THE STATE OF OHIO, APPELLANT, v. GUSTAFSON, APPELLEE. THE STATE OF OHIO, APPELLEE, v. MILLER ET AL., APPELLANTS.
Nos. 95-1377 and 95-1466; Nos. 95-1271, 95-1303, 95-1304, 95-1305 and 95-1307
Supreme Court of Ohio
July 30, 1996
76 Ohio St.3d 425 | 1996-Ohio-299
Motor vehicles—Driving while intoxicated—License suspended administratively, pursuant to R.C. 4511.191, subsequent to arrest for violation of R.C. 4511.19—Subsequent prosecution of criminal drunk driving not precluded by Double Jeopardy Clauses of Ohio and United States Constitutions.
- The Double Jeopardy Clauses of the Fifth Amendment to the United States Constitution and Section 10, Article I of the Ohio Constitution do not preclude criminal prosecution and trial of motorists for driving in violation of
R.C. 4511.19 based upon, and subsequent to, the imposition of an administrative license suspension pursuant toR.C. 4511.191 . - An administrative license suspension imposed pursuant to
R.C. 4511.191 , and a criminal driving-under-the-influence prosecution for violation ofR.C. 4511.19 , arising out of the same arrest, constitute separate proceedings for double jeopardy purposes. - For purposes of determining the protection afforded by the Double Jeopardy Clauses of the United States and Ohio Constitutions, an administrative license suspension imposed pursuant to
R.C. 4511.191 ceases to be remedial and becomes punitive in nature to the extent the suspension continues subsequent to adjudication and sentencing for violation ofR.C. 4511.19 . - Because an administrative license suspension loses its remedial character upon judicial adjudication and sentencing for violation of
R.C. 4511.19 , the Double Jeopardy Clauses of the United States and Ohio Constitutions preclude continued recognition of an administrative license suspension followingjudicial imposition of criminal penalties for driving while under the influence of intoxicating drugs, including alcohol. - A court has judicial power pursuant to Sections 1 and 4, Article IV of the Ohio Constitution to order the termination of an administrative license suspension at the time of criminal sentencing for violation of
R.C. 4511.19 , in that continued recognition of the administrative license suspension would result in an unconstitutional application ofR.C. 4511.191 to the criminal offender.
(Nos. 95-1377 and 95-1466—Submitted February 7, 1996—Decided July 30, 1996.)
CERTIFIED by and APPEAL from the Court of Appeals for Mahoning County, No. 94 C.A. 232.
(Nos. 95-1271, 95-1303, 95-1304, 95-1305 and 95-1307—Submitted February 7, 1996—Decided 1996.).
APPEALS from the Court of Appeals for Auglaize County, Nos. 2-94-32, 2-95-3, 2-95-6, 2-95-4, 2-95-7.
{¶ 1} Before the court are consolidated causes presenting issues concerning application of the Double Jeopardy Clauses of the Fifth Amendment to the United States Constitution and Article I, Section 10 of the Ohio Constitution to proceedings instituted following the arrest of drivers for alleged violation of Ohio‘s criminal drunk driving law,
{¶ 2} Case No. 95-1377. At 12:15 a.m. on November 27, 1993, Robert D. Gustafson Jr. was arrested and charged with a speeding violation and violations of
{¶ 3} Gustafson consented to a breath-alcohol test, and tested above statutory DUI limits at .115. Pursuant to
{¶ 4} Although the ninety-day ALS period presumably expired at the end of February 1994, the record before us fails to disclose whether Gustafson subsequently secured his license, and if so, when. Nevertheless, on October 14, 1994 Gustafson filed a motion to dismiss the criminal DUI charge which remained, claiming that continued prosecution of that criminal charge would violate his constitutional right pursuant to the Eighth Amendment to be free from twice being placed in jeopardy. The trial court granted the motion. The Seventh District Court of Appeals affirmed dismissal of the criminal DUI charge on double jeopardy grounds.
{¶ 5} Case No. 95-1271. At 1:08 a.m. on March 26, 1994, Fred W. Miller, Sr. was arrested and issued three traffic tickets. Miller was charged with a speeding violation, a violation of
{¶ 6} At his arraignment on March 31, 1994, Miller appealed the ALS pursuant to
{¶ 8} On September 13, 1994 Miller filed a motion seeking to reverse the judgment of conviction and to bar the imposition of criminal penalties, claiming further sentencing would violate double jeopardy principles. The trial court overruled the motion.
{¶ 9} Miller was thereafter sentenced to one year in jail and a fine of $500. The court ordered all but thirty days of the jail sentence to be suspended conditioned on compliance with imposed terms of probation. In addition, Miller‘s vehicle was ordered immobilized for one hundred eighty days retroactive to the date of arrest. The ALS was ordered terminated, and, in consequence of his conviction, the court ordered Miller‘s license suspended for ten years, retroactive to the date of arrest, as authorized by
{¶ 10} The Third District Court of Appeals affirmed the conviction and sentence imposed by the trial court.
{¶ 11} Case No. 95-1303. At 12:45 a.m. on September 10, 1994, Michael T. Smith was arrested and issued three traffic tickets. Smith was charged with a violation of
{¶ 12} At his arraignment Smith appealed the ALS. Thereafter, Smith requested continuance of the ALS hearing. Smith was granted limited driving privileges enabling him to drive to and from work and for household needs.
{¶ 14} Smith was sentenced to three days in jail and a fine of $500. The court ordered the jail sentence and $300 of the fine to be suspended conditioned on compliance with imposed terms of probation. The ALS was ordered terminated, but the court, pursuant to
{¶ 15} The Third District Court of Appeals affirmed the conviction and sentence imposed by the trial court.
