State v. Hansen

action, order and the cause is retained for further the order is not final for Rohde v. Farmers Alliance appeal. Co., Mut. Ins. Because the motion to did not disqualify supra. affect a “substantial Schlund under this court’s right” definitions, previous the order defender disqualifying public is not a final order.

An appellate jurisdiction court without to entertain appeals Dietz, from nonfinal orders. Village Orleans 248 Neb. 539 N.W.2d 440 the Court was Appeals correct Schlund’s for lack dismissing appeal jurisdiction.

Affirmed. J. Nebraska, appellee, Hansen, State v. Russell appellant. 542 N.W.2d 424 January Filed 1996. No. S-95-312. Line, Line,

William G. & Kerrigan appellant. General, Don Attorney A. Klein for Stenberg, Kimberly appellee.

White, C.J., Caporale, Fahrnbruch, Lanphier, Wright, JJ. Connolly, Gerrard, J.

Connolly, In this we are asked to determine whether the appeal, criminal of a motorist for prosecution under the influence (DUI) intoxicating after motorist’s liquor driver’s license has been revoked administratively violates constitutional double prohibition against jeopardy.

Russell J. Hansen from an order of the district court appeals County court’s Dodge affirming county overruling Hansen’s in bar plea to criminal DUI The court charges. found that the Double Clauses of the Jeopardy U.S. Nebraska Constitutions are not because the applicable administrative revocation of Hansen’s driver’s license was remedial in nature and not We affirm the punitive. district court’s that the finding Double Clauses do not bar the criminal Jeopardy prosecution Hansen for DUI because the administrative revocation of his that, driver’s license for 90 was remedial in nature and days thus, he is not subject the same multiple punishment offense.

I. ASSIGNMENTS OF ERROR Hansen erred in district court not his alleges finding criminal DUI was barred the Double prosecution Jeopardy Clauses of the U.S. and Nebraska Constitutions because the DUI in addition to administrative revocation of prosecution, license, his driver’s him to for the subjects multiple punishment same offense.

n. SCOPE OF REVIEW law, an court is Regarding questions appellate obligated reach a conclusion of determinations reached independent trial court. State v. 248 Neb. Lynch, N.W.2d 905

m. BACKGROUND 12, 1994, On November Hansen was stopped by deputy Scribner, Nebraska, County Sheriffs in Dodge Department at with a burned out night taillight. Upon vehicle, Hansen’s the officer detected the odor of approaching alcohol, flushed, observed that Hansen’s face was and noted that Hansen’s was speech dry mouthed and Hansen chalky. test, to take a breath agreed preliminary the results of which were over the limit of .10 of alcohol 210 liters legal grams per of breath. Hansen was then under arrest and placed transported Fremont, to the County Judicial Center in Dodge Nebraska. At center, an official breath test was administered with a resultant of .143 of alcohol 210 liters reading grams per result, breath. As a Hansen was notice of given revocation of license, license, his driver’s a temporary driver’s and a form to for an petition administrative with an addressed hearing along envelope. 13, 1994,

On December Hansen’s driver’s license was ordered revoked by the Department Motor Vehicles for 90 time, days. At the same Hansen was also criminal facing DUI, prosecution court county for Dodge County for third offense. Hansen filed a plea bar that the alleging criminal DUI prosecution was barred by the Double Jeopardy Constitutions, Clauses of the U.S. and Nebraska he because had been already for the punished same offense by his having driver’s license administratively revoked. The county court bar, overruled Hansen’s and the plea district court affirmed. IV. OVERVIEW OF ADMINISTRATIVE LICENSE

REVOCATION PROCEDURE we Preliminarily, believe it helpful give description statutes, Nebraska’s administrative license revocation Neb. Rev. 60-6,205 60-6,208 Stat. (Reissue to 1993). §§ Under the statutes, a who person is arrested for under the influence of alcohol and who submits to a chemical test which discloses the presence of alcohol in of the. any concentrations

[181] 60-6,196 (Reissue 1993), in Neb. Rev. specified Stat. .10 of § a or more of alcohol 100 gram per milliliters of blood or .10 of breath, a or more of gram per alcohol 210 liters of shall be officer, served notice verbal the as an by of the arresting agent Vehicles, of director of the Motor of the intention Department to immediately and revoke driver’s license of impound the such person and that revocation will automatic days after 60-6,205(3). date of the arrest. § The officer to arresting is then take of the required possession license, driver’s license and to issue a which is valid temporary for 60-6,205(4). 30 days. is arresting officer also § required explain to the administrative license revocation procedure and arrested to rights person, and provide an addressed and a envelope petition may form which be used before the director of the request hearing Department Motor Vehicles contest revocation. Id.

The burden of on the proof is State make a facie prima Conrad, case for revocation before director. McPherrin v. (1995); Neb. N.W.2d 498 v. Director Mackey Vehicles, Motor Department Neb. 235 N.W.2d 394 However, once the officer’s sworn report provided, order director’s of revocation has facie validity. Id. It prima is then that the revocation will occur presumed unless the offender establishes for grounds reversal preponderance the evidence. Id.

If the offender is unable to show cause his why driver’s revoked, license not be should then the director shall revoke his license for a of 90 for a offense period days year first any second and offense within an subsequent 8-year period. 60-6,206(1). who or Any feels himself herself person § may because of such revocation aggrieved petition judicial review therefrom to the district court of the where the county 60-6,208. occurred. alleged events

V. ANALYSIS 1. Plea in Bar Before the double issue raised addressing jeopardy Hansen, we must first address the threshold issue whether this to hear jurisdiction court has an from an order appeal driver’s license in bar after Hansen’s arising a

overruling plea revoked, of his but before the merits administratively was have been litigated. criminal DUI prosecution rule, from final only be taken may a appeals As general 1994). (Cum. Stat. 25-1901 Supp. Neb. Rev. judgments. § his district court’s denial of plea that the Hansen contends entered. The State order when appealable bar was a final final, not a order that the denial was appealable contends merits of his could on the ultimately prevail because Hansen DUI prosecution. reviewed may three of final orders which

There are types (1) order which affects a substantial right on an appeal: (2) an a prevents judgment,. which determines action made a during special order a substantial affecting right (3) an order a substantial made right affecting proceeding, in an action after is rendered. summary judgment on application (Cum. (Reissue 1989) 25-1902 and 25-1911 Neb. Rev. Stat. §§ Eichler, 244 1994); Jarrett v. Neb. 506 N.W.2d 682 Supp. (1993); 238 Neb. 470 N.W.2d 780 of R.G., In re Interest Thus, final and whether an order is does not appealable , whether that order always depend upon completely disposes Eichler, the action. Jarrett v. For an order supra. example, a substantial made a right during special proceeding affecting a final and order. Id. This court has construed the appealable to mean civil every statutory phrase “special proceeding” which is not 25 of the Nebraska remedy encompassed chapter Eichler, Jarrett v. In re Revised Statutes. Interest supra; R.G., authority director’s to revoke Hansen’s license supra. Rather, derive from 25. the authority does not is derived chapter from 60. we are a with chapter dealing special proceeding.

