131 Wash. 2d 853 | Wash. | 1997
Lead Opinion
The parties and a judge of the Whitman County Superior Court jointly seek review of a Whitman County District Court decision granting the respondents’ motion to dismiss charges of driving while under the influence of intoxicating liquor in violation of RCW 46.61.502. We granted review. We reverse and remand for trial.
QUESTION PRESENTED
The sole question presented in this case is whether it is unconstitutional double jeopardy for the State of Washington to prosecute respondents for violation of RCW 46.61.502, driving a vehicle while under the influence of intoxicating liquor, when the Department of Licensing has previously issued each respondent a probationary license after test results showed each had a breath alcohol level of .10 percent or higher.
STATEMENT OF FACTS
The cases against all eight respondents were dismissed by the Whitman County District Court, the Honorable David Frazier, on May 1, 1995. On May 9, 1995 the State of Washington appealed the cases to the Whitman County Superior Court. The judge, the Honorable Wallis W. Friel,
The eight respondents were initially charged in the Whitman County District Court by the Whitman County Prosecuting Attorney for violations of RCW 46.61.502, driving while under the influence of intoxicating liquor. In connection with the State’s appeal, the parties on June 26, 1995 filed in the Whitman County Superior Court an "Agreed Narrative Report of Proceedings” dated June 16, 1995, which states:
[Respondents] Doy L. McClendon, Gil Crosby, Sally Parrish, Frank Sayre, Richard Triquart, Stephen Stark, Brian Hayton and Mark Booth [were] arrested for suspicion of violating RCW 46.61.502 on 12/9/94, 11/19/94, 12/2/94, 1/31/95, 12/18/94, 2/3/95, 2/9/95 and 3/5/95 [respectively]. Each defendant submitted to a BAC Datamaster Verifier test in compliance with RCW 46.20.308 and all relevant Washington Administrative Code provisions. Each defendant registered a breath test result of .10 or higher. All defendants [were] issued temporary licenses and advised of their right to an administrative hearing pursuant to [RCW] 46.20.365. And, all defendants were issued probationary licenses as a result of their performances on the breath test.
Subsequent to the issuance of the probationary licenses the Whitman County Prosecutor’s office initiated criminal actions in the Whitman County District Court for alleged violations of RCW 46.61.502 [based on] the same conduct. On February 16, 1995, Defense’s Motion to Dismiss for Violation of Double Jeopardy was filed. On February 21, 1995, the State’s response was filed. Argument on this issue was heard by Judge [David] Frazier on March 3 and March 8, 1995. Judge Frazier reserved ruling on the matter. On April 17, 1995, Judge Frazier ruled in favor of the State finding that subjecting a defendant to a civil proceeding which seeks imposition of a probationary driver’s license did not constitute punishment. On April 18, 1995, defense counsel filed Defendant’s Motion for Reconsideration. On April 27, 1995, Judge Frazier reversed his decision of April 17, 1995, ruling in favor of the defense and citing State v. Calle, 125 Wn.2d 769 [888 P.2d*857 155] (1995), but reserved ruling on the appropriate remedy. On May 1, 1995, over the objections of the State, on the ground of lack of notice, the above-entitled cases [were] consolidated and Findings of Fact and Conclusions of Law were entered granting the defense Motions to dismiss. On May 9, 1995, the State [Appellant] filed a timely Notice of Appeal.
The Findings of Fact and Conclusions of Law entered by the District Court on May 1, 1995 stated:
FINDINGS OF FACT
1. The Defendant was arrested on suspicion of DUI. He/ She agreed to take a breath test which registered .10 or above. Based on these facts, the arresting officer provided to the Washington State Department of Licensing a Report of Breath! Blood Test. Pursuant to RCW 46.20.365 the arresting officer issued to the Defendant a temporary license and the Washington State Department of Licensing initiated administrative action which resulted in the imposition of a five year requirement that Defendant drive on a probationary license.
2. Based on the same facts/incident, the Whitman County Prosecuting Attorney’s Office issued a criminal citation charging the Defendant with the crime of DUI pursuant to RCW 46.61.502.
BASED ON THESE FINDINGS, the court concludes:
CONCLUSIONS OF LAW
1. The State of Washington, based upon the same facts, has initiated two separate and distinct proceedings against the Defendant.
2. The criminal proceeding seeks to punish the Defendant.
3. The civil proceeding brought by the Department of Licensing which seeks imposition of a probationary license also constitutes punishment as that term is considered under double jeopardy analysis pursuant to State v. Calle, 125 Wn.2d 769 [888 P.2d 155] (1995).
