Luk v. CommonwealthLuk v. Commonwealth
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Anne W. Luk’s driver’s license was suspended for 180 days because she refused to take a breathalyzer test.1 The Commonwealth also charged her with operating a motor vehicle while under the influence of intoxicating liquor (OUI). See
Pursuant to
I. Facts. At approximately 2:20 a.m. on December 10, 1994, Wayland police Sergeant Daniel Sauro witnessed a red two-door Honda automobile drive off the road, ride over grass, and strike a stone wall. Luk was the sole occupant of the vehicle. Sauro approached the vehicle and determined that Luk appeared intoxicated.4 He asked Luk to take a breathalyzer test. Luk refused. The officer confiscated her license in accоrdance with
On January 7, 1995, the registrar held a hearing regarding the suspension of Luk’s license. The hearing officer upheld the suspension. Luk sought review in the District Court pursuant to
On December 12, 1994, Luk was charged in the Framingham Division of the District Court Department with operating a motor vehicle while under the influence of intoxicating liquor. Luk filed a motion to dismiss asserting that a criminal prosecution would be in violation of double jeopardy principles. After her motion was denied by the trial judge and the single justice, Luk admitted to sufficient facts to warrant a finding of guilty.6 The matter was continued without a finding until April 17, 1996. The judge required Luk to complete a driver alcohol education program pursuant to
On April 28, 1995, Luk received notice from the registrar of an additional two-year license suspension because she had previously been convicted under
II. Double jeopardy. The double jeopardy clause protects against three distinct abuses: a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717 (1969).8 It is the third protection that is at issue here. In order to show multiple punishments for double jeopardy purposes, a defendant must show the following three things: first, the administrative license suspension (ALS) imposed on her pursuant to c. 90,
In Mitchell, supra, the Supreme Court first announced the “statutory construction” test for determining whether a civil sanction is “punishment.” This test required that the Court ask two questions. “First, we have set out to determine whether Congress, in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other. . . . Second, where Congress has indicated an intention to establish a civil penalty, we have inquired further whether the statutory scheme was so punitive either in purpose or effect as to negate that intention.” United States v. Ward, 448 U.S. 242, 248-249 (1980). With regard to the second inquiry, the Court has stated that “only the clearest proof could suffice to establish the unconstitutionality of a statute on such a ground.” Flemming v. Nestor,
The appropriate analysis was redefined in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169 (1963).10 Kennedy listed seven factors to consider in determining if a statute imposes punishment. The factors were (1) whether the sanction involves an affirmative disability or restraint; (2) whether it has historically been regarded as 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 be rationally connected is assignable for it; and (7) whether it appears excessive in relation to the alternative purpose assigned. The Kennedy factors are useful, although neither exhaustive nor dispositive in double jeopardy analysis.11
Post-Halper, the Supreme Court decided Department of Revenue of Mont. v. Kurth Ranch, supra. Kurth Ranch involved the constitutionality of a drug tax imposed after the conclusion of a prosecution against the criminal defendants based on possession of the same drugs. Although the Supreme Court relied on some of the factors from Kennedy and Halper13 in invalidating the drug tax, it expressly limited Kurth Ranch to tax cases. Kurth Ranch, supra at 1948. See State v. Toriello, 71 Ohio MisC. 2d 81, 84 (1995) (“The court finds that the facts and circumstances of Kurth Ranch
With this backdrop, we proceed to analyze the Massachusetts administrative license suspension statute under the above principles of double jeopardy.
B. The Massachusetts administrative license suspension statute:
Revocation of this privilege has long reflected public safety concerns. The first statute requiring drivers’ licenses was promulgated in 1903.14 Even then, one could obtain a driver’s license only on “passing] such examination as to his qualifications as may be required by the statе highway commission,” St. 1903, c. 473, § 4, and one’s driver’s license was revoked for “operating] an automobile or motor cycle .... recklessly or while under the influence of intoxicating liquor or so as to endanger the lives or safety of the public.” St. 1906, c. 412, § 4.