However, the fact that the order a special arose during does not end our To be final and proceeding inquiry. appealable, the order made in such must also affect a proceeding Milenkovich, substantial State 236 Neb. right. (1990), N.W.2d this court said there is no that question that , determination of a nonfrivolous double claim affects jeopardy the substantial not to be tried twice for the same offense right bar, and concluded that a denial of a plea filed pursuant (Reissue Neb. Rev. Stat. 1989), 29-1817 is a final order § defined in 25-1902.

However, the State argues Milenkovich dealt with a plea in bar filed after one criminal criminal while another charge, case, was whereas in charge pending, the instant Hansen is to invoke double attempting jeopardy protections from a clearly civil-administrative to a criminal procedure DUI prosecution. such, As the State argues Hansen’s situation is more Waara, analogous Gruenewald v. 229 Neb. 428 N.W.2d case, (1988). 210 In that the defendants filed a in bar plea that a default alleging in one judgment civil case precluded maintenance of another civil suit them against out of the arising same fact pattern. This court found that while the of a granting in plea bar is final and the appealable, trial court’s order overruling final, defendants’ in plea bar was not a order appealable because the “presently unsuccessful parties may ultimately prevail a trial on following the merits.” Id. at 621, 428 N.W.2d at 213.

It is true that the merits of Hansen’s DUI prosecution have not been litigated that the revocation of his license was accomplished civil-administrative, through criminal, not a However, proceeding. 435, United States v. Halper, U.S. 447-48, 1892, 109 S. Ct. 104 L. Ed. 2d (1989), Court Supreme held: this making assessment whether a sanction [of

constitutes punishment for double jeopardy purposes], labels “criminal” and “civil” are not of paramount . . importance. . The notion of punishment, as we it, commonly understand cuts across the division between law, the civil and the criminal and for the purposes of whether assessing a given sanction constitutes multiple Clause, barred Double Jeopardy we must follow the notion where it leads.

If Hansen were not permitted to appeal denial of his plea in bar until after the merits of his DUI prosecution were he litigated, potentially could be forced to “run the gauntlet” twice—a harm that the constitutional prohibition double against was. jeopardy designed prevent. we conclude in this aon in bar based denying plea order that a pretrial case because is appealable claim double jeopardy nonfrivolous if review lost bemay irreparably rights substantial Hansen’s until final delayed judgment. Jeopardy Double 2. Constitution, made which is Amendment to the U.S.

The 5th Amendment, provides 14th through to the states applicable offense for the same any subject shall person in part: “[N]or Const, I, art. Neb. life or limb.” jeopardy be twice put 12, jeopardy twice put shall ... be person “No provides: same offense.” for the Fifth Court has interpreted U.S. Supreme three to protect against Clause Jeopardy

Amendment’s Double the same offense (1) a second for prosecution abuses: distinct the same offense (2) a second prosecution after acquittal, conviction, the same (3) multiple punishments after North Carolina United States v. Halper, supra; offense. (1969), Pearce, 23 L. Ed. 2d 656 89 S. Ct. 395 U.S. Smith, U.S. Alabama v. on other grounds, overruled has not L. 2d This court Ct. 104 Ed. 109 S. any Clause to provide Nebraska’s Double Jeopardy construed federal than those guaranteed greater protections had already that because he has Hansen contends Constitution. revoked, him administratively prosecute license his driver’s for the same him to subject multiple punishment for DUI would result, whether the a we must determine offense. As days for 90 of his driver’s license administrative revocation 60-6,206 constitutes “punishment” to pursuant of double jeopardy. Halper v. 3. United States a of cases rests on trio argument

Hansen’s double jeopardy United States v. Halper, decided the U.S. Court: Supreme 1892, (1989); 2d S. Ct. 104 L. Ed. 487 490 U.S. 109 States, 125 L. U.S. 113S. Ct. Austin v. United Montana v. (1993); Revenue Department Ed. 2d Ranch, _U.S._, 128 L. Ed. 2d S. Ct. Kurth cases, (1994). In Court Supreme expanded these Clause it to by construing protect the Double Jeopardy scope

185. forfeitures, from individuals of certain imposition penalties, monetary had been impositions traditionally not taxes— Austin, We considered criminal find which was a punishments. case, forfeiture was decided the Eighth Amendment’s upon Clause, Ranch, “Excessive Fines” and Kurth which is fact context, to tax are specific to instant drug inapplicable case. we purposes of Hansen’s analyzing argument, United States begin discussing Halper, supra. the Court held that “under the Halper, Double Jeopardy

Clause a already defendant who has been a punished criminal be an prosecution may subjected not additional civil sanction to the extent that the second sanction not may remedial, characterized as but as a only deterrent or retribution.” at (Emphasis U.S. 448-49. supplied.) case,

In that was Halper convicted of 65 false submitting claims for reimbursement under He medicare. was sentenced to $5,000. 2 years in and fined prison Subsequently, an action government brought for civil against Halper violation Act, of the False Claims and the court granted summary time, for the judgment At that government. False Claims Act $2,000 violation, provided for a penalty per which resulted $130,000 civil Halper’s penalties amounting to for the 65 However, violations for he which had been convicted. the total amount of money Halper actually defrauded was government $600. less than

The Court reasoned:

Where a defendant has sustained a criminal previously penalty and the civil penalty in the sought subsequent bears proceeding no rational relation to the goal loss, the Government for its compensating but rather appears qualify “punishment” in the plain meaning word, of the then the defendant is entitled to an accounting of the Government’s damages costs determine if the penalty fact constitutes second sought punishment. 490 U.S. at 449-50. Halper Applicability 4. involved where