{¶ 16} Case No. 95-1304. On May 3, 1994, James L. Brown was arrested and issued two traffic tickets. Brown was charged with violations of
{¶ 17} Brown appealed the ALS, and requested a continuance of the ALS hearing.
{¶ 18} Brown filed a motion to dismiss the criminal DUI charges pending against him on double jeopardy grounds, which was denied. Upon denial of his motion, Brown entered a plea of no contest to the charge of violation of
{¶ 20} The Third District Court of Appeals affirmed the conviction and sentence imposed by the trial court.
{¶ 21} Case No. 95-1305. On June 17, 1994, Kenneth L. Roth was arrested and issued two traffic tickets. Roth was charged with violations of
{¶ 22} The DUI charge was Roth‘s third DUI-related offense within the preceding five-year period. The record does not show, however, whether Roth had refused chemical testing in connection with his previous convictions. By law, the duration of Roth‘s ALS, had he in fact refused on two prior occasions to take a chemical test at the time of the DUI arrest, would be three years, i.e., until June 16, 1997.
{¶ 23} Roth appealed the ALS, and sought a continuance of the ALS hearing. In addition, Roth filed a motion to dismiss the criminal DUI charges pending against him on double jeopardy grounds. Upon denial of his motion, Roth entered a plea of no contest to the charge of violation of
{¶ 24} Roth was sentenced to one year in jail and a fine of $1,000. His driver‘s license was judicially suspended for ten years, retroactive to the date of arrest, as authorized by
{¶ 25} The Third District Court of Appeals affirmed the conviction and sentence imposed by the trial court.
{¶ 26} Case No. 95-1307. On September 4, 1994, Sally A. Bayman was arrested and charged with violations of
{¶ 27} At her arraignment Bayman appealed the ALS. Later, Bayman requested a continuance of the ALS hearing. Thereafter, Bayman filed a motion to dismiss the criminal DUI charges pending against her on double jeopardy grounds, which was denied. Upon denial of her motion, Bayman entered a plea of no contest to both charges, and judgments of conviction were entered.
{¶ 28} For the DUI violation, Bayman was sentenced one year in jail and a fine of $500. Her vehicle was ordered immobilized for six months, retroactive to the date of arrest. The court ordered all but fifteen days of the jail sentence to be suspended, conditioned on compliance with imposed terms of probation. For driving while under a previous OMVI license suspension, Bayman was sentenced to six months in jail, concurrent with the jail sentence imposed for the DUI violation, and an additional $250 fine. The court further order Bayman‘s driver‘s license suspended for ten years, retroactive to the date of arrest, as authorized by
{¶ 30} The above causes are now before this court on consolidated appeals as of right. In addition, the Seventh District Court of Appeals found its judgment in Gustafson to conflict with the decision in the Miller case, and entered an order certifying a conflict. That cause is now also before this court upon our determination that a conflict exists (case No. 95-1377).
James A. Philomena, Mahoning County Prosecuting Attorney, Michele G. Cerni, Assistant Prosecuting Attorney; Betty D. Montgomery, Attorney General, Jeffrey S. Sutton, State Solicitor, Susan E. Ashbrook and Andrew S. Bergman, Assistant Attorneys General, for appellant in case Nos. 95-1377 and 95-1466.
Newman, Olson & Kerr and Martin S. Delahunty III, for appellee in case Nos. 95-1377 and 95-1466.
W. Andrew Hasselbach, urging affirmance for amicus curiae, Ohio Association of Criminal Defense Lawyers, in case Nos. 95-1377 and 95-1466.
Henry M. Jasny, pro hac vice, urging reversal for amici curiae, Advocates for Highway and Auto Safety, and Mothers Against Drunk Driving, National Headquarters, in case Nos. 95-1377 and 95-1466.
Baker & Hostetler and Richard W. Siehl, urging reversal for amicus curiae, Mothers Against Drunk Driving, State of Ohio, in case Nos. 95-1377 and 95-1466.
Baker & Hostetler and William W. Falsgraf, urging reversal for amicus curiae, American Alliance for Rights and Responsibilities, in case Nos. 95-1377 and 95-1466.
Michele McDowell Fields, pro hac vice, urging reversal for amicus curiae, Insurance Institute for Highway Safety, in case Nos. 95-1377 and 95-1466.
Wilson Law, Eric J. Wilson and Gregory Wilson, for appellants in case Nos. 95-1271, 95-1303, 95-1304, 95-1305 and 95-1307.
MOYER, C.J.
{¶ 31} Before this court stand six Ohio drivers whose licenses were suspended administratively, pursuant to
{¶ 32} We begin our analysis by setting forth a simplified statement of the procedures now governing administrative license suspensions in Ohio. In 1993 the Ohio General Assembly enacted comprehensive legislation1 designed to combat the devastating problems associated with drunk driving on Ohio highways. Included in the legislation were revisions to Ohio‘s implied consent statute,
{¶ 33} A driver may appeal the administrative license suspension at an initial appearance before the criminal court hearing the DUI charge, which, unless continued, occurs within five days of arrest.
{¶ 34} Following the prescribed term of the suspension, the driver may request the BMV to return or reissue the suspended license, which the BMV must do upon payment of a $250 reinstatement fee and proof of compliance with Ohio‘s financial responsibility requirements.