Mandatory license suspension is but one of several provisions of the motor vehicle laws aimed at preserving public safety. The regulatory scheme provides for residential and
Chapter 90,
The remedial purpose of c. 90,
In other contexts, license revocation is recognized as a public safety measure rather than punishment. As early as 1933, the Justices recognized the nonpunitive purposes of licensing businesses and activities that could result in danger to the public. See Opinion of the Justices, 282 Mass. 619, 626 (1933) (“Necessary and lawful business of a nature liable, in the absence of regulation and supervision, to harm the public heаlth, the public safety, or the public morals, may be required to be licensed”). Accord Piro v. National Transp. Safety Bd., 66 F.3d 335 (9th Cir. 1995) (loss of pilot’s license not punishment as it bears rational relationship to gov
Other losses of privileges have similarly been recognized as regulatory rather than punitive. United States v. Hudson, 14 F.3d 536, 541-542 (10th Cir. 1994) (revocable ban from participation in banking activities); United States v. Bizzell, 721 F.2d 263, 267 (10th Cir. 1990) (debarment from participation in Federal program); United States v. Furlett, 91A F.2d 839, 844-845 (7th Cir. 1992) (trading ban prohibiting defendant from trading on any contract market); No Illegal Points, Citizens for Drivers Rights, Inc. v. Florio, 264 N.J. Super. 318 (1993) (point system for motor vehicle violations).
Licenses are not only revoked because of criminal activity. Drivers’ licenses may be revoked for a variety of noncriminal offenses including misuse of license and identification cards, nonsatisfaction of judgments, incompetency, failure to pay child support, and “whenever the holder [of the license] has committed a violation of the motor vehicle laws of a nature which would give the registrar reason to believe that continuing operation by such holder is and will be so seriously improper as to constitute an immediate threat to the public safety.”
Luk argues that, because temporary suspension of the driver’s license of a person who refuses to take a blood test is not the best way of ensuring safe highways, public safety could not have been the purpose behind license suspension. The Legislature has chosen an effective way of dealing with the problem of drivers who drive while intoxicated. The United States Department of Transportation’s National Highway Traffic Safety Administration, has estimated that hundreds of lives are saved annually in this country because of administrative license revocation. See Traffic Tech, NHTSA Technology Transfer Series No. 24 (Mar. 1992). The decision of which is the most effective way of dealing with this pervasive problem is left to the Legislature. Mackey v. Montrym, supra at 16-17. See Matter of Saab, 406 Mass. 315, 324 n.13 (1989), quoting Mackey, supra at 13 (“The Due Process Clause simply does not mandate that all governmental decisionmaking comply with standards that assure perfect, error-free determinations”). We note that empirical evidence indicates that of the three types of sanctions available under § 24 — confinement, fine, and license suspension — suspension is the most effеctive for purposes of general deterrence of OUI. Jiang Yu, Punishment Celerity and Severity: Testing a Specific Deterrence Model on Drunk Driving Recidivism, 22 J. Crim. Just. 355, 356 (1994).
We reject Luk’s additional argument that, because the length of the suspension increases with the number of one’s convictions under c. 90, § 24, not the number of times an operator refuses a breath test, the suspension is punishment for a suspected violation of c. 90, § 24. Luk ignores statistical evidence that the number of previous arrests for driving while intoxicated increases the risk to public safety. See Traffic Tech, NHTSA Technology Transfer Series No. 85 (Feb. 1995) (Approximately one-third of all drivers arrested or convicted of OUI each year are repeat OUI offenders. Drivers with prior OUI convictions are also overrepresented in fatal crashes and have a greater relative risk of fatal crash
Because we conclude that the Massachusetts administrative license suspension law is a reasonable sanction primarily designed to promote public safety, we hold that Massachusetts may suspend a license pursuant to c. 90,
C. Separate offenses. Double jeopardy is only violated if multiple prosecutions are brought or multiple punishments are imposed for the same offense. If the defendant is being twice punished for distinct offenses, double jeopardy is not offended. See Commonwealth v. Diaz, 383 Mass. 73, 84 (1981); Commonwealth v. Burston, 35 Mass. App. Ct. 355, 358 (1993). Operating under the influence and refusal to submit to a chemical test of the breath are distinct offenses. Neither offense requires the same elements nor the same conduct as the other.