Although Halper setting the criminal case followed, came first and the civil case from the of the totality 186 issue, the order not it is evident that the

cases discussing Montana v. See, Revenue Department e.g., significant. of of Ranch, J., (“if (Scalia, dissenting) at S. Ct. Kurth punishments, on prohibition multiple is a constitutional there difference”). make any of cannot possibly the order Sanchez-Escareno, also, (5th See, Cir. 950 F.2d 193 U.S. v. Hanson, (Minn. 1995). 1991); App. State N.W.2d “[wjhat was careful to note that we The Court Halper case, rule for rare the case such the now is a the announce us, a provision subjects where a fixed-penalty one before a but offender to sanction overwhelmingly prolific small-gauge he has 490 U.S. at to the caused.” damages disproportionate face, may to instances apply only on its Halper 449. a the to extract from who government person where attempts act, a or followed a preceded has committed punishable a related to the of monetary goal criminal prosecution, penalty whole. government making case, in the we are not present analyzing

Unlike Halper, any monetary designed sanctions constitutionality a result State for losses it sustained as compensate Instead, we look at Hansen’s criminal actions. must whether enunciated in to determine principles Halper driver’s a 90-day revocation Hansen’s license constitutes of double jeopardy. second punishment Legislative History Meaning Plain 5. The license revocation is codified at procedure administrative 60-6,205 60-6,208. 60-6,205(1) Section states: §§ influence

Because who drive while under the persons safety alcohol a hazard to the health and all present is needed for the highways, procedure persons using certain revocation of the license of operator’s any swift and has shown himself or herself to be health who person hazard with an excessive safety by driving alcohol in his or her and to deter body concentration of others while under the influence of alcohol. driving from (Emphasis supplied.) statute indicates that the plain language legislative from the public is to health protect safety

hazards associated with drunk those quickly getting who drive under the of while influence alcohol off the people It road. is also clear another the statute is intended purpose is to serve deter others from while under the driving influence of alcohol.

Hansen the that since of the statute argues plain meaning indicates one of its is to deter others from purposes alcohol, under while the influence of its constitutes application for the of double Hansen punishment purposes further jeopardy. 60-6,205 that the history this argues legislative supports claim because some when the debating of the legislators passage statute used the term “deterrent” floor their during speeches.

However, the used by the on the floor language legislators, statute, and in the is not In United States v. controlling. Halper, 435, 447, 490 U.S. Ct. Ed. (1989), 109 S. 104 L. 2d 487 the Court elaborated: structure, recourse to statutory language,

[W]hile intent is the inherent nature appropriate of a identifying or in proceeding, constitutional determining safeguards that must those as a accompany proceedings general matter, the is not to the well suited context approach of the “humane interests” safeguarded the Double Jeopardy Clause’s proscription multiple punishments. [Citation This constitutional is protection intrinsically omitted.] can personal. Its violation be identified only by assessing the character of the actual sanctions imposed on the individual machinery the state. state,

The Court was careful to is “This not to say that a whether sanction punishment constitutes must be determined from defendant’s . . . perspective. defendant even [F]or remedial sanctions carry sting 490 U.S. at punishment.” 447 n.7. The Court reiterated that “the determination whether civil sanction given constitutes punishment relevant sense requires particularized assessment the penalty and the that the imposed purposes penalty may fairly be said to serve.” 490 U.S. at 448. plain language is not legislative history dispositive of our inquiry whether administrative license revocations are remedial or constitute Instead, double jeopardy. make a

directed we must assessment by Halper, particularized of the or sanction and the actually penalty imposed be said to serve. may fairly statute Purpose May Fairly 6. Statute Be Said to Serve 60-6,205 Hansen next that the may fairly contends purpose § be said to serve is that of To his punishment. support argument, Hansen cites the from following language Halper:

“Retribution and deterrence are not legitimate nonpunitive Bell 441 U. objectives.” Wolfish, S. governmental n. 20 From these it follows that a premises, civil sanction that cannot fairly solely be said to serve a remedial rather but can as also purpose, only explained either retributive serving or deterrent purposes, as we have punishment, come to understand the term. 490 U.S. at 448. (Emphasis supplied.) Thus, Hansen that the administrative argues revocation of his which, driver’s license served a deterrent based on the purpose aforementioned is one of the of language, goals therefore must be deemed “punishment” of double purposes jeopardy.

While it is correct that some courts have appellate that the revocation of a acknowledged driver’s license based on the driver’s misconduct has a deterrent none have found aspect, that administrative license revocations constitute punishment Zerkel, under the Double Clause. State v. Jeopardy 900 P.2d Savard, (Alaska 1995); 744 State v. App. (Me. 659 A.2d 1265 1995); State v. (1995); 79 Haw. 897 P.2d Higa, Baldwin Vehicles, Motor 35 Cal. Department 4th 1630 and 36 App. 454N, Cal. 4th (1995); Cal. 2d 422 App. State v. Rptr. (Vt. 1992); 605 A.2d 510 Strong, Butler v. Public Dept. of Corr., Nichols, (La. & 2d Safety 1992); 609 So. State v. (Ariz. 1991). 169 Ariz. 819 P.2d 995 App. vast majority of other that jurisdictions have have interpreted Halper found the following not the cited language, language by Hansen, to be controlling:

We therefore hold that under the Double Clause Jeopardy a defendant who already has been in a criminal punished not be prosection may subjected to an additional civil the extent that the sanction not may sanction to second remedial, characterized as but as a deterrent only or retribution. 490 U.S. at 448-49.

(Emphasis supplied.) that in stated that It is to note Court important Halper, sanction, in “the we face whether a civil question today [is]: be so divorced from remedial that it may any goal application, constitutes for the of double ‘punishment’ purpose jeopardy U.S. at 443. The the Court framed the issue analysis.” way indicative the view that a statute certain may contain remain remedial for qualities yet punitive purposes double jeopardy. noteworthy It is also that Revenue Department of Ranch, __ _,

Montana v. Kurth U.S. 114 S. Ct. (1994), 128 L. Ed. 2d 767 Court found although tax to be excessive and thus it imposed punishment, that other sanctions could acknowledged types nonpunitive include deterrent “We legitimately aspects: begin noting neither a rate of taxation nor an obvious deterrent high purpose tax automatically marks this a form of punishment.” Thus, we find that Hansen has read incorrectly. Halper 60-6,205(1) Section makes it clear that the revocation of motorist’s the remedial driving privileges primarily serves health and purpose protecting public safety by quickly drunk drivers from the roads. removing dangerous Certainly, this is a rational alternative statute’s secondary deterrent we have no objective. difficulty finding substantial remedial underlie the administrative license revocation statutes and conclude that their remedial character is not defeated the fact- that the statutes also a role play However, others from drunk. analysis our does deterring not end here. We must still make a assessment of particularized the revocation 90-day period actually imposed pursuant 60-6,206(1) in order to determine whether it is remedial or constitutes for of double jeopardy. Penalty Actually Imposed