I
Double Jeopardy Analysis
{¶ 35} The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution provides that “[n]o person shall *** be subject for the same offense to be twice put in jeopardy of life or limb,” and is applicable to the states through the Fourteenth Amendment. Benton v. Maryland (1969), 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707; State v. Tolbert (1991), 60 Ohio St.3d 89, 90, 573 N.E.2d 617, 619. Similarly, Section 10, Article I of the Ohio Constitution provides that “[n]o person shall be twice put in jeopardy for the same offense.” Ohio courts have historically treated the protections afforded by the Double Jeopardy Clauses of the Ohio Constitution and the United States Constitution as coextensive. See State v. Konicek (1984) 16 Ohio App.3d 17, 17-18, 16 OBR 18, 18-19, 474 N.E.2d 363, 364; State v. Moss (1982), 69 Ohio St. 2d 515, 517, 23 O.O.3d 447, 448, 433 N.E.2d 181, 184; State v. Royster (1982), 3 Ohio App. 3d 442, 443, 3 OBR 521, 522, 446 N.E.2d 190, 192. We therefore proceed based on the premise that the Double Jeopardy Clause of
{¶ 36} Prior to the decisions of the United States Supreme Court in Halper, courts uniformly accepted the principle that sanctions imposed pursuant to “civil” or “administrative” proceedings did not trigger the Double Jeopardy Clause so as to preclude either subsequent criminal prosecutions or criminal punishments. Helvering v. Mitchell (1938), 303 U.S. 391, 82 L. Ed. 917, 58 S. Ct. 630; United States v. Ward (1980), 448 U.S. 242, 248, 100 S. Ct. 2636, 2641, 65 L.Ed.2d 742, 749. In Halper, however, the court recognized that a line could be crossed at which civil damage recoveries could become “punishments” for double jeopardy purposes.
{¶ 37} In Halper, the manager of a medical laboratory Medicaid provider was indicted, convicted, and sentenced on sixty-five criminal fraud counts. Subsequently, the federal government brought suit pursuant to the False Claims Act (Sections 3729-2731, Title 31, U.S. Code), claiming it was entitled to judgment for more than $130,000 in “civil penalties,” that sum representing the statutorily established maximum penalty of $2,000 on each of the sixty-five counts. The government‘s actual losses, however, totaled only $580, plus the costs of investigating and prosecuting the case.
{¶ 38} The Halper court recognized 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, 109 S.Ct. at 1901, 104 L.Ed.2d at 501, fn. 7. The court cited Kennedy v. Mendoza-Martinez (1963), 372 U.S. 144, 168, 83 S.Ct. 554, 567, 9 L.Ed.2d 644, 660-661, in recognizing that a sanction
{¶ 39} More recently, the United States Supreme Court again considered the issue of “criminal punishment” vis-a-vis “civil sanction” in Austin v. United States (1993), 509 U.S. 602, 113 S.Ct. 2801, 125 L.Ed.2d 488. Austin did not involve alleged violation of the Double Jeopardy Clause, but rather presented a challenge to drug-related forfeitures of property based on the Excessive Fines Clause of the Eighth Amendment to the United States Constitution. Nevertheless, the court found its prior analysis in Halper to be helpful in determining whether the forfeiture of property constituted “punishment” for purposes of the Excessive Fines Clause. The Austin court concluded that forfeiture proceedings “historically have been understood, at least in part, as punishment,” id. at ____, 113 S.Ct. at 2810, 125 L.Ed.2d at 503, and that forfeitures constituted fines, i.e., “‘payment to a sovereign as punishment for some offense,‘” id. at ___, 113 S.Ct. at 2812, 125 L.Ed.2d at 505. The case was remanded to the trial court for determination of whether the forfeiture at issue was excessive in relation to the offense committed, or, alternatively, represented a fine which fell within constitutional, nonexcessive, limits. Id.
{¶ 41} To summarize the holdings of the Halper-Austin-Kurth Ranch trilogy, in Halper the Supreme Court held that “civil” damage assessments can cross a line beyond which the assessments become nonremedial and a punishment for double jeopardy purposes; in Austin the court held that “civil” forfeitures can cross a line beyond which that sanction becomes nonremedial and a punishment for Eighth Amendment purposes; and in Kurth Ranch the court held that “civil” taxes can cross a line beyond which they lose their character as true taxes and become a punishment for double jeopardy purposes.2
A
“Multiple Prosecution” Analysis
{¶ 43} “The risk to which the [Double Jeopardy] Clause refers is not present in proceedings that are not ‘essentially criminal.‘” Breed v. Jones (1975), 421 U.S. 519, 528, 95 S. Ct. 1779, 1785, 44 L.Ed.2d 346, 354-355. Nor does the Double Jeopardy Clause preclude criminal prosecution based on the fact that civil administrative proceedings based on the same conduct have previously been initiated. Helvering, supra; Ward, supra; United States v. One Assortment of 89 Firearms (1984), 465 U.S. 354, 359, 104 S. Ct. 1099, 1103, 79 L.Ed.2d 361, 366; Dept. of Natural Resources v. Prescott, (1989), 42 Ohio St.3d 65, 68, 537 N.E.2d 204, 207.
{¶ 44} Jeopardy attaches, so as to preclude subsequent criminal proceedings, at different points in time depending on the nature of the proceeding in question. Where a criminal defendant has invoked the right to trial by jury, jeopardy does not attach so as to preclude subsequent criminal proceedings until the jury is impaneled and sworn. Crist v. Bretz (1978), 437 U.S. 28, 57 L. Ed. 2d 24, 98 S. Ct. 2156. Similarly, jeopardy does not attach in a criminal bench trial until the court begins to hear evidence. Serfass v. United States (1975), 420 U.S. 377, 95 S. Ct. 1055, 43 L.Ed.2d 265. In other situations, jeopardy based on having undergone an initial criminal trial attaches after acquittal or conviction. Brown v. Ohio (1977), 432 U.S. 161, 165, 97 S. Ct. 2221, 2225, 53 L.Ed.2d 187, 194.