The crime of operating while under the influence requires: (1) operation of a vehicle, (2) on a рublic way, (3) under the influence of alcohol.17 Commonwealth v. O’Connor, 420 Mass. 630, 631 (1995). The offense of refusing to submit to a blood or breath test as sanctioned by
The offense of driving while intoxicated does not require that a breath or blood test be requested and refused. Evidence of refusal to submit to a blood test is inadmissible in the criminal prosecution. Commonwealth v. McGrail, 419 Mass. 774, 780 (1995). See Opinion of the Justices, 412 Mass. 1201 (1992) (refusal evidence is compelled and requires a citizen to furnish evidence against oneself, and that, therefore, admission of evidence of refusal is unconstitutional under art. 12 of Massachusetts Declaration of Rights).
The offense of refusing to submit to a breath or blood test does not require that the person actually be under the influence of alcohol. Evidence that the individual was driving while intoxicated is irrelevant in the refusal hearing. It is the refusal to submit to the breath or blood test that is determinative. Because each offense requires something that the other does not, they are not the same offense for purposes of double jeopardy. See Morey v. Commonwealth, 108 Mass. 433, 434 (1871). See also Commonwealth v. Woods, 414 Mass. 343, 350-351, cert, denied, 510 U.S. 815 (1993). Accord State v. Uncapher, 70 Ohio Misc. 2d 4, 17 (1995) (in the case of refusal to take chemical test, the one-year suspension stands regardless of the driver’s state of impairment, “excepting only that the officer have probable cause” to make an arrest; matter not subject to double jeopardy analysis); State v. Fitzgerald, No. 950158 (Ohio Ct. App. Nov. 22, 1995); State v. Sims, CA 94-12-215 (Ohio Ct. App. Aug. 21, 1995).
The Legislature specifically authorized separate sanctions for these separate offenses. The Legislature’s direction is entitled to enforcement absent constitutional infirmity. See Rushworth v. Registrar of Motor Vehicles, 413 Mass. 265, 273-274 (1992). Even if the administrative license suspension were considered to be punishment, principles of double jeopardy are not violated when a person’s license is suspended
Judgment affirmed.
Notes
Luk’s license was suspended for a period of 180 (not 120 days) because she had a prior conviction under
The double jeopardy clause of the Fifth Amendment to the United States Constitution provides: “[N]or shall any person be subject for the same olfence to be twice put in jeopardy of life or limb.” It is applicable to the States through the Fourteenth Amendment to the United States Constitution. Benton v. Maryland, 395 U.S. 784, 794 (1969).
Although not еxpressly included in the Massachusetts Declaration of Rights, the prohibition against double jeopardy has long been recognized as part of our common and statutory law. Thames v. Commonwealth, 365 Mass. 477, 479 (1974).
The officer detected a heavy odor of alcohol. Luk’s speech was slurred, and her eyes were watery and bloodshot. She did not turn off the vehicle’s engine nor did she immediately respond when the officer asked her if she was all right. She could not walk without assistance. Based on these facts, Officer Sauro concluded that Luk had been operating a motor vehicle while intoxicated.
Admission to sufficient facts to warrant a finding of guilty is treated as a plea of guilty. Commonwealth v. Duquette, 386 Mass. 834, 841 (1982). See Commonwealth v. Greene, 400 Mass. 144, 145-146 (1987) (judge is entitled to treat admission to sufficient facts as the functional equivalent of guilty plea if the admission was made knowingly and voluntarily). See also
Although the judge did not so state, he sentenced Luk as if she were a first offender. This does not bind the registrar in fulfilling his duties under c. 90, § 24. Daley v. Board of Appeal on Motor Vehicle Liab. Policies & Bonds, 406 Mass. 857, 860 (1990). The registrar is required to follow the mandate of
Justice Sea lia in his dissent in Department of Revenue of Mont. v. Kurth Ranch, 114 S. Ct. 1937, 1955 (1994) (Scalia, J., dissenting), states that the double jeopardy clause merely prohibits multiple prosecutions and not multiple punishments. He asserts that “ ‘ [t]o be put in jeopardy’ does not remotely mean ‘to be punished,’ so by its terms this provision prohibits, not multiple punishments, but only multiple prosecutions.”