7. Assessment (a) Not a Privilege, Right held that We have a motor vehicle is not a repeatedly driving ^[190]

fundamental but is a the state. State right, privilege granted Green, 493, (1988); 427 304 v. v. 229 Neb. N.W.2d Porter 438, Jensen, (1986); 223 Neb. 390 N.W.2d 511 State v. Michalski, 380, (1985); 221 Neb. 377 N.W.2d 510 Prucha v. Vehicles, 415, 172 Motor Neb. 110N.W.2d 75 Department of (1961). “A license to a motor vehicle in this state is operate contract, issued, not as a but as with the privilege, that such license be revoked for understanding may cause Ress, 768, 772, 148, state.” v. 163 Neb. 81 N.W.2d 150 Durfee (1957). Likewise, the case law of other jurisdictions demonstrates that the revocation of a driver’s license is actually revocation of a voluntarily a traditional attribute of a privilege granted, See, Zerkel, (Alaska remedial action. State v. P.2d 744 900 Commrs., 1995); Moser v. Richmond App. County Bd. (1993); Ga. 428 S.E.2d 71 State v. 605 A.2d 510 Strong, Corr., (Vt. 1992); Butler v. Public & Dept. Safety 609 So. State, (La. 1992); 2d 790 (Fla. Freeman v. 611 So. 2d 1260 “ 1992). of a App. voluntary privilege ‘[R]evocation ’ ” free of the “characteristically criminal element.” punitive Savard, (Me. State v. A.2d 1995).

(b) Remedial Historically this court held that the of the revocation “purpose is to and not protect public, punish [of license] Ress, , licensee.” 163 Neb. at 773 81 N.W.2d at 151 Durfee (a case revocation of a driver’s license involving point under system). More recently, this court determined that revocation of a motorist’s license under the consent implied laws, test, to submit to a refusing breath or chemical awas Peterson, civil action remedial in nature. Neil v. 210 Neb. N.W.2d 275 it is evident administrative revocation of driving privileges offenses has historically served a regulatory and has See, also, Hanson, not been regarded punishment. State v. (Minn. 1995); N.W.2d 598 App. State v. Strong, supra. (c) Analogy Professional License Revocations principles administrative underlying revocation of a take, of, driver’s license after refiisal to or failure a chemical

[191] test are the closely to the analogous principles underlying disbarment or of an or doctor after suspension attorney crime conviction of a moral It has been involving turpitude. held that the repeatedly Jeopardy Double Clause does not prevent the revocation of a license for conduct professional See, which rise also to criminal conviction. Loui v. gives Board Examiners, (1995); Medical 78 705 Haw. 889 P.2d State, (Ariz. Schillerstrom v. 180 Ariz. 885 P.2d 156 App. Examiners, 1994); v. State Alexander Bd. Med. 644 So. 2d (La. 1994). These reasoned the App. courts or a license is not revoking suspending professional to but maintain punish, to sound standards of conduct professional and to from unfit protect public lawyers and doctors. Id. deterrence, there is an element of and

Although thus a into “sting” punishment, the administrative incorporated statutes, license revocation this element is loss of present any license or is not the privilege primary focus of statutes. A driver’s license is not to deter the offender or seek suspended retribution, but to protect drunk public against dangerous See, Savard, drivers. v. State State v. 79 Haw. supra; Higa, Zerkel, Nichols, (1995); 897 P.2d State State v. supra; (Ariz. 169 Ariz. 819 P.2d 1991). App. Simply put, fact that a statute to serve remedial designed primarily secondarily serves exemplary purpose deterrence general as well does not necessitate the conclusion that the statute results in for double jeopardy purposes.

(d) Not Excessive The has that a determined Legislature person operates who motor vehicle his when or her blood-alcohol level is .10 percent or to the health higher poses danger public’s A safety. in such person’s willingness conduct engage dangerous justifies the inference that his her or continued authorization to drive will pose likewise a continuous danger public. situation, to this response emergency Legislature requires the director to revoke an administratively offender’s driver’s license for a of 90 a first period days for year offense a second and any offense within an subsequent 8-year period. These swift revocations are the Legislature’s to abate attempt interim period drivers drunk

the dangers posed license 30-day temporary and prosecution. arrest between due process. right the offender’s to protect in order is issued to ensure enacted various guidelines has The Legislature to the in relation not excessive revocation is the period instance, 60-6,196(5) states For objectives. remedial statutes’ not to or order of revocation “[a]ny period in part pertinent any reduced by period shall be under this section drive imposed 60-6,206.” section under imposed 60-6,206 for DUI a conviction states that after Section revoked for driver’s license the offender’s shall order court However, on probation, the offender if the court places months. A days. of 60 license for a period the offender’s it shall revoke or shall have his an 8-year period offender within second-time is unless year probation for 1 license revoked her driver’s ordered; case, revoked license shall be the offender’s in which three or more 60-6,196(2)(b). An offender of for 6 months. § or her driver’s shall have his 8-year within an period times ordered; in is for 15 unless years probation license revoked case, year. revoked for 1 the license shall be which 60-6,196(2)(c). § be may privileges true that an offender’s driving

It is 60-6,206 a of time under for period revoked administratively § if chooses to revoked the trial period judge than greater 60-6,196(2)(a). to For example, probation pursuant impose § her driver’s license offender shall have his or first-time if the for 90 whereas trial administratively days, judge revoked conviction, license after a DUI the offender’s chooses probation circumstances, Under these only days. revoked for shall be cannot be offset 30-day disparity required However, receives 60-6,196(5). or not an offender whether § on the discretionary part revocation is 60-day probationary or If the chooses not to judge give probation, of the trial judge. then reason or another refuses probation, if the offender for one 60-6,196(2)(a) to revoke is judge required § Furthermore, the is to license for 6 months. judge offender’s minimum 7of days’ imprisonment a mandatory penalty impose fine, $200 to a maximum of 60 days’ imprisonment and a up fine, (Cum. 28-106(1) $500 to Neb. Rev. Stat. pursuant and a such, As it 1994). cannot said Supp. 90-day administrative revocation is excessive in to the comparison a DUI period penalty permitted upon revocation conviction.