{¶ 45} In sum, insofar as the Double Jeopardy Clause precludes successive criminal prosecutions, the proscription is against a second criminal trial after jeopardy has attached in a first criminal trial.
{¶ 46} We do not read the Halper-Austin-Kurth Ranch trilogy as altering these well-settled principles, nor do we believe that an administrative license suspension constitutes a proceeding to which jeopardy attaches so as to preclude subsequent criminal prosecution for drunk driving.
{¶ 47} Criminal prosecution after an immediate ALS does not result in the defendant being subjected to a second “trial,” because he has not undergone a first “trial.” The immediate deprivation of a driver‘s license through an automatic license suspension as provided by
{¶ 48} We agree with the analyses and conclusions of those courts. Double jeopardy prohibitions do not preclude the state from trying a defendant criminally for violation of
{¶ 49} Our conclusion is supported by the United States Supreme Court‘s ultimate disposition of Halper. Although recognizing that prior criminal actions had resulted in convictions, the Halper court found no fault with the initiation of subsequent civil proceedings or with the imposition of both civil and criminal sanctions. Rather, the court remanded the cause for further proceedings to assess a civil sanction which did not “cross the line” to punishment. Similarly, in Austin, the court acknowledged the legitimacy of civil forfeiture proceedings brought subsequent
“[U]nder the Supreme Court‘s holding in Halper, the government is entitled to convict and punish an individual in a criminal prosecution and also impose a penalty upon her in a separate civil proceeding, even though both sanctions are based upon the same conduct. *** [I]f a civil penalty that constitutes ‘punishment’ for double jeopardy purposes is held to bar the government from subsequently prosecuting the individual criminally for the same conduct, the government will be deprived of the opportunity to obtain a criminal conviction and to impose the full range of permissible sanctions, both criminal and civil, upon the individual. Such a result appears to be inconsistent with Halper.” Rudstein, Civil Penalties and Multiple Punishment Under the Double Jeopardy Clause: Some Unanswered Questions (1993), 46 Okla.L.Rev. 587, 602-603.
{¶ 50} We therefore hold that, where an administrative license suspension occurs at the time of arrest, subsequent motions to dismiss criminal DUI proceedings based on double jeopardy principles should be overruled. The Double Jeopardy Clauses of the Fifth Amendment to the United States Constitution and Section 10, Article I of the Ohio Constitution do not preclude criminal prosecution and trial of motorists for driving in violation of
B
“Separate Proceedings” Analysis
{¶ 51} The Double Jeopardy Clause affords protection not only from multiple prosecutions, but also from imposition of multiple punishments in separate and
{¶ 52} By the express terms of
{¶ 53} The fact that the General Assembly has provided an opportunity for a post-suspension administrative appeal of the ALS in the court in which the DUI charges are filed does not change this conclusion. Although the administrative appeal of the ALS may (but need not) be presided over by the same judicial officer as presides over the criminal DUI case, that circumstance does not consolidate the administrative
{¶ 54} Both the Third and the Seventh District Courts of Appeals held in the causes sub judice that the ALS and the criminal proceedings take place separately for double jeopardy purposes. We concur in their analyses of this issue. We hold that an ALS imposed pursuant to
C
“Multiple Punishment” Analysis
{¶ 55} Because we hold (1) that the state may criminally prosecute DUI charges subsequent to an ALS, and (2) that the administrative license suspension is imposed in proceedings separate from the criminal prosecution, the Double Jeopardy Clause is applicable in Ohio ALS cases, if at all, based on the third prohibition described in Halper, i.e. the prohibition against multiple punishments for the same offense.
{¶ 56} We first determine that an administrative license suspension, whether based on a test failure or a test refusal, is a sanction based on the same offense or conduct as is subsequent prosecution of a charge of violating
{¶ 57} We reject the argument that a refusal ALS is based on a different offense from that at issue in a subsequent DUI prosecution alleging violation of
{¶ 59} However, the act of refusing a chemical test for alcohol, standing alone, does not constitute a criminal “offense” of any kind. Ohio police officers are not statutorily authorized to randomly demand chemical alcohol testing of Ohio drivers in the absence of an arrest for DUI, and there is no criminal charge which can be lodged for the act of refusing a chemical test. Nor does
{¶ 60} Were it the refusal itself which constituted the conduct for which an ALS is imposed, there would be no logical justification for the statute to authorize termination of a refusal ALS upon the entry of a guilty or not contest plea to DUI. Yet
{¶ 61} In short, an
{¶ 62} Pursuant to Halper and its progeny, we therefore must determine whether an ALS constitutes a first “punishment” for double jeopardy purposes, so as to preclude imposition of subsequent criminal punishment for violation of Ohio‘s DUI law, or conversely, may “fairly be characterized as remedial.” Halper, supra, at 449, 109 S.Ct. at 1902, 104 L.Ed.2d at 502.