1. That the criminal charge of DUI filed herein is dismissed with prejudice.
2. Costs are not awarded, but shall abide the outcome of any appeal.
On July 28, 1995, Appellant, Respondents, and the Honorable Wallis W. Friel, Whitman County Superior Court, filed a joint request for direct review by the Supreme Court. We granted review on October 5, 1995. Amicus Curiae, Washington Association of Prosecuting Attorneys, filed a brief in support of Appellant State of Washington on October 26, 1995.
DISCUSSION
Waiver of Rules
Rule for Appeal of Decisions of Courts of Limited Jurisdiction (RALJ) 1.1(a) provides for review by the superior court of certain decisions of courts of limited jurisdiction, including final decisions of district courts.
This Court’s authority to make rules carries with it the inherent power to waive rules when justice requires it.
Probationary Licenses and 1995 Legislative Changes
Because the Legislature in 1995 repealed or amended statutes relating to probationary licenses after these appeals were filed, we must first determine whether those changes affect this case.
The Legislature created the new category of "probationary license” in the "1994 Omnibus Drunk Driving Act” (Act), which took effect July 1, 1994.
Under the 1994 Act, former RCW 46.61.5051 provided penalties for a person with a regular driver’s license who
The Legislature in 1995 repealed former RCW 46.61.5051 and former RCW 46.61.5052, effective September 1, 1995.
A statute is presumed to apply prospectively unless it is remedial in nature or unless the Legislature provides for retroactive application.
Because there are no disputed facts, we will consider only questions of law, which we review de novo.
Double Jeopardy
The double jeopardy clause of the Fifth Amendment to the United States Constitution provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb.” The double jeopardy clause protects against (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense.
The State contends issuance of probationary licenses was a permissible exercise of the State’s police power, and not "punishment” contemplated under the double jeopardy clause of the Fifth Amendment to the United States Constitution and Washington Constitution, article I, section 9.
Civil Sanctions as "Punishment”
The Supreme Court first decided when a civil penalty may be considered punishment under the double jeopardy clause in United States v. Halper,
In Halper, the Supreme Court stated that "a civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment, as we have come to understand the term.”
We therefore hold that under the Double Jeopardy Clause a defendant who already has been punished in a criminal prosecution may not be subjected to an additional civil sanction to the extent that the second sanction may not fairly be*864 characterized as remedial, but only as a deterrent or retribution.[28 ]
Other appellate courts have relied upon and distinguished the explicit holding in Halper from the earlier quoted statement from that same case.
Respondents claim a probationary license is retributive and serves as a deterrent because it potentially enhances mandatory minimum penalties for the holder who is convicted in the future of violating RCW 46.61.502 or RCW 46.61.504.
The Supreme Court in Halper further explained and narrowed application of its decision by stating, "What we
This case is neither rare nor exceptional. "Drunk drivers cause an annual death toll of over 25,000 and in the same time span cause nearly one million personal injuries and more than five billion dollars in property damage.”
Respondents interpret the Halper decision too broadly. Halper applies to the "rare case” where a person is subject to a civil penalty "overwhelmingly disproportionate” to the damages that person caused. That circumstance is not present in this case. We conclude the Halper decision does not apply to the facts of this case.
Respondents also rely upon Montana v. Kurth Ranch
The Court in Kurth Ranch held Montana’s tax was punishment, but did not rely upon Halper in reaching its decision. Recognizing that tax statutes serve a different purpose than civil penalties, the Court agreed Halper's method of determining whether the penalty was remedial or punitive "does not work in the case of a tax statute.”
Any deterrent effect from issuance of probationary licenses in this case does not "automatically” identify it as a form of punishment nor necessarily make it punitive. Respondents argue probationary licenses are a form of punishment. But "whether a sanction constitutes punishment” is not determined from the defendant’s perspective
Although the Court in Kurth Ranch did not rely upon Halper in reaching its decision, it did acknowledge Halper’s holding that "a defendant who already has been punished in a criminal prosecution may not be subjected to an additional civil sanction to the extent that the second sanction may not be fairly characterized as remedial, but only as a deterrent or retribution.”
Respondents rely not only upon expansive language in Halper, but also cite Austin v. United States
Under Halper, the purposes actually served by the sanction at issue must be assessed in determining whether a civil sanction is "punishment” under double jeopardy analysis.
We conclude that issuance of probationary licenses in this case was remedial, comporting with the principles in Halper. It is true that a probationary license subjects its holder to enhanced minimum mandatory penalties, but that happens only if the person subsequently violates RCW 46.61.502 or RCW 46.61.504.
Amicus Curiae, Washington Association of Prosecuting Attorneys, referring to Kurth Ranch, suggests this Court should look to the historical background of administrative licensing proceedings to determine whether issuance of probationary licenses in this state constitutes "punishment.” The State correctly points out that administrative licensing proceedings in this state have long been considered remedial, and not punitive. Respondents also acknowledge that license revocation or suspension is "clearly remedial, at least in part” because it removes dangerous drivers from the road to the benefit of the public.