Furthermore, an administrative license revocation is a in measure that can be administered various temporary degrees. 60-6,206(2) Section states part:

At the after an order thirty days of revocation expiration section, (1) is entered under any subsection this person whose license operator’s has been revoked administratively for a period ninety days for a chemical test submitting 60-6,197 which pursuant to section disclosed the presence of a concentration alcohol violation section 60-6,196(a) make to the director may application issuance of an employment driving permit pursuant 60-4,130 (b) section an eligible pursuant order 60-6,211.05 to section vehicle operate motor equipped with an interlock device. ignition stated, Simply a motorist who temporarily removing fails a breath test from the days road for 90 is not excessive as were the civil assessed United States damages 490 U.S. Halper, 1892, 109 S. (1989). Ct. L. 2d Ed. Importantly, the Supreme Court deemed “the rare case” and Halper was $130,000 of the simply that the opinion civil penalty sought was $600 “overwhelmingly disproportionate” to the that case, was government actually defrauded. the instant we do not find this minimal period revocation to be excessive in relation to the remedial of the public health and goal protecting safety. Because our analysis under Halper overwhelmingly to the points nature nonpunitive administrative license statutes, revocation we must defer to the Legislature’s determination of what remedial action is necessary to achieve Ward, the Legislature’s goals. See United States v. 448 U.S. 100 S. (1980). Ct. 65 L. Ed. 2d 742

VI. CONCLUSION We find when that the State employs system to licensing an regulate activity public that affects the health and safety, the administrative of that license revocation can legitimately -. serve for jeopardy remedial double and still remain

to deter conduct However, must be true the revocation for this to be purposes. to the direct relation government’s on that bears a based conduct enforcement administration and or to the proper remedial goals scheme. regulatory statutes, the revocation license Under our administrative to a for subsequent prosecution a driver’s license revocation of for by our plan developed Legislature an overall part DUI very problem with the serious swiftly surely dealing served Any purpose deterrent drinking driving. an DUI is arrest for following revocation of a driver’s license to the merely secondary overriding purpose providing roadways. with safe public of the Double Clauses Jeopardy we conclude do not bar

U.S. Nebraska Constitutions prosecuting driver’s has been motorist DUI after the motorist’s license revoked, does not because such revocation administratively for the same the offender subject multiple punishment offense.

Affirmed. J., dissenting. Gerrard,

There has an in removing is no doubt the state interest safety. drunk from the road to promote highway drivers However, this interest must be advanced within the framework because, I U.S. and Nebraska Constitutions. dissent in the the driver’s license my opinion, suspension provisions statutes, (ALR) administrative license revocation Rev. Stat. Neb. 60-6,205 60-6,208 (Reissue 1993), constitute a through §§ civil sanction which cannot be characterized as solely a remedial and therefore “is as we serving punishment, have come to understand the term.” United States v. Halper, 435, 448, U.S. S. L. 109 Ct. 104 Ed. 2d 487 since Hansen has been Accordingly, punished by administrative revocation of his driver’s license for driving (DUI), while under the influence he cannot constitutionally subjected to criminal multiple punishment by prosecution the same offense of DUI.

HALPER AND AUSTINANALYSIS I that Hansen’s agree majority with double jeopardy must be in argument analyzed of a trio of light U.S. Supreme Court cases: United States v. Halper, supra; Austin v. United States, 509 U.S. 113 S. Ct. 125 L. Ed. 2d 488 (1993); Ranch, and Department Revenue Montana v. Kurth _U.S. _, 114 S. Ct. 128 L. Ed. 2d However, I with the view disagree majority’s that Austin is inapplicable to the resolution of the issues before us in the Instead, instant case. view is that it my is absolutely necessary analyze apply holding Halper of the light Austin, Supreme analysis Court’s as Austin is the only Court Supreme case which employs Halper analysis to resolve issue, i.e., this double specific jeopardy whether a particular civil sanction can be fairly characterized as solely remedial. Moreover, Austin resolves any ambiguities that existed in Halper when a civil concerning sanction’s “sting punishment” can no be longer and, characterized as remedial solely instead, can only considered punishment as defined Court. Supreme 490 U.S. at 447 n.7. Halper, defendant was convicted of 65 separate

violations statute, of the criminal false-claims sentenced to prison, fined. to his Subsequent criminal conviction and concerning same conduct which constituted the criminal convictions, the filed government 65 separate violations of the civil False Claims Act against Halper and recovered the $2,000 authorized statutorily civil penalty of for each violation. $130,000 Halper complained that this penalty bore no rational to the relationship government’s costs of investigation sanction, prosecution and was thus not a civil but a second the same conduct.. The Court identified that the sole question before it was whether the statutory penalty authorized False Claims Act constituted a second punishment for the of a i.e., double jeopardy sanction, analysis, “whether a civil application, may be so divorced from any remedial goal it constitutes ‘punishment’ for the double jeopardy context, analysis.” 490 U.S. at 443. In this the Court concluded government entitled to remedial rough justice; however, when justice “authorizes a rough supposedly remedial sanction that does not remotely approximate Government’s costs, clear becomes justice rough and actual [then]

damages resolution of the Accordingly, at 446. U.S. injustice.” a civil sanction what circumstances and under whether question, of double jeopardy, the purposes be may punishment the actual sanctions “the character of of an assessment requires ” of state. 490 by machinery on the individual imposed Furthermore, the U.S. Court stated: Supreme at 447. U.S. assessment, “criminal” and the labels this making It commonly is importance. are not of paramount “civil” advance may punitive that civil proceedings understood and, that both conversely, punitive well as remedial goals, criminal may penalties. be served and remedial goals The notion of as we punishment, omitted.] [Citation it, across the division between understand cuts commonly law, and for the purposes the civil and the criminal a sanction constitutes multiple whether assessing given Clause, the Double we Jeopardy barred punishment where it leads. must follow the notion [Citation omitted.] end, the determination whether civil given To that constitutes the relevant sense punishment sanction assessment the penalty requires particularized that the be may fairly and the imposed penalty a civil as well as a criminal Simply put, said to serve. when the sanction as punishment sanction constitutes in the individual case serves the applied goals punishment. United States v. 490 U.S. Halper,

(Emphasis supplied.) 447-48, 104 L. Ed. 2d 487 109 S. Ct. hand, these to the case at the Court in principles

Applying held as follows: Halper it that a civil

From these follows sanction that premises, cannot be said to serve a remedial fairly solely purpose, but rather can as also either only explained serving retributive or deterrent as we purposes, punishment, come to understand the term. have We [Citation omitted.] therefore hold that under the Double Clause a Jeopardy already defendant who has been in a criminal punished not be to an additional may subjected civil prosecution sanction to the extent that the second sanction not may remedial, be characterized as but as a deterrent only or retribution.