{¶ 63} This court has historically and repeatedly characterized driver‘s license suspensions imposed pursuant to Ohio‘s implied consent statutes as being civil in nature and remedial in purpose. State v. Starnes (1970), 21 Ohio St.2d 38, 50 O.O.2d 84, 254 N.E.2d 675; Hoban v. Rice (1971), 25 Ohio St.2d 111, 54 O.O.3d 254, 267 N.E.2d 311; Andrews v. Turner (1977), 52 Ohio St.2d 31, 6 O.O.3d 149, 368 N.E.2d 1253. Our prior law is thus consistent with that in the overwhelming majority of states. See Luk v. Commonwealth (1995), 421 Mass. 415, 425, 658 N.E.2d 664, 671-672, at fn. 16 (containing a lengthy compilation of recent ALS double-jeopardy cases finding administrative license suspensions to be non-punitive and remedial in purpose). See, also, e.g., State v. Savard (Me. 1995), 659 A.2d 1265; State v. Maryland (1995), 666 A.2d 128, 340 Md. 235; State v. Talavera (1995), 127 Idaho 700, 905 P.2d 633. Similarly, the United States Supreme Court has recognized that states possess a compelling interest in promptly removing drunken drivers from the road in order to protect public safety. Mackey v. Montrym (1978) 443 U.S. 1, 17-18, 61 L.Ed.2d 321, 99 S.Ct. 2612, 2620-2621, 61 L.Ed.2d 321, 334.
{¶ 64} Nevertheless, we remain cognizant of the underlying theme of Halper-Austin-Kurth Ranch that sanctions which may initially be justified as remedial can simply go too far, to the point that they must be deemed “punishment” for double jeopardy purposes. Our precedent, as well as that of the majority of other states, supports the conclusion that administrative license suspensions are, at least in their
{¶ 65} However, the 1993 amendments to
{¶ 66} Our interpretation of Halper, Austin, and Kurth Ranch causes us to conclude that
{¶ 67} We have reviewed numerous cases from other jurisdictions in which defendants have challenged drunk driving prosecutions on double jeopardy grounds subsequent to administrative license suspension. Those jurisdictions are nearly uniform in finding the imposed suspensions before them to be “remedial” in nature, so as to satisfy a Halper double-jeopardy analysis. However, our review does not disclose a case in which an administrative license suspension statute imposing sanctions as severe as
{¶ 69} We conclude that an automatic and immediate administrative license suspension “crosses the line,” transforming an initially remedial license suspension into a punishment for double jeopardy purposes, at the point of criminal sentencing after a DUI conviction for violation of
{¶ 70} Accordingly, a sentencing court has judicial power pursuant to
{¶ 71} Some defendants argue that
{¶ 72} We therefore hold that an administrative license suspension ceases to be remedial and becomes punitive in nature to the extent it is deemed to continue subsequent to conviction and sentencing for violation of
II
Dispositions
{¶ 73} Gustafson has not yet stood criminal trial to adjudicate the DUI charge against him, and our conclusion that the lower court erred in precluding further prosecution requires a reversal and remand of his case for further proceedings to resolve the criminal charge of violation of
{¶ 74} Upon remand, the ultimate disposition of Gustafson‘s criminal case is a matter for determination in the first instance by the trial court. However, this court takes judicial notice of the fact that numerous cases presenting double jeopardy challenges similar to Gustafson‘s are currently pending in the courts of Ohio. We therefore include several additional observations which may prove useful to trial courts in determining those cases.
{¶ 75} On remand, Gustafson presumably will be adjudicated either “guilty” or “not guilty” of the criminal DUI charge against him. Presumably Gustafson‘s
{¶ 76} We have concluded that a short-term administrative license suspension may “fairly be characterized as remedial” in purpose insofar as it provides for interim protection of the public pending judicial determination of the driver‘s guilt or innocence of drunk driving. A first-time defendant charged with that crime has a statutory right to obtain a speedy trial of the DUI charge within ninety days.
{¶ 77} If, alternatively, Gustafson is adjudicated not guilty of the DUI charge, his double jeopardy arguments necessarily fail. A “not guilty” adjudication precludes imposition of criminal punishment. A court need not engage in a Halper analysis to determine whether a sanction was “remedial” or constitutes “punishment” when a single sanction has been imposed. In such a circumstance, double jeopardy considerations do not arise.
{¶ 78} The remaining cases pending before this court are cases in which DUI prosecutions have proceeded to judgment of conviction and sentencing following the overruling of motions to dismiss the DUI charges. We thus are called upon to determine whether the decisions of the lower courts in those cases are consistent with our holdings herein.
“A suspension of the driver‘s *** license *** for refusal to submit to a chemical test to determine the alcohol, drug, or alcohol and drug content of the person‘s blood, breath, or urine pursuant to division (E) of this section, shall be terminated by the registrar upon receipt of notice of *** conviction after entering a plea of no contest under Criminal Rule 11 to, operating a vehicle while under the influence of alcohol, *** if the offense for which the plea is entered arose from the same incident that led to the suspension or denial.”
{¶ 80} Because the statute expressly authorizes termination of an ALS upon a chemical-test refusal followed by a “no contest” plea, Bayman and Roth‘s causes are affirmed for the reasons discussed herein and remanded, with instructions that the trial court issue an order to BMV to terminate their respective ALSs, retroactive to the date of sentencing on the DUI convictions.
{¶ 81} We affirm the judgments of the lower court as to appellants Miller, Brown and Smith, who consented to breath-alcohol testing, but failed the chemical test. Upon entry of conviction and sentencing, their administrative license suspensions were properly ordered terminated, as at that point in time their ALSs ceased to be “remedial” in purpose as that term is used in the double-jeopardy context. Continued recognition of each defendant‘s ALS subsequent to conviction and criminal sentencing would therefore result in these appellants being punished twice in separate proceedings based on the same conduct of drunk driving. Thus,
DOUGLAS, RESNICK, F.E. SWEENEY and KARPINSKI, JJ., concur.