Issuance of probationary licenses is a procedure far short of the more drastic ones of suspension or revocation of licenses. It ultimately protects users of public highways, and thus, under Halper, is fairly characterized as remedial and not solely retributive or deterrent.
CONCLUSION
We conclude that administrative issuance of probationary licenses is not punishment under the double jeopardy clause. We also conclude that RCW 46.61.502 is constitutional. We reverse the decision of the Whitman County District Court granting respondents’ motion to dismiss charges of driving while under the influence of intoxicating liquor in violation of the statute and remand for trial in the Whitman County District Court.
Dolliver, J., concurs.
RAL-J 1.1(a) provides in pertinent part:
"(a) Proceedings Subject to Rules. These rules establish the procedure, called appeal, for review by the superior court of a final decision of a court of limited jurisdiction, subject to the restrictions defined in this rule. These rules apply ... to review of (1) district courts . . . .”
O’Connor v. Matzdorff, 76 Wn.2d 589, 596-97, 458 P.2d 154 (1969).
City of Seattle v. Williams, 128 Wn.2d 341, 908 P.2d 359 (1995).
See Laws of 1995, ch. 332; Laws of 1995, 1st Spec. Sess., ch. 17.
Laws of 1994, ch. 275.
Under RCW 46.61.502 it is a gross misdemeanor for a person to (1) drive and have a blood alcohol concentration of 0.10 within two hours after driving, as shown by tests; or (2) drive while under the influence of or affected by intoxicating liquor or drugs; or (3) drive while under the influence of or affected by intoxicating liquor and drugs.
Under RCW 46.61.504 a person commits a gross misdemeanor for being in actual physical control of a motor vehicle and (1) under the influence of intoxicating liquor or drugs within two hours after being in physical control of the vehicle; or (2) while under the influence of or affected by intoxicating liquor or drugs; or (3) while under the influence of or affected by intoxicating liquor and drugs.
RCW 46.20.365(3)(a) (repealed 1995). This section, referring to RCW 46.61.502 and RCW 46.61.504, provided that probationary licenses were issued to persons arrested in such circumstances only if it was the first such incident within five years.
RCW 46.61.5051(1) (repealed 1995).
RCW 46.61.5052(1) (repealed 1995).
See Laws of 1995, ch. 332.
Laws of 1995, 1st Spec. Sess., ch. 17.
See Laws of 1995, ch. 332; Laws of 1995, 1st Spec. Sess., ch. 17.
See Washington Waste Sys., Inc. v. Clark County, 115 Wn.2d 74, 794 P.2d 508 (1990); Miebach v. Colasurdo, 102 Wn.2d 170, 181, 685 P.2d 1074 (1984).
In re F. D. Processing, Inc., 119 Wn.2d 452, 463, 832 P.2d 1303 (1992); Miebach, 102 Wn.2d at 181.
Department of Retirement Sys. v. Kralman, 73 Wn. App. 25, 33, 867 P.2d 643 (1994).
Adcox v. Children’s Orthopedic Hosp. & Med. Ctr., 123 Wn.2d 15, 30, 864 P.2d 921 (1993).
Id.
The Legislature repealed former ROW 46.20.365, which also relates to probationary licenses. In addition, in 1995 it amended sections of the 1994 Act relating to probationary licenses, including former ROW 46.20.355. See Laws of 1995, ch. 332 and Laws of 1995,1st Spec. Sess., ch. 17 (which contains a complete history of the 1995 legislative changes to the 1994 Omnibus Drunk Driving Act).
State v. Ford, 125 Wn.2d 919, 891 P.2d 712 (1994), reconsideration denied (May 9, 1995); Timberline Air Serv., Inc. v. Bell Helicopter-Textron, Inc., 125 Wn.2d 305, 311, 884 P.2d 920 (1994).
U.S. v. Halper, 490 U.S. 435, 440, 109 S. Ct. 1892, 104 L. Ed. 2d 487 (1989).
We do not discuss the State’s claim under the Washington State Constitution because the State has not analyzed the factors in State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808, 76 A.L.R.4th 517 (1986), to determine whether the state constitution should he independently or more broadly interpreted. This court will not engage in independent state constitutional analysis when a claimant does not adequately brief the Gunwall factors. State v. Maxfield, 125 Wn.2d 378,
490U.S. 435, 109 S. Ct. 1892, 104 L. Ed. 2d 487 (1989).
Id.
Id. at 443.
Id. at 448 (emphasis added).
