126 Wash. App. 700 | Wash. Ct. App. | 2005
Lead Opinion
¶1 Under RCW 46.20.285(4), the Department of Licensing must revoke the driver’s license of a criminal defendant who uses a motor vehicle in the commission of a felony. But the revocation of a driver’s license
¶2 On November 30, 2002, a city of Everett police officer stopped Griffin for erratic driving. After learning Griffin’s identity, the officer arrested him on outstanding warrants. Officers later found crack cocaine in Griffin’s hat and in his sock. After being advised of his rights, Griffin explained to the officer that he had received the cocaine in exchange for giving someone a ride from Lynnwood to Everett.
¶3 Griffin was charged with one count of possession of cocaine. On March 26, 2003, he agreed to enter into the Snohomish County Drug Court (CHART) program. Under the terms of the agreement, the State would dismiss the charge if Griffin successfully completed the program. Griffin agreed that if he was terminated from the program, the trial judge could determine his guilt or innocence of the charge on the basis of documentary evidence submitted by the State.
f4 On August 13, 2003, after he repeatedly failed to appear for treatment, the trial court terminated Griffin from the CHART program. The court then found Griffin guilty of possession of cocaine and imposed a standard-range sentence. Based on the trial court’s finding that Griffin had a used a motor vehicle in the commission of the offense, the Department of Licensing is required to revoke
ANALYSIS
¶5 Under Apprendi v. New Jersey, any fact that increases the penalty for a crime beyond the “statutory maximum” must be proved to a jury beyond a reasonable doubt.
¶6 But Griffin’s argument assumes, without any discussion, that license revocation constitutes an additional penalty or “punishment” for purposes of Apprendi and Blakely. We find no authority supporting such a proposition.
¶7 In order to determine whether a particular penalty is criminal or civil, we look initially to the relevant statute and legislative intent.
¶8 RCW 46.20.285, which is located in a portion of chapter 46.20 RCW titled “Restricting the Driving Privilege,” mandates the revocation of a driver’s license following the defendant’s commission of a variety of offenses, all of which involve the use of a motor vehicle. RCW 46.20.285(4), at issue here, does not authorize revocation following any felony, but is restricted to situations in which the defendant used a motor vehicle in the commission of a felony.
¶9 Although neither side has directed our attention to any specific expression of legislative intent regarding RCW 46.20.285, the general rule in Washington has long been “the suspension or revocation of a driver’s license is not penal in nature and is not intended as punishment, but is designed solely for the protection of the public in the use of the highways.”
¶10 In State v. Hopkins,
f 11 But even if a statutory penalty is intended to be civil with a remedial purpose, this court must also consider whether it is “ ‘so punitive in form and effect’ ” as to constitute criminal punishment.
(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 rationally be connected is assignable for it; and (7) whether it appears excessive in relation to the alternative purpose.[13 ]
No one factor is dispositive.
f 12 Although clearly a significant burden, license revocation does not amount to an affirmative disability, which generally requires a showing of something “approaching the ‘infamous punishment’ of imprisonment.”
¶13 The foregoing factors, on balance, do not establish that license revocation is sufficiently punitive in form and effect as to amount to criminal punishment for constitutional purposes.
¶14 Griffin next contends that, in any event, the evidence was insufficient to support the trial court’s finding that he used a vehicle in the commission of the offense. He argues that because he concealed the cocaine in his clothing and not in the car, any use of the car was merely incidental to the possession, and the evidence was therefore insufficient to establish that he “used” the car in the commission of the offense.
¶15 When the underlying conviction is a possessory felony, RCW 46.20.285(4) requires that the possession “have some reasonable relation to the operation of a motor vehicle or . . . the use of the motor vehicle must contribute in some reasonable degree to the commission of the felony.”
¶16 Finally, Griffin contends that RCW 43.43.754, which required him to provide a biological sample for DNA (deoxyribonucleic acid) identification, violated his Fourth Amendment right against unreasonable searches. This
¶17 Affirmed.
Cox, C.J., concurs.
530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000)
542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).
Apprendi, 530 U.S. at 490.
Blakely, 542 U.S. at 303.
Hudson v. United States, 522 U.S. 93, 99, 118 S. Ct. 488, 139 L. Ed. 2d 450 (1997); In re Pers. Restraint of Metcalf, 92 Wn. App. 165, 963 P.2d 911 (1998).
Metcalf, 92 Wn. App. at 178.
Metcalf, 92 Wn. App. at 178.