DOUGLAS, J., concurs separately.
PATTON and COOK, JJ., concur in part and dissent in part.
JOHN T. PATTON, J., of the Eighth Appellate District, sitting for WRIGHT, J.
DIANE KARPINSKI, J., of the Eighth Appellate District, sitting for PFEIFER, J.
DOUGLAS, J., concurring.
{¶ 82} I concur in the majority‘s comprehensive and well-reasoned opinion holding that the initiation of separate criminal proceedings after the imposition of an administrative license suspension does not violate the protections afforded individuals by the Double Jeopardy Clauses of the United States and Ohio Constitutions. I write separately only to state my reasons for concurring in the majority opinion and to summarize what I believe to be some of the findings of the majority. Further, I believe that our holding in State v. Hochhausler (1996), 76 Ohio St.3d 455, 668 N.E.2d 457, paragraph two of the syllabus, will clarify further any future double jeopardy or due process claims that may arise with respect to administrative license suspensions.
{¶ 83} The
{¶ 84} With respect to the underlying purpose of
{¶ 85} Further, the right to drive a motor vehicle in Ohio is not constitutionally guaranteed. In fact, the right to possess a driver‘s license is not a substantial private interest but a state regulated privilege. Maumee v. Gabriel (1988), 35 Ohio St.3d 60, 63, 518 N.E.2d 558, 561. Clearly, the right to operate motor vehicles on public roadways of this state may be regulated by the lawful exercise of the police power for the benefit of public safety and welfare. In this regard, a sanction which involves the suspension of a privilege that was voluntarily granted supports a finding that it is “characteristically free of the punitive criminal element.” Helvering v. Mitchell (1938), 303 U.S. 391, 399, 58 S.Ct. 630, 633, 82 L.Ed. 917, 922.
{¶ 87} The ability of a trial court to stay or continue an administrative license suspension at the initial appearance further supports the conclusion that
{¶ 88} The number of instances of individuals driving while under the influence of intoxicating substances continues to be alarming. To obtain a true understanding of the magnitude of the problem, one need only observe the number of OMVI cases that have flooded the courts in this state. Recognizing the problem, the General Assembly has taken strong action to stem the tide. Its efforts to improve public safety should be applauded. I believe that our recent decisions in this area have achieved a proper balance -- protecting innocent motorists and pedestrians from individuals who chose to drink and drive, while also recognizing constitutional safeguards that are afforded to all citizens.
PATTON, J., concurring in part and dissenting in part.
{¶ 89} I join with paragraphs one and two of the syllabus, but dissent from paragraphs three, four and five of the syllabus. Like Justice Cook, I believe double jeopardy is not implicated by the ALS statute, but wish to add some additional thoughts.
{¶ 90} I agree with Justice Cook‘s analysis that
{¶ 91} Just this term in Dobbins v. Ohio Bur. of Motor Vehicles (1996), 75 Ohio St.3d 533, 537, 664 N.E.2d 908, 911, we stated that
{¶ 92} Driving while intoxicated and refusing to take a chemical test are separate actions for purposes of double jeopardy analysis. The majority‘s view that these separate actions are so “inextricably intertwined” as to constitute the same offense overlooks the underlying purpose of the refusal statute.
{¶ 93} The General Assembly instituted the ALS as a means of facilitating the state‘s interest in proving drunk driving offenses; hence, the ALS simply enforces the driver‘s implied consent to chemical testing. This implied consent to chemical testing is a condition of securing the privilege to drive a motor vehicle. We said as much in Dobbins, when we found that the implied consent statute is “‘designed to discourage any person from refusing to take the tests when he is arrested for driving while under the influence.‘” Id. at 539, 664 N.E.2d at 912.
{¶ 94} Nearly every component of
{¶ 95} This framework is entirely in keeping with the legislature‘s intent to enforce the implied consent provisions. The refusal to take the chemical test is not criminal conduct, but it is a sanction for failing to live up to the conditions prescribed for obtaining and holding a driver‘s license. We have upheld the implied consent statute on numerous occasions, and in other contexts relating to licensing, stated, “Clearly the license is a personal privilege subject to reasonable restrictions and revocation by the issuing authority.” Ohio State Med. Bd. v. Miller (1989), 44 Ohio St.3d. 136, 140, 541 N.E.2d 602, 605, citing Lap v. Axelrod (1983), 95 App.Div. 457, 467 N.Y. S.2d 920. By imposing an administrative license suspension for refusing to take a chemical test, the state does no more than enforce a condition of obtaining a license.
{¶ 96} I also believe United States v. Ursery (1996), 518 U.S. ___, 116 S.Ct. 2135, 135 L.Ed.2d 549, 1996 WL 340815, has a far broader reach. though Ursery limited its discussion to in rem forfeitures, there can be no doubt that decision disavows the reasoning of the Halper-Austin-Kurth Ranch trilogy utilized by the majority.
{¶ 97} Crucial to the majority‘s analysis is the notion that under Halper,
“Whether a particular sanction ‘cannot fairly be said solely to serve a remedial purpose’ is an inquiry radically different from that we have traditionally
employed in order to determine whether, as a categorical matter, a civil sanction is subject to the Double Jeopardy Clause. Yet nowhere in Halper does the Court purport to make such a sweeping change in the law, instead emphasizing repeatedly the narrow scope of the decision. Halper, supra, at 449 [109 S.Ct. at 1902, 104 L.Ed.2d at 502] (announcing rule for ‘the rare case‘). If the ‘general rule’ of Justice Stevens 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. Justice Stevens’ interpretation of Halper is both contrary to the decision itself and would create an unworkable rule inconsistent with well established precedent.” (Emphasis added in part.) Ursery, 518 U.S. at ___, 116 S.Ct. at 2146, 135 L.Ed.2d at 566, fn. 2.