Br. of Resp’ts at 8-12.
Halper, 490 U.S. at 448-49 (emphasis added).
State v. Hickam, 235 Conn. 614, 668 A.2d 1321, 1324 (1995); State v. Hanson, 532 N.W.2d 598, 601 (Minn. Ct. App. 1995), aff’d 543 N.W.2d 84 (Minn. 1996); Tench v. Commonwealth, 21 Va. App. 200, 204-05, 462 S.E.2d 922 (1995).
Halper, 490 U.S. at 449.
Compare former RCW 46.61.5051 with former RCW 46.61.5052.
Br. of Resp’ts at 13.
Halper, 490 U.S. at 449.
Michigan Dep’t of State Police v. Sitz, 496 U.S. 444, 451, 110 S. Ct. 2481, 110 L. Ed. 2d 412 (1990) (quoting 4 Wayne R. LaFave, Search and Seizure: A Treastise on the Fourth Amendment § 10.8(d), at 71 (2d ed. 1987)).
Halper, 490 U.S. at 449.
Br. of Appellant at 7. But former ROW 46.20.355(3) and former RCW 46.20.311 did require a $50.00 yearly probationary fee.
511 U.S. 767, 114 S. Ct. 1937, 128 L. Ed. 2d 767 (1994).
114 S. Ct. at 1944.
114 S. Ct. at 1948 (quoting with agreement language from the dissenting opinion of Rehnquist, C.J., at 1950).
114 S. Ct. at 1946.
114 S. Ct. at 1947.
Halper, 490 U.S. at 447 n.7.
Kurth Ranch, 114 S. Ct. at 1945 (quoting Halper, 490 U.S. at 448-49).
509 U.S. 602, 113 S. Ct. 2801, 125 L. Ed. 2d 488 (1993).
33 F.3d 1210 (9th Cir. 1994), opinion amended on denial of reh’g, 56 F.3d 41 (1995), cert granted, 516 U.S. 1070, 116 S. Ct. 762, 133 L. Ed. 2d 707 (1996).
Austin, 113 S. Ct. at 2812.
490 U.S. at 447 n.7.
Halper, 490 U.S. at 449.
id.
RCW 46.61.5052 (repealed 1995).
Halper, 490 U.S. at 446.
Br. of Resp’ts at 14.
O’Day v. King County, 109 Wn.2d 796, 817, 749 P.2d 142 (1988); State v. Scheffel, 82 Wn.2d 872, 879, 514 P.2d 1052 (1973), appeal dismissed, 416 U.S. 964 (1974).
See State v. Zerkel, 900 P.2d 744 (Alaska Ct. App. 1995), reh’g denied (Aug. 14, 1995), and hearing denied (Dec. 4, 1995); Baldwin v. Department of Motor Vehicles, 35 Cal. App. 4th 1630, 42 Cal. Rptr. 2d 422 (1995), as modified on denial of reh’g (Jul. 7,1995), and review denied (Sep. 8, 1995); Davidson v. Mackinnon, 656 So. 2d 223 (Fla. Dist. Ct. App.), review denied, 662 So. 2d 931 (Fla. 1995); State v. Higa, 79 Haw. 1, 897 P.2d 928 (1995), reconsideration denied (Jun. 13, 1995); State v. Funke, 531 N.W.2d 124 (Iowa 1995); State v. Jones, 340 Md. 235, 666 A.2d 128 (1995), cert denied, 516 U.S. 1173, 116 S. Ct. 1265, 134 L. Ed. 2d 213 (1996); State v. Savard, 659 A.2d 1265 (Me. 1995); State v. Hanson, 532 N.W.2d 598 (Minn. Ct. App. 1995), aff’d, 543 N.W.2d 84 (Minn. 1996); State v. Young, 3 Neb. App. 539, 530 N.W.2d 269 (1995), review sustained (May 11,1995); State v. Zimmerman, 539 N.W.2d 49 (N.D. 1995); State v. Strong, 158 Vt. 56, 605 A.2d 510 (1992).
Concurrence Opinion
(concurring) — While I agree with the majority opinion, I do not believe we need to rely on the rather unpredictable course of the United States Supreme
Jurisdictions that have considered the question have overwhelmingly held licensure actions to be remedial, not punishment: Thompson v. State, 896 F. Supp. 220 (D. Me. 1995) (suspension of license under Maine statute was not punishment under double jeopardy clause and did not bar subsequent DUI
Even if one were to disagree, as the dissent does, with the multitudes of our colleagues nationwide who have held drivers license revocations and suspensions are not punishment for double jeopardy purposes, the probationary status complained of in the present case imposes no immediate sanction whatsoever on the licensee, and cannot possibly be considered punishment.