The order of proceedings is constitutionally insignificant. Kurth Ranch, supra at 1958 (Scalia, J., dissenting). As Justice Scalia noted in his dissent, “If there is a constitutional prohibition on multiple punishments, the order of punishment cannot possibly make any difference.” Id. See United States v. Morgan, 51 F.3d 1105, 1114 (2d Cir.), cert, denied, 116 S. Ct. 171 (1995) (“[W]e are firmly persuaded that the shield of double jeopardy remains in place regardless of the happenstance of whether the civil proceeding or criminal prosecution arising from the same offense comes first. We now rule that such a fortuitous circumstance is of no moment in double jeopardy analysis”); United States v. Bizzell, 921 F.2d 263, 267 (10th Cir. 1990) (“The civil penalties were exacted before the indictment was returned, but the distinction is not significant. The question is still whether the civil remedies can be fairly described as remedial”).
Kennedy v. Mendoza-Martinez, 373 U.S. 144 (1963), involved the question whether deportation was punishment necessitating the constitutional protections of a criminal prosecution. United States v. Ward, 448 U.S. 242, 249 (1980), applied the Kennedy test to determine whether a civil sanction constituted punishment for double jeopardy purposes.
Were we to apply the Kennedy factors to suspension of a driver’s license for failure to submit to a breath or blood test, we would reach the conclusion that administrative license suspension is nonpunitive. Although suspension of a driver’s license is an affirmative disability or restraint, it has historically been regarded as remedial. See Helvering v. Mitchell, 303 U.S. 391, 399 (1938). While operating while under the influence is a crime, the behavior of refusing to submit to a breath test is not. Indeed, one’s refusal to submit to a chemical test of her breath is not admissible as evidence in the criminal prosecution. Commonwealth v. McGrail, 419 Mass. 774, 780 (1995) (evidence of refusal tо take blood alcohol test is inadmissible at trial). Commonwealth v. Zevitas, 418 Mass. 677, 683 (1994) (requiring jury instruction on defendant’s refusal to submit to blood alcohol test unconstitutional). See Opinion of the Justices, 412 Mass. 1201 (1992). The only sanction for refusal to submit to a breath test is suspension of one’s driver’s license. License suspension does promote deterrence, a traditional aim of punishment, but the main purpose is promoting public safety. This purpose completely explains the sanction. The sanction of license suspension is not excessive in light of this purpose. Accord State v. Strong, 158 Vt. 56, 60-61 (1992) (applying Kennedy factors).
See also United States v. Hudson, 14 F.3d 536, 540 (10th Cir. 1994) (“We therefore must conclude that if a sanction is not exclusively remedial, but rather can only be explained as also affecting deterrencе or retribution, it is punishment for double jeopardy analysis. We are careful to note that a determination that a sanction is at least in part punishment requires that it must be explained as also serving as a deterrent or retribution, not merely that it may be so explained” [emphasis in original]).
The Court relied on four factors in concluding that Montana’s drug tax was punishment — the high rate of taxation, the deterrent purpose, that it was conditioned on commission of a crime, and that it taxed possession of goods that no longer existed. Kurth Ranch, supra at 1946-1947.
Statute 1903, c. 473, is the original precursor of G. L. c. 90, the present statute governing motor vehicles and aircraft.
There are only three issues considered at the hearing before the registrar: (1) did the police officer have reasonable grounds to believe the individual had been operating a motor vehicle while under the influence of intoxicating liquor; (2) was the individual placed under arrest; and (3) did such person refuse to submit to a blood or breath test.
We are aware of only one appellate court case holding that ALS implicates double jeopardy. State v. Gustafson, No. 94 C.A. 232 (Ohio Ct. App. June 27, 1995), appeal allowed, 73 Ohio St. 3d 1427 (1995) (subsequent prosecution precluded because ALS had deterrent effect and therefore was punitive) (other Ohio intermediate appellate courts take the opposite view; see cases cited above).