490 U.S. at 448-49. States,

In Austin v. United U.S. 113 S. Ct. (1993), 125 L. Ed. 2d Court revisited the issue of whether a civil sanction constituted when it examined the issue of specific whether Excessive Fines Clause Amendment to civil forfeitures of Eighth applied case, In this Austin was indicted on four property. counts state He ultimately laws. to one count violating drug pled guilty cocaine with intent possessing distribute and was to 7 sentenced years’ imprisonment. to Austin’s Subsequent indictment, the an United States filed in rem action seeking forfeiture of Austin’s mobile home and The body auto shop. States, district court entered summary for the United judgment and this order was the U.S. Court of the upheld Appeals for Circuit. Eighth Court stated: “The Supreme of the Eighth

Amendment, side, the Bail Clause to one putting was to limit . . . government’s power punish. The Excessive Fines Clause limits the Government’s to extract power payments, ” kind, whether cash in or in ‘as for some punishment offense.’ in (Emphasis 509 U.S. at original.) 609-10. The Court that concluded is question not whether forfeiture is a civil sanction, or criminal but whether forfeiture is in “punishment” the constitutional sense. in Court Austin stated: Continuing,

In this we question, are mindful considering of the fact that sanctions more serve than one frequently We purpose. need not exclude that possibility a forfeiture serves remedial to conclude that purposes it is subject to We, however, limitations of the Excessive Fines Clause. must it only determine that can be as in explained serving said part punish. We “a Halper that civil sanction that cannot be said to serve a solely remedial but rather can purpose, as only explained also serving or either retributive deterrent is purposes, punishment, we have come to understand the term.” (Emphasis supplied.) 509 U.S. at 610. four

Similarly, recent federal court of cases have appeals above-stated applying of Austin followed guidance the Double context of in the of “punishment” definition court is Clause, each circuit reasoning and the Jeopardy 1995); Perez, (5th Cir. See, F.3d 345 U.S. v. persuasive. 1995) (6th (holding Cir. 59 F.3d Ursery, U.S. 881(a)(6) constitutes 21 U.S.C. under forfeiture civil Austin because double jeopardy punishment “ to forfeiture with respect issue the “punishment” ‘resolves as the Clause as well Jeopardy of the Double cases for purposes $405,089.23 U.S. ”); U.S. v. Clause’ Fines Excessive 1994) that Austin (9th Cir. (stating F.3d 1210 Currency, deter even in part which is designed that sanction emphasized it of whether regardless constitute punishment, will or punish Amendment under both Eighth purpose, also has remedial Clause in context and Double Jeopardy Fines Clause Excessive Hudson, (10th 14 F.3d forfeitures); U.S. v. of civil sanctions 1994) (in nonparticipation whether analyzing Cir. bank officials constituted imposed against sanctions monetary were also prosecuted when defendants double contend that the above Court stated: “Appellants criminally, ‘solely’ unless a sanction is means that quoted language ends, i.e., remedial, it is deterrent or retributive not serving confirmed the recent Supreme This position punishment. U.S.”). decision in Austin v. Court is, analysis, making conducting Halper forfeiture imposed by assessment of the penalty particularized be said to may fairly that a civil forfeiture and the purposes serve, (1) examined three factors: the Court in Austin forfeitures, (2) of the focus of historical understanding statute, (3) and if forfeiture is in part federal forfeiture forfeiture, nonetheless, can the punishment, remedial. The Court solely eventually characterized as that forfeiture to the federal statute at issue pursuant concluded that, thus, a remedial and it was solely purpose did not serve to the Excessive Fines Clause. subject punishment APPLICATION OF HALPER ANALYSIS Hansen, Thus, make a for Austin us to Halper require aby assessment of driver’s penalty imposed particularized

[199] license and of the suspension such a suspension be said may fairly to serve. a resolution of the Accordingly, present (1) issue requires: an examination of the historical driver’s license in the context of drunk suspensions (2) statutes, an driving, examination of the focus of our ALR (3) if of a driver’s suspension license within the statutes is statutes, nonetheless, in part punishment, may be fairly characterized as remedial. solely

History Driver’s License in Context Suspension Drunk Driving.

An that, examination of our statutes reveals even before the enactment of statute, Nebraska’s first motor vehicle licensing of the suspension to drive had been privilege utilized as a form of for drunk in this state. driving The first laws use of motor governing vehicles our upon highways appeared in In 1919. that year, made it Legislature “unlawful for under any person sixteen years of or age, for any intoxicated person Laws, a motor operate vehicle.” 1919 Neb. 190, 27, ch. (codified p. at (1922)). § Stat. Comp. § The for penalty violation of 27 was a fine $50 not § exceeding offense, for the first $100, $50 not less than nor more than or imprisonment not days exceeding county jail Laws, each 190, subsequent offense. 1919 Neb. ch. p. § (codified at Stat. Comp. (1922)). § In penalty while intoxicated was amended to include of the suspension privilege driving. addition to a fine and possible imprisonment generally applicable violations, for other motor vehicle any person found guilty motor vehicle operating while intoxicated was to be ordered by the court not to drive a motor vehicle of any description within this state for a of 1 period from year the date Laws, judgment. 1927 Neb. ch. 411. These p. laws predate our first motor vehicle statute. licensing it is evident that even this state enacted its first motor vehicle before statute, an order licensing not to drive motor vehicle was considered to be an effective punishment for the crime of drank driving. enacted our Legislature first motor vehicle licensing Laws, 148, Section ch. 512-20. pp. 1929 Neb.

statute 1929. streets, alleys, a motor vehicle on the proscribed operation a license obtained from without or public highways (1929). If Stat. 60-401 Comp. of Public Works. Department § under the influence of convicted of driving a motorist was that a motorist’s 12 mandated alcohol or a narcotic drug, § date of of 1 from the year for a period license be suspended also the Legislature gave conviction. Importantly, § of Public Department director of an administrative agency, Works, a driver’s license discretionary suspend power a if the was convicted of year, operating a period person influence of alcohol or narcotic vehicle while under the motor discretionary This Stat. 60-413 Comp. drags. § director in 1937 vested in the was authority department repealed to revoke a mandatory with the responsibility replaced a record of the operator’s driver’s license upon receiving influence of criminal conviction of while under the driving Laws, alcohol. Neb. ch. 506-26. pp. scheme, course, had the under this courts statutory option