Durham, C.J., and Guy, J., concur with Talmadge, J.
The dissent relies on our language in State v. Clark, 124 Wn.2d 90, 98, 875 P.2d 613 (1994): "[A] forfeiture statute must be solely remedial to escape characterization as 'punishment’ under the federal double jeopardy clause.” Clark, in turn, relied on Austin v. United States, 509 U.S. 602, 113 S. Ct. 2801, 125 L. Ed. 2d 488 (1993), for the same wording. Clark, 124 Wn.2d at 100. Leaving aside the important question of whether the same considerations that apply in the civil forfeiture arena apply in the context of driver license administration, the Supreme Court has decided the "holding of Austin was limited to the Excessive Fines Clause of the Eighth Amendment, and we decline to import the analysis of Austin into our double jeopardy jurisprudence.” United States v. Ursery, 516 U.S. 267, 116 S. Ct. 2135, 2147, 135 L. Ed. 2d 549 (1996). The dissent evidently believes the Supreme Court is wrong about this and relies heavily on Austin for its double jeopardy analysis. We are bound to observe the Supremacy Clause: the Supreme Court’s rulings on double jeopardy under the federal constitution control. We have said our state constitution provides no greater double jeopardy protection than the federal constitution. State v. Gocken, 127 Wn.2d 95, 896 P.2d 1267 (1995).
Many states use different terminology for the crime of driving under the influence of alcohol or drugs (DUI). I use DUI as the reference for all such statutes.
Even Justice Stevens, the lone dissenter in Ursery, suggested "administrative licensing sanctions are remedial.” Ursery, 116 S. Ct. at 2161 n. 16 (Stevens, J., concurring in part, dissenting in part).
A statutory scheme providing an enhanced criminal sentence in the future based upon a purely administrative action in the past might raise serious due process (not double jeopardy) concerns. Justice Alexander correctly observes in his concurrence in the dissent, "the probationary license is treated as a prior DUI conviction whether or not the holder of that license is ultimately convicted
The dissent’s conclusion that the issuance of a probationary license is punishment is strange. As a consequence of the issuance of the probationary license in this case, precisely nothing happened to the respondents. They were not deprived of life, limb, liberty, or property. Nor was there any effect whatsoever on their privilege to drive in Washington. In fact, even though their BAC Datamaster tests indicated they were driving with more than the legal limit of alcohol in their systems, they have not been tried for drunk driving because the court below dismissed the charges against them. The respondents have not been punished. "The risk to which the [Double Jeopardy] Clause refers is not present in proceedings that are not 'essentially criminal.’ ” Breed v. Jones, 421 U.S. 519, 528, 95 S. Ct. 1779, 44 L. Ed. 2d 346 (1975). It is only upon the contingency of a future charge for DUI that the effect of the probationary license springs to life. I cannot comprehend how the Double Jeopardy Clause can apply to something that has not yet happened, and may never happen, to require dismissal of the DUI charges in this case.
Concurrence in Part
(concurring in dissent) — I concur in the dissent. I do so because I agree with Justice Sanders that the issuance of a probationary driver’s license, pursuant to former RCW 46.61.5052, has no remedial purpose. Its only purpose, as the dissent observes, is punitive in that it has the effect of increasing the punishment of the probationary licensee on his or her súbsequent offense for DUI. Dissenting op. at 878-80. In essence, the probationary license is treated as a prior DUI conviction whether or not the holder of that license is ultimately convicted of the charge which resulted in the issuance of the probationary license.
I write separately only because I disagree with the view expressed in the dissent that if a sanction is partially remedial and partially punitive, it always violates the Double Jeopardy Clause of the United States Constitution. Dissenting op. at 882-83. In reaching that conclusion, the dissent relies primarily on United States v. Halper, 490 U.S. 435, 448, 109 S. Ct. 1892, 104 L. Ed. 2d 487 (1989) in
The Halper case has, however, been undercut somewhat by the recent case of United States v. Ursery, 516 U.S. 267, 116 S. Ct. 2135, 135 L. Ed. 2d 549 (1996). Regarding that case, the Court said that if the language of that case were to be "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.” Ursery, 116 S. Ct. at 2146 n.2. In Ursery, the Court explicitly stated the test that should be employed to determine when a civil sanction is punitive. It said that a sanction is punishment if either (1) it is intended by Congress to be criminal or (2) " 'whether the statutory scheme was so punitive either in purpose or effect as to negate’ Congress’ intention to establish a civil remedial mechanism.’ ” Ursery, 116 S. Ct. at 2142 (quoting United States v. One Assortment of 89 Firearms, 465 U.S. 354, 365, 104 S. Ct. 1099, 79 L. Ed. 2d 361 (1984) (quoting United States v. Ward, 448 U.S. 242, 248-49, 100 S. Ct. 2636, 65 L. Ed. 2d 742 (1980))).