Post-Kurth Ranch-. State v. Zerkel, 900 P.2d 744, 758 (Alaska Ct. App. 1995) (“We conclude that administrative license revocation continues to be a ‘remedial’ sanction, not a punitive sanction for purposes of the federal double jeopardy clause”); Marzolf v. Superior Court, 185 Ariz. 144, 150 (Ct. App. 1995) (because an ALS “does not go beyond what is reasonably necessary to remove drunk drivers from the road, it is fair to classify its purpose as remedial in toto. Therefore, the suspension . . . was not ‘punishment’ for Double Jeopardy purposes”); State v. Fox, No. MV94 31 52 60 (Conn. Super. Ct. Sept. 13, 1995) (ALS not punitive for double jeopardy purposes); State v. Schwander, Nos. IN94-081350—IN94-08-1351, IN94-08-1352, IN94-08-1353, IN94-08-1354 (Del. Super. Ct. June 15, 1995) (Delaware’s informed consent statute is remedial because its purpose is to protect public safety); Davidson v. MacKinnon, 656 So. 2d 223, 225 (Fla. Dist. Ct. App. 1995) (“the administrative remedy of suspending a driver’s license because of drunk driving or other related behavior was and continues to be primarily for the purpose of enhancing safe driving on the public highways”); Jackson v. State, 218 Ga. App. 677 (1995) (ALS reasonably related and not disproportionate to the State’s remedial purpose of removing dangerous and habitually negligent drivers from roadways); State v. Higa, 79 Hawaii 1 (1995) (ALS proceedings serve legitimate, nonpunitive, and purely remedial functions); State v. Talavera, 111 Idaho 700 (1995) (remedial purpose of ALS apparent and “directly addresses the problems of removing drivers from the road who should not be driving”); State v. Funke, 531 N.W.2d 124, 126 (Iowa 1995), quoting State v. Marvin, 307 N.W.2d 10, 12 (Iowa 1981) (license suspension of habitual drunk driving offenders designed “not to punish the offender, but to protect the public”); State v. Savard, 659 A.2d 1265, 1268 (Me. 1995) (“we conclude that any punitive or deterrent purpose served by the suspensiоn of an operator’s driver’s license following an arrest for GUI is merely incidental to the overriding purpose intended by the Legislature to provide the public with safe roadways”); State v. Jones, 340 Md. 235, 256 (Ct. App. 1995) (ALS not punishment for double jeopardy purposes); State v. Parker, 538 N.W.2d 141 (Minn. Ct. App. 1995) (180-day revocation rationally related to the remedial purpose of ALS statute); State v. Young, 3 Neb. App. 539 (1995) (civil license revocation is remedial, not punishment); State v. Cassady, 140 N.H. 46 (1995) (sanction of license revocation not criminal punishment for purposes of double jeopardy); State ex rel. Schwartz v. Kennedy, 120 N.M. 619, 625-626 (1995) (driver’s license revocations not punishment for purposes of double jeopardy); People v. Frank, 166 Misc. 2d 111, 281 (N.Y. Crim. Ct. 1995) (primary purpose of license suspension pending prosecution remedial rather than punitive); State v. Zimmerman, 539 N.W.2d 49, 50 (N.D. 1995) (“We conclude the criminal and administrative proceedings do not constitute double jeopardy because the administrative action serves the remedial goal of protecting the public from impaired drivers, and the suspension of the license is not greatly disproportionate to the remedial goal”); State v. Miller, No. 2-94-32 (Ohio Ct. App. May 12, 1995) (ALS remedial in nature and does not constitute punishment under the double jeopardy clause); State v. Sims, No. CA94-12-215 (Ohio Ct. App. Aug. 21, 1995) (ALS nonpunitive in nature); Voisinet v. State, 909 S.W.2d 262 (Tex. Ct. App. 1995) (driver’s license is not suspended for the purpose of visiting additional punishment upon an offender but in order to protect the public against incompetent and careless drivers); Tench v. Commonwealth, 21 Va. App. 200 (1995) (ALS is not punishment); State v. McMaster, 198 Wis. 2d 542 (Ct. App. 1995) (administrative suspension of driving privileges not punishment for double jeopardy purposes).
Pre-Kurth Ranch: State v. Nichols, 169 Ariz. 409 (1991) (double jeopardy clause does not bar criminal prosecution for driving under the influence after suspension of driver’s license); Ellis v. Pierce, 230 Cal. App. 3d
On the result we reach, we need not discuss whether the ALS and the criminal prosecution are “one proceeding.”