Of an individual on probation, a sentence suspend place and, therefore, the convicted drank driver did not facé always loss of In sanction of mandatory driving privileges. Laws, 1982 Neb. L.B. response, Legislature passed which mandated that courts impound driving privileges conviction, certain minimum time after a DUI whether periods or in a case. particular not probation granted drank driver’s license the context of historically, suspensions have been an DUI criminal predicated upon underlying conviction. our scheme license revocation statutory regarding with the enactment of the ALR statutes. dramatically

changed statutes, 60-6,205 60-6,208 Unlike our vest prior through §§ in the director of the of Motor Vehicles the Department to revoke a license to a motorist’s authority driver’s prior Moreover, criminal conviction for DUI. the statutes require director to a sanction of license revocation upon impose that is in excess of the sanction imposed upon motorist if he or she is convicted of a criminal subsequently motorist of DUI as a first- or second-time offender and charge sentenced probation. 60-6,206

For requires the director to revoke the example, driver’s license of a first-time offender for a 90 period days and to revoke the a license of second-time offender for a period contrast, of 1 criminal year. to a for subsequent conviction DUI, a first-time offender who is on with a placed probation minimum is subject sentence his or her license having impounded by the court a A period days. of 60 second-time offender who is a placed on with minimum sentence probation is her subject to his or license having impounded the court for a of 6 period months. “remedial” sanction under this scenario is 30 than days longer the “criminal” sanction for offender, 6 first-time months the second-time longer offender. Given this and the fact that the practical reality revocation arbitrarily increases from 90 to 1 period days year offender, between a first-time offender a second-time it is difficult to the “remedial” of the ALR glean portion sanction.

This of result is not when we type consider surprising legislative history behind federal that statute encouraged states to ALR 408(e)(1)(A) statutes. 23 U.S.C. adopt Chapter § (1994) to states for alcohol traffic provides grants safety if the state programs for the . provides . . “prompt suspension of the driver’s license minimum of 90 days for first [for offender 1 year for a repeat individual who any offender] a law enforcement officer has ... probable cause to believe has committed an alcohol-related traffic offense.” intent of is this statute illustrated Congressional clearly throughout legislative history statements such as: license revocation been “Historically, has treated as a bill, however, criminal sanction. This discretionary recognizes that license revocation ais effective highly deterrent against drunk that should not be used as a criminal exclusively penalty after imposed only court lengthy proceedings.” (1982) (statement Danforth). Rec. of Sen. Cong. Further illustration comes from the statement “the main aim of the bill is deterrence is after fact.” [p]unishment justified [and] (1982) (statement Rec. Howard). Cong. Rep. when the debated Finally, Senate amendments to 23 U.S.C. 408, it noted “in was 1982 we enacted Public § Law detect and punish ... prevent, U.S.C.

97-364 § 408] [23 (statement of (1984) Rec. 18657 130 Cong. drunk driving.” Mathias). Sen. in mind when it had what Congress

There little question ALR statutes to the states pass inducements handed out and astute Seasoned prosecutors drunk driving. to combat order are among, license revocations know that driver’s legislators from and deter drivers offenders tools to punish most effective will context that we It is this when drunk. vehicles operating ALR statutes. the focus of Nebraska’s analyze Focus ALR Statutes. can be found ALR statutes of Nebraska’s The focus 60-6,205(1), as follows: influence of under the who drive while

Because persons all safety health and a hazard to the alcohol present is needed for the a procedure using highways, persons of any revocation of the operator’s swift and certain license to be a himself or herself health who has shown person an excessive with and hazard safety driving her and to deter body of alcohol his or concentration the influence of alcohol. from while under others of the statutes is the focus (Emphasis supplied.) drivers and the from unsafe twofold: to ostensibly protect public when drunk. deter drivers from vehicle operating to I am unable to come to the conclusion Unlike the majority, statement, intent is to primarily this the legislative that drunk to deter secondarily driving. and public protect Moreover, secondary, intent to deter was even if the legislative The relevant for our is irrelevant. inquiry such an inquiry the civil sanction can is whether . States, See, Austin v. United as remedial. solely characterized (1993); 125 L. Ed. 2d 488 U.S. 113 S. Ct. Ct. 104 L. 490 U.S. 109 S. United States v. Halper, intended (1989). Even if a sanction was particular Ed. 2d 487 effect, if this effect secondary precludes deter as a secondary to remedial, then the sanction solely the sanction characterizing defined the term. as the U.S. Court has Supreme is punishment U.S., v. Halper, supra. Austin v. United States supra; statutes, Let us examine the first stated of the ALR is, that from unsafe drivers. I find protect public nothing in this record that allows one to to the leap conclusion that Hansen is “a hazard to the health and presumptively safety all the next for because he persons using highways” days was for a burned out tested stopped eventually .143 taillight of alcohol 210 liters of breath on a November grams per If those facts are beyond a reasonable doubt in evening. proved law, a court of then Hansen should be for crime of punished However, DUI under the laws of the state. there is no basis in the ALR statutes or decisions of this court prior case, circumstances, concluding every that the regardless driver is unsafe an arbitrary period days or that recidivism is likely during period of time. premise drunk underlying every driver first-offense

is to be “a hazard to the health presumed of all safety for an persons using arbitrary time highways” 90-day period is not based on sound or evidence in reasoning any this record. Notably, arbitrary of the length administrative law (90 revocation for a first days offender) ensures that it is both than to allow the longer necessary driver time to sober up become a safe driver—and shorter than necessary allow any rehabilitation to meaningful occur. addition, pursuant 60-6,205(4), a license revocation

is not effective until 30 after the date days of the arrest in order to allow the offender an to exercise opportunity his or her rights in an administrative While such a hearing. 30-day waiting period probably it constitutionally necessary, serves hardly the “remedial” of swiftly an goal unsafe driver removing from when he highway or she is to be the likely most unsafe in the hours or days after the immediately arrest.

Moreover, in contrast to several other states that have adopted statutes, ALR our ALR statutes have no requirement of alcohol evaluation, treatment, substance abuse or alcohol abuse education in conjunction with the revocation time or period, to reinstatement prerequisite of a revoked license for first- or 60-6,205 second-time offenders. Neb. Rev. Compare Stat. §§ 60-6,211.05 and (Reissue 1993) with Alaska Stat. 28.35.030(h) (Cum. 1995) Supp. convicted (requiring person § evaluation, referral, and satisfy

of DUI to screening, program of authorized rehabilitation Ariz. Rev. requirements agency); 28-692.01(A) (Cum. 1995) Ann. Stat. Supp. (requiring § convicted of DUI to alcohol complete any person screening treatment); 23161(b) Cal. Veh. necessary additional Code § (West 1996); 286-261(d) (1993) Cum. Haw. Rev. Stat. Supp. § that offender referred to certified substance abuse (mandating counselor assessment of offender’s alcohol abuse or treatment; and need for if dependence counselor recommends offender, treatment for offender may be ordered to comply); 29-A, (West 1995); Me. Rev. Stat. Ann. tit. Supp. § 23, (Cum. 1995) Vt. Stat. Ann. tit. 1209a Supp. (requiring § first-time offenders to submit to alcohol assessment screening to determine whether reinstatement of license should be conditioned on satisfactpry completion therapy even program; ordered, if treatment is not offender must alcohol and complete education at driving own program expense).