{¶ 98} The majority does not apply this interpretation of Halper, but instead tries to distinguish it by noting Halper involved in rem forfeiture while this case does not. This is a distinction without a meaning. The United States Supreme Court forcefully limited Halper, finding an in rem forfeiture would be subject to the Double Jeopardy Clause when the “‘clearest proof‘” showed that an in rem forfeiture is “‘so punitive either in purpose or effect‘” that it became the equivalent of a criminal proceeding. Id. at ___ , 116 S.Ct. at 2148, 135 L.E.2d at 569, fn. 3.
{¶ 99} There may be a punitive element to the ALS, but that consequence comes only as a result of enforcing the implied consent provisions, not as a matter of driving while intoxicated. Ursery held a remedial sanction can carry with it an unavoidable component of retribution or punishment, but that fact alone is not sufficient to show a punitive purpose behind the statute. The majority must show by the “clearest proof” that the license suspension is so punitive either in purpose or effect that it becomes criminal punishment. Yet, we have consistently found the ALS statute is civil and remedial in purpose, a finding the majority reaffirms today.
{¶ 100} The majority‘s view that the short suspension periods set forth in
{¶ 101} Of course, the suspension periods in
{¶ 102} Finally, even if the majority correctly uses Halper as the basis of its double jeopardy analysis,
{¶ 103} Under somewhat closer facts, the courts have held that a prisoner‘s forty-five-day disciplinary segregation following a conviction for institutional assault sufficiently related to the government‘s remedial interest in maintaining prison order that it did not constitute punishment for double jeopardy purposes. See, e.g., United States v. Hernadez-Fundora (C.A.2, 1995), 58 F.3d 802; see, also, State v. Keller (1976), 52 Ohio App.2d 217, 6 O.O.3d 235, 369 N.E.2d 798.
{¶ 104} And, in United States v. Stoller (C.A.1, 1996), 78 F.3d 710, the court found an administrative debarment imposed by the Federal Deposit Insurance Corporation did not constitute a punishment for double jeopardy purposes so as to bar a subsequent criminal prosecution under federal banking laws. See, also, United States v. Hudson (C.A.10, 1994), 14 F.3d 536 (same); cf. Manoccio v. Kusserow (C.A.11, 1992), 961 F.2d 1539 (physician‘s five-year debarment from federal Medicare program not barred by physician‘s prior conviction on Medicare fraud stemming from the same events).
{¶ 105} The General Assembly intended
{¶ 106} By enacting the “no stay” provisions of
{¶ 107}
{¶ 108} The obvious question, then, is why would a driver take the breath test? Suppose a driver receives an ALS for a third refusal to take a test in the previous five years. The driver appeals the suspension at an initial hearing held one day following the arrest. The trial court upholds the ALS, but stays execution of the ALS pending the outcome of the drunk driving charge. Regardless of the outcome of that drunk driving charge, the ALS now terminates upon either acquittal or judgment of conviction. As a practical matter, the driver has suffered only a one-day loss in driving privileges, a minor inconvenience, in exchange for depriving the state of conclusive proof from the results of a chemical test.
{¶ 109} This result is contrary to the obvious intent and sound policy which prompted the General Assembly to enact the statute. If
COOK, J., concurring in part and dissenting in part.
{¶ 110} I concur in paragraphs one and two of the syllabus. However, I respectfully dissent from paragraphs three, four and five. I disagree with the majority‘s conclusion that the Halper-Austin-Kurth Ranch “trilogy” mandates a finding that the ALS constitutes punishment. The recent United States Supreme Court pronouncement in United States v. Ursery (1996), 518 U.S. ___, 116 S.Ct. 2135, 135 L.Ed.2d 549, 64 USLW 4565, so limits the applicability of those cases to their individual facts as to render discussion of them as a group inapposite.
{¶ 111} Unless the ALS sanction is intended as punishment, such that the proceeding is essentially criminal in character, the Double Jeopardy Clause is not applicable. United States v. One Assortment of 89 Firearms (1984), 465 U.S. 354, 362, 104 S.Ct. 1099, 1105, 79 L.Ed.2d 361, 368. In Ursery, the Supreme Court employed the two-part analysis articulated in 89 Firearms, supra, to determine whether an in rem civil forfeiture proceeding constituted punishment. 518 U.S. at ___, 116 S.Ct. at 2146-2148, 135 L.Ed.2d at 566-569, 64 USLW at 4571. In reaching its conclusion, the Ursery court rejected the notion that the Halper-Austin-Kurth Ranch trilogy accomplished a “radical jurisprudential shift” in double jeopardy analysis. Id. at ___, 116 S.Ct. at 2143-2144, 135 L.Ed.2d at 562-564, 64 USLW at 4569. Rather, the court limited application of the “trilogy” to the facts presented in them. For example, the court limited the Halper proportionality test to in personam civil penalties, the Kurth Ranch analysis to tax proceedings, and Austin to civil forfeitures under the Excessive Fines Clause. Id. at ___, 116 S.Ct. at 2146-2148, 135 L.Ed.2d at 566-569, 64 USLW at 4571. The court stressed that “[n]one of those cases dealt with the subject of this case: in rem civil forfeitures for purposes of the Double Jeopardy Clause.” Id. at ___, 116 S.Ct. at 2147, 135 L.Ed.2d at 568.
