment.” United States v. Halper, 490 U.S. 435, 447 n.7 (1989). But whether a sanction constitutes punishment for double jeopardy purposes is not determined from the defendant’s perspective. Id.