State v. Scheffel, 82 Wn.2d 872, 879, 514 P.2d 1052 (1973); see also State v. Hopkins, 109 Wn. App. 558, 565, 36 P.3d 1080 (2001).
See Rowe v. Dep’t of Licensing, 88 Wn. App. 781, 946 P.2d 1196 (1997) (suspension of minor’s driver’s license following minor in possession of alcohol conviction served remedial purpose of protecting the public from drinking-and-driving minors).
109 Wn. App. 558, 36 P.3d 1080 (2001).
Hopkins, 109 Wn. App. at 563 (quoting former RCW 46.61.5055(1)).
Hudson, 522 U.S. at 104 (quoting United States v. Ursery, 518 U.S. 267, 290, 116 S. Ct. 2135, 135 L. Ed. 2d 549 (1996)); Metcalf, 92 Wn. App. at 178.
Metcalf, 92 Wn. App. at 180 (citing Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S. Ct. 554, 9 L. Ed. 2d 644 (1963)).
See Winchester v. Stein, 135 Wn.2d 835, 853, 959 P.2d 1077 (1998).
Hudson, 522 U.S. at 104 (quoting Flemming v. Nestor, 363 U.S. 603, 617, 80 S. Ct. 1367, 4 L. Ed. 2d 1435 (1960) (monetary sanctions and occupational debarment do not impose affirmative disability or restraint)).
See also Hudson, 522 U.S. at 104 (“ ‘revocation of a privilege voluntarily granted,’ such as [an occupational] debarment, ‘is characteristically free of the punitive criminal element’ ”) (quoting Helvering v. Mitchell, 303 U.S. 391, 399, 58 S. Ct. 630, 82 L. Ed. 917 (1938)).
Hudson, 522 U.S. at 105; see also Winchester, 135 Wn.2d at 852.
Hudson, 522 U.S. at 105.
See O’Day v. King County, 109 Wn.2d 796, 818, 749 P.2d 142 (1988) (one-year revocation of topless dancing license did not negate remedial intention of ordinance).
State v. McClendon, 131 Wn.2d 853, 867, 935 P.2d 1334 (1997) (quoting United States v. Halper, 490 U.S. 435, 447 n.7, 109 S. Ct. 1892, 104 L. Ed. 2d 487 (1989)).
See Metcalf, 92 Wn. App. at 180-81.
See McClendon, 131 Wn.2d at 869; Williams v. Dep’t of Licensing, 85 Wn. App. 271, 277, 932 P.2d 665 (1997); Scheffel, 82 Wn.2d at 877.
See In re Jorge G., 117 Cal. App. 4th 931, 12 Cal. Rptr. 3d 193 (2004) (“punishment” for due process purposes under Apprendi involves same analysis as “punishment” for purposes of ex post facto).
Because we conclude that the trial court’s finding did not increase the statutory maximum sentence, we do not address the State’s claim that Griffin waived his right to have the jury make factual determinations or that he stipulated to the facts when he stipulated that the trial court could determine his guilt on the basis of police reports and other documentary materials.
State v. Batten, 95 Wn. App. 127, 131, 974 P.2d 879 (1999) (defendant’s use of vehicle to conceal a handgun created sufficient nexus between possessory crime and use of vehicle to satisfy requirements of RCW 46.20.285(4)), aff’d, 140 Wn.2d 362, 997 P.2d 350 (2000).
122 Wn. App. 448, 94 P.3d 345 (2004).
See also State v. S.S., 122 Wn. App. 725, 94 P.3d 1002 (2004) (cheek swabs are authorized method of collecting biological samples for the DNA databank).
Concurrence Opinion
¶18 (concurring in result) — In the circumstances of this case, the license revocation did not constitute punishment. However, the majority opinion should not be interpreted as holding that a license revocation can never be a criminal sanction. The cases cited by the majority, which arise from administrative licensing proceedings, “show only that license revocation is a civil sanction when it is imposed as the result of an administrative proceeding, or as the result of a proceeding undertaken for the sole purpose of restricting a person’s privilege to drive. They do not hold that license revocation is inherently a civil sanction.” State v. Hopkins, 109 Wn. App. 558, 566, 36 P.3d 1080 (2001). For example, if a statutory scheme creates the possibility of both a civil and criminal license revocation proceeding arising from the same arrest, precedent does not require that both revocations be regarded as civil sanctions. Hopkins, 109 Wn. App. at 567.
¶19 Because the statute in this case does not manifest any legislative intent to use license revocation as a punishment, I conclude along with the majority that the finding did not increase the statutory maximum sentence.