{¶ 113} In discussing the differences between in rem civil forfeitures and in personam civil penalties, the Ursery court stated:
“[W]e have distinguished civil penalties such as fines from civil forfeiture proceedings that are in rem. While a ‘civil action to recover. . . penalties, is punitive in character,’ and much like a criminal prosecution in that ‘it is the wrongdoer in person who is proceeded against . . .and punished,’ in an in rem forfeiture proceeding, ‘it is the property which is proceeded against, and by resort to a legal fiction, held guilty and condemned.’
“* * * Civil penalties are designed as a rough form of ‘liquidated damages’ for the harms suffered by the Government as a result of a defendant‘s conduct. * * * Civil forfeitures, in contrast to civil penalties, are designed to do more than simply compensate the Government. Forfeitures serve a variety of purposes, but are designed primarily to confiscate property used in violation of the law, and to require disgorgement of the fruits of illegal conduct.” Id. at ___ - ___, 116 S.Ct. at 2144-2145, 135 L.Ed.2d at 565, 64 USLW at 4570.
{¶ 114} A driver‘s license is a property right, and not a liberty interest. See State v. Williams (1996), __ Ohio St.3d __, __ N.E.2d __; see, also, Doyle v. Ohio Bur. of Motor Vehicles (1990), 51 Ohio St.3d 46, 554 N.E.2d 97, paragraph two of the syllabus (“In Ohio, a license to operate a motor vehicle is a privilege, and not an absolute property right.“). The ALS also serves a variety of purposes, but is designed primarily to remove intoxicated drivers from the highways by temporarily confiscating the licenses of those drivers when they have been used to violate the law. See Dobbins v. Ohio Bur. of Motor Vehicles (1996), 75 Ohio St.3d 533, 539, 664 N.E.2d 908, 912. For these reasons, I conclude that the ALS is more in the
{¶ 115} Under the first prong of the 89 Firearms test, this court should ask whether the General Assembly intended the proceedings under
{¶ 116} Under the second part of the 89 Firearms test, a court considers whether the proceedings are so punitive in fact as to “persuade us that the forfeiture proceeding[s] may not legitimately be viewed as civil in nature,” despite the General Assembly‘s intent. 465 U.S. at 366, 104 S.Ct. at 1107, 79 L.Ed.2d at 371. “‘“Only the clearest proof”’ that the purpose and effect of [the ALS] are punitive will suffice to override [the General Assembly‘s] manifest preference for a civil sanction. * * * ” (Citations omitted.) Id. at 365, 104 S.Ct. at 1106, 79 L.Ed.2d at 370. In Kennedy v. Mendoza-Martinez (1963), 372 U.S. 144, 168-169, 83 S.Ct. 554, 567-568, 9 L.Ed.2d 644, 661, the court set forth a list of considerations that are helpful in making this determination, although this list is “neither exhaustive
{¶ 117} As was the case in Ursery, most significant among the considerations is that despite having certain punitive aspects, the ALS serves important nonpunitive goals. 518 U.S. at ___-___, 116 S.Ct. at 2148-2149, 135 L.Ed.2d at 570, 64 USLW at 4572. The goal and corresponding purpose of the ALS are to remove drunk drivers from our highways in order to protect the public. Although the terms of the suspension may extend beyond the time period necessary to achieve this immediate goal, the length of the suspension directly correlates to the number of OMVI convictions within the preceding five years and is not excessive. Scaling the terms of the suspension reflects the level of danger repeat offenders are presumed to present to the public and the overriding remedial nature of the suspension. The 1993 amendments to the ALS statute also support the conclusion that the suspension is remedial. Under the older provisions of the ALS statute, the suspension did not become effective until processed by the BMV. See State v. Sims (Aug. 21, 1995), Butler App. No. CA94-12-215, unreported. Under the current ALS statute, however, the suspension is immediately effective.
{¶ 119} Accordingly, I would hold that the ALS is not punishment for purposes of the Double Jeopardy Clause and therefore, does not preclude a later OMVI conviction.
PATTON, J., concurs in the foregoing opinion.
Notes
In Ursery, eight members of the court agreed that, prior to Halper, statutory civil in rem forfeitures had not been deemed to implicate Double Jeopardy Clause protection, such forfeitures having historically been characterized as “remedial civil sanction[s], distinct from potentially punitive in personam civil penalties such as fines.” Id. at ____, 116 S.Ct. at 2142, 135 L.Ed.2d at 562. The Ursery court rejected the contention that forfeiture to the government of property used in connection with criminal activities necessarily constitutes a punishment of the former owner for Double Jeopardy Clause purposes. Although the court recognized that civil forfeitures are not per se exempt from the scope of the Double Jeopardy Clause, id., at 116 S.Ct. at 2148, 135 L.Ed.2d at 569, fn. 3, it nevertheless held that the civil forfeitures in the cases before it did not constitute punishments for double jeopardy purposes. Id.
Ursery does not control disposition of the causes before us, which do not involve in rem civil forfeitures, but rather administrative suspensions of drivers’ licenses. It remains to be seen whether the United States Supreme Court will, in future cases, confine application of Ursery solely to civil in rem forfeiture proceedings, or may, conversely, apply it more broadly, thereby minimizing the importance of Halper and its progeny as precedent. In either event, we deem our resolution of the causes before us to be independently supported by the Double Jeopardy Clause of the Ohio Constitution.