It is not difficult to conceive of a statutory scheme in which a requirement that probationary licenses be issued to first time DUI offenders could have a predominantly remedial effect. If, for example, the Legislature had provided that a person with a probationary license could drive only from 9:00 a.m. to 6:00 p.m., the overriding effect of the provision would be remedial because the provision would have the effect of removing the offending driver from the highway during the hours that drinking and driving is most prevalent. Although, arguably, such a restriction on driving is punitive, that aspect of the sanction does not detract from its main thrust, which is remedial.
Under the legislative scheme we have here, however, there is no such remedial effect. The probationary license does not inhibit the licensee’s privilege to drive in any
Moreover, because the issuance of a probationary license under RCW 46.61.5051 has no remedial effect, the multi-page string citation of authority in the concurrence is largely irrelevant. It is true that administrative revocation or suspension of a driver’s license may well have a remedial rather than punitive effect, and thus prove to be no bar on double jeopardy grounds to a criminal prosecution. However, this conclusion simply begs the question in this case, which is whether the probationary license at issue is remedial. Unlike a revocation or a suspension, the probationary license here has no effect other than to punish.
Johnson and Madsen, JJ., concur with Alexander, J.
Dissenting Opinion
(dissenting) — The Fifth Amendment’s prohibition against double jeopardy is absolute: ". . . [N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . . .” U.S. Const, amend. V. This clause prohibits multiple punishments for the same offense. United States v. Halper, 490 U.S. 435, 448, 109 S. Ct. 1892, 1902, 104 L. Ed. 2d 487 (1989).
If reclassifying allegedly intoxicated drivers to "probationary” status is a form of punishment, the initiation of a criminal proceeding to again punish the same conduct violates the double jeopardy clause and the DUI charge must be dismissed. I agree with the trial court that these defendants have been unconstitutionally placed in jeopardy of punishment twice for the same conduct and would affirm the trial court’s dismissal. I therefore dissent from the contrary conclusion reached by the majority.
The majority opinion rests upon two propositions: (1) summary license revocation with probationary license substitution is not punishment and (2) a sanction which is
This probationary license does not alter one’s privilege to drive but puts the driver in a special class of drivers singled out for enhanced jail time.
Is this probationary license punishment?
The majority opines, "[Probationary licenses serve a remedial purpose because they alert the Department and law enforcement officers to a person’s probationary status.” Majority at 864 (emphasis added). Why alert the authorities? Do the authorities simply have inquiring minds or do they need to be "alerted” so they will impose more jail time, next time?
The majority’s analysis is difficult because any alleged distinction between "remedial” and "punishment” is incoherent; punishment is simply one form of remedy. Another form of remedy might be nonpunitive; however, "remedy” includes both. See Roger Pilón, Criminal Remedies: Restitution, Punishment, or Both?, Ethics 348 (July 1978). I have therefore substituted the alternate generic term "sanction” to include all possible sanctions of a puni
When the majority says "[Probationary licenses serve a remedial purpose” it fails to tell us whether this "remedy” is punitive or otherwise, but apparently assumes "otherwise.” Under this statute the only sanction imposed by the probationary license is to substantially enhance mandatory criminal penalties to be imposed upon the driver’s second DUI conviction if arrested while driving with a probationary license. The question is therefore whether this sanction—reclassification to potentially heightened criminal penalties—is "punishment” in itself for the same conduct which led to the DUI charges. Certainly, it is conceded, both the probationary license and the DUI charges result from the same conduct.
If a probationary license imposed under this particular statute is a sanction of a punitive nature, it must be so recognized for double jeopardy purposes.
When considering the problem, I certainly agree with the majority and concurrence that not all sanctions are punitive while some certainly are.
Nonpunitive sanctions might include, for example, compensatory damages, restitution, and forfeiture of stolen property for return to its rightful owner. Punishment, on the other hand, would certainly include penal incarceration as well as the threat of incarceration to deter future criminal acts.
Reclassifying one’s license status to "probationary” under this particular statute does not affect the right or scope of the defendant’s driving privileges; however, it does subject him to mandatory enhanced penalties should he be arrested on a subsequent occasion. The sole purpose of this reclassification is simply to deter the driver from committing another DUI through threat of enhanced punishment. However, deterrence is punishment for double jeopardy purposes. Halper, 490 U.S. at 448. Substitution of the probationary license for the normal license is punishment in itself without regard to whether
The concurring opinion cites multiple decisions from other jurisdictions essentially holding license suspensions and limitations are nonpunitive sanctions and, thus, do not constitute punishment for double jeopardy purposes. However, those cases may be generally distinguished because they involve administratively removing a driver from the road, or restricting his right to drive in some fashion, whereas the statute at issue changes the licensing status of the driver simply to threaten an enhanced criminal penalty for any subsequent DUI.