If ALR statutory our scheme is really intended to protect form, or public remedy problem of drunk in some driving deterrence, other than swift or punishment it is woefully in that inadequate regard.

ALR Remedial? Solely

One does not have to beyond go plain language 60-6,205(1) to determine that ALR our statutes were intended to serve both a remedial and a punitive goal by to deter acting drivers from a vehicle operating when drunk. While the deterrence of drunk unquestionably societal proper a deterrent goal, a civil sanction is punishment as we States, have come to understand the term. Austin v. United U.S. 113 S. Ct. (1993); L. Ed. 2d 488 United States v. Halper, U.S. S. 109 Ct. 104 L. Ed. is, 2d 487 the final inquiry notwithstanding stated effect, punitive purpose clear punitive whether our ALR statutory scheme is still capable being characterized as solely a remedial serving United purpose. States v. Halper, supra. relies majority to some on degree authority from seven

other states which have held that their particular ALR statutory schemes do not constitute double jeopardy

[205] However, the fails to purposes. majority address the adequately relevant issue. It is not whether another ALR state’s statutory nature, scheme is considered or punitive remedial but whether this state’s ALR can statutory scheme characterized as solely remedial. fact, of the jurisdictions cited all by majority,

administratively a motorist’s license suspend for DUI for the same or a lesser of time and under similar length conditions as the concomitant criminal sanction of driver’s license suspension for DUI. See 28.15.165(d) Alaska Stat. (1994). Compare, § Ariz. Rev. Stat. Ann. (Cum. 28-692.01 with 28-694 Supp. § § 1995); Cal. Veh. (West Code 23160 with 13352 Cum. § Supp. § 1996); Haw. Rev. Stat. 286-261 (1993); with 291-4 La. Rev. § § Stat. Ann. (West 32:414 with 32:667 Cum. 1995); § Supp. § 29-A, Me. Rev. Stat. Ann. tit. 2453 (West with 2411 Supp. § § 23, 1995); Vt. (Cum. Stat. Ann. tit. 1205 1995) with Supp. (1987) (Cum. Also, 1206 and 1995). 1208 Supp. §§ as stated previously, six of the jurisdictions require some type alcohol evaluation and substance abuse education or treatment as part their remedial sanctions.

The also cites majority several pre-1989 cases for the (1) propositions a motor vehicle is not a state, fundamental but a right, privilege granted by (2) of license revocation was historically considered to be remedial in nature. cites to cases that predate United v. States are Halper, supra, of minimal assistance in making particularized assessment of the penalty imposed this case.

The view that it is somehow important to characterize a driver’s license as a or a right privilege misplaced. The U.S. Court has referred Supreme to the revocation of an operator’s license, due procedural process as an purposes, “entitlement,” and not as a mere privilege could be Burson, revoked a state summarily for cause. See Bell v. 402 535, 1586, U.S. 91 S. Ct. 29 L. Ed. 2d 90 This court has the U.S. acknowledged Court’s Supreme classification in Bell to the revocation of a referring license as the denial of an entitlement because it oftentimes results in a loss of See, Bosselman, livelihood State, to the licensee. Inc. v. 230 Michalski, Neb. (1988); N.W.2d 226 State v. 221 Neb. this court (1985). Unfortunately, 377 N.W.2d licenses driver’s erroneously labeling to revert back

continues advance the notion of it does nothing as privileges, “remedial” or of a license is considered the revocation whether times. in these post-Halper “punitive” Austin, Further, reliance majority’s light Halper Ress, (1957), and Neb. 81 N.W.2d 148 on Durfee Peterson, (1982), for the 314 N.W.2d 210 Neb. Neil v. historically of motorists’ licenses has that revocation proposition nature, action remedial in is outmoded a civil been considered make a assessment particularized We are to and unhelpful. announced mandated the rules of law as imposed, the penalty Austin, may and the that the penalty in and Halper be said to serve. ALR statutes assessment Nebraska’s A particularized (1) to the directly the administrative sanction is tied reveals that DUI; (2) for the underlying imposes greater of the accused guilt than the concomitant criminal sanction for of revocation periods instances; (3) 90-day in has an license many arbitrary DUI than for an individual to necessary revocation that is longer driver, a safe and shorter than necessary sober and become up occur; (4) alcohol rehabilitation to increases for meaningful from an for first arbitrary 90-day period license revocation offenders; arbitrary 1-year offenders to an period multiple (5) for no alcohol evaluation or remedial alcohol and provides the revocation The ALR statutes are period. education during least, “remedial” At legislation. not a model of Legislature 60-6,205(1) in set forth its and did not hide honestly purpose drunk the fact that drivers from motor deterring operating was one of its clear intentions. vehicles characteristics, the Given these driver’s license revocation in the ALR statutes cannot be jfairly provisions characterized a remedial and should be deemed solely serving as that term is now defined the U.S. Supreme However, a determination that ALR Court. of an and imposition criminal for the same subsequent prosecution underlying double is not to drunk jeopardy say offense constitutes drivers can or will avoid As the U.S. prosecution. Supreme 435, 450, Court noted United States v. 490 U.S. Halper, S. Ct. (1989): 104 L. Ed. 2d 487 Nothing today’s Government from ruling precludes the full civil a defendant seeking who penalty against not has been for the same conduct . . previously punished . . Nor does decision Government from prevent the full civil seeking both and the obtaining penalty full range statutorily authorized criminal in the penalties proceeding. same

(Emphasis supplied.) and its

Halper mean that the progeny simply government’s interest removing drunk drivers from the road must within advanced the well-established framework the U.S. Nebraska Constitutions.

White, C.J., J., Fahrnbruch, in this dissent. join Nebraska, appellee, Reeder,

State of v. John M.

appellant. 543 N.W.2d 429 February Filed 1996. No. S-94-848.

Case Details

Case Name: State v. Hansen

Court Name: Nebraska Supreme Court

Date Published: Jan 26, 1996

Citation: 542 N.W.2d 424

Docket Number: S-95-312

Court Abbreviation: Neb.