A few cases hold an administrative suspension of one’s license to drive punitive for double jeopardy purposes, see, e.g., State v. Ackrouche, 70 Ohio Misc. 2d 34, 650 N.E.2d 535 (1995), however, such cases must be distinguished for the same reason!
Any double punishment violates double jeopardy
The majority opines that unless a sanction is solely for
Halper states:
We have recognized in other contexts that punishment serves the twin aims of retribution and deterrence .... [I]t follows that a civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment, as we have come to understand the term. . . . We therefore hold that under the Double Jeopardy Clause a defendant who already has been punished in a criminal prosecution may not be subjected to an additional civil sanction to the extent that the second sanction may not fairly be characterized as remedial, but only as a deterrent or retribution.
Halper, 490 U.S. at 448-49. (Emphasis added.) Halper holds a sanction not "solely remedial” is punishment for double jeopardy purposes. See Carlos F. Ramirez, Administrative License Suspensions, Criminal Prosecution, and the Double Jeopardy Clause, 23 Fordham Urb. L.J. 923, 927-38 (1996). Halper, read as a whole, demonstrates the Supreme Court is faithful to the spirit and meaning of the double jeopardy clause, which prevents double punishment even though one or both of those punishments may also be accompanied by other nonpunitive sanctions or goals. But the construction placed on this language by the majority would have the Supreme Court contradicting itself within the same paragraph. Further, the majority’s reading contradicts the plain meaning of the Halper text by ignoring the words "to the extent,” which support the proposition that unless the sanction is "solely to serve a remedial purpose” it is to that "extent” not remedial but punitive.
The majority’s claim that one may be subject to multiple punishments without violating the double jeopardy clause
Subsequent Supreme Court cases of Department of Revenue v. Kurth Ranch, 511 U.S. 767, 114 S. Ct. 1937, 128 L. Ed. 2d 767 (1994); Austin v. United States, 509 U.S. 602, 113 S. Ct. 2801, 125 L. Ed. 2d 488 (1993); and United States v. Ursery, 516 U.S. 267, 116 S. Ct. 2135, 135 L. Ed. 2d 549 (1996) deal with the same or related topics and are consistent with Halper.
Civil forfeiture cases distinguished
Austin and Ursery were both civil forfeiture
Austin involved a civil forfeiture proceeding against a body shop and mobile home after the owner pleaded guilty to a drug offense. The government defended its action under the excessive fines clause, claiming the civil forfeiture was not "punishment” and thus could not be an excessive fine under the Eighth Amendment. Relying on Halper "that civil proceedings may advance punitive and remedial goals, and, conversely, that both punitive and remedial goals may be served by criminal penalties,” Austin, 113 S. Ct. at 2806 (citing Halper, 490 U.S. at 447), the Court held:
[T]he question is not, as the United States would have it,*883 whether forfeiture under §§ 881(a)(4) and (a)(7) is civil or criminal, but rather whether it is punishment.
In considering this question, we are mindful of the fact that sanctions frequently serve more than one purpose. We need not exclude the possibility that a forfeiture serves remedial purposes to conclude that it is subject to the limitations of the Excessive Fines Clause. We, however, must determine that it can only be explained as serving in part to punish.
Austin, 113 S. Ct. at 2806 (emphasis added). Austin therefore seems to apply the Halper double jeopardy analysis to the excessive fines clause.
Later Austin restates the same point: "Fundamentally, even assuming that §§ 881(a)(4) and (a)(7) serve some remedial purpose, the Government’s argument must fail.” Id. at 2812. Austin therefore relies upon the same language in Halper which is relied upon by the respondents here, but in a forfeiture context. It emphasizes in footnote 14 that the nature of the inquiry is whether the sanction is "simply” or "purely” remedial (in which case it is not a punishment) or whether it has any punitive characteristics (in which case it must be considered a punishment for the purpose of the excessive fines clause).
In Ursery a majority of the United States Supreme Court held civil forfeiture, an in rem proceeding, cannot be punishment for the purpose of the double jeopardy clause of the United States Constitution although it may be excessive for the purpose of the excessive fines clause. But for a "fine” to be excessive it must first be a fine—and Ursery holds forfeitures are not fines. This may be debatable; however, it does not purport to affect the Court’s previously established double jeopardy analysis.
While careful to distinguish civil forfeitures from all other types of sanctions, a footnote to the majority opinion discusses the Halper case in the context of Justice Stevens’s dissenting opinion. Ursery, 116 S. Ct. at 2145 n.2. There the Court observed:
Whether a particular sanction "cannot fairly he said solely to*884 serve a remedial purpose” is an inquiry radically different from that which we have traditionally employed in order to determine whether, as a categorical matter, a civil sanction is subject to the double jeopardy clause . . ..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.
The context of the footnote suggests the Court was primarily interested in stating even if civil forfeitures are purely or partially punitive that does not subject them to double jeopardy analysis in any event. In dissent Justice Stevens disagreed. Even so, it is clear the majority distinguished forfeitures from all other types of sanctions, drawing a "sharp” distinction between in rem forfeiture and in personam civil penalties.
Punitive civil sanction cases
Kurth Ranch addressed the double jeopardy question directly in the context of a nonforfeiture Montana tax on illicit drugs. It is the seminal case because it is the United States Supreme Court’s last word on the subject at hand. The issue in Kurth was whether or not the tax "has punitive characteristics that subject it to the constraints of the Double Jeopardy Clause.” Kurth, 114 S. Ct. at 1945 (emphasis added). The Court found it did and applied double jeopardy to bar the parallel criminal charges.
As in Kurth, the like question here is whether this probationary license status has any punitive characteristics. If so it is punishment for double jeopardy purposes,
Both the concurrence to the majority and the concurrence to this dissent argue an inconsistency between the Supreme Court’s analysis in Ursery and the Supreme Court’s analysis in Halper and Kurth, and thus claim the Ursery analysis should be followed in the case at bar because Ursery is the most recent of the three. Citing language in Ursery to the effect that an excessive fines clause analysis in the Austin forfeiture case should not be "imported” into double jeopardy cases not involving forfeiture or excessive fines, Concurrence at 870 n.55 (citing Urs-ery, 116 S. Ct. at 2147), the concurrence suggests the dissenting opinion does not follow Ursery because "the dissent evidently believes the Supreme Court is wrong [in Ursery] . . . .” This misses the point.
Whether or not the Supreme Court dropped the ball in Ursery (and there is substantial scholarly comment to that effect)
State cases on double jeopardy
State v. Clark, 124 Wn.2d 90, 98, 100, 875 P.2d 613 (1994) applied a double jeopardy standard to forfeiture facts. The question there was whether or not a civil forfeiture statute in combination with criminal sanctions violated state or federal prohibitions against the imposition of double jeopardy. A unanimous court held, "[A] forfeiture statute must be solely remedial to escape characterization as 'punishment’ under the federal double jeopardy clause.” Clark, 124 Wn.2d at 98. Clark construed Austin to hold "[i]f the civil forfeiture statute is at all punitive, it is to be deemed 'punishment.’ ” Clark, 124 Wn.2d at 100. A majority of this court arguably reached the same result in State v. Cole, 128 Wn.2d 262, 295, 297, 300, 906 P.2d 925 (1995) wherein it construed Austin and Clark to require a double jeopardy analysis unless the sanction "serves solely a remedial purpose.” Cole, 128 Wn.2d at 295 (Johnson, J., dissenting).
Whether Clark and Cole are consistent with Ursery’s federal (not state) forfeiture analysis remains to be seen; however, clearly these cases facially define the punishment standard for double jeopardy purposes—which is the issue presented by this case.
I conclude that this probationary license is wholly punitive, and nothing else. It does not revoke or limit the licensed driver’s privilege to drive but is there to deter a subsequent DUI by enhancing the applicable mandatory minimum jail time. If that isn’t punishment, what is?
Compare RCW 46.61.5051 (repealed by Laws 1995, ch. 332, § 21), Alcohol violator with regular license—penalties with RCW 46.61.5052 (repealed by Laws 1995, ch. 332, § 21), Alcohol violator with probationary license—penalties. Under the 1994 statutory scheme, a driver with a "regular” nonprobationary license and no DUI convictions within the past five years and whose breath test exceeded .10 but was below .15, faced a mandatory one-day minimum in jail and a ninety-day license suspension. Under similar circumstances, a driver with a probationary license faced a mandatory seven days in jail and a one-year license revocation, even if it was a first conviction. The probationary license lasted for a period of five years from the date the probationary status was imposed. RCW 46.20.355(2), RCW 46.61.5051(4) (repealed by Laws 1995, ch. 332, § 21). The probationary license status continued whether or not there were DUI charges, much less a DUI conviction.
The concurrence states . . the probationary status complained of in the present case imposes no immediate sanction whatsoever on the licensee, and cannot possibly be considered punishment.” Concurrence at 874.1 disagree. The "immediate sanction” is revocation of the standard license and substitution of the probationary license. This substitution is punishment because its purpose is deterrence.
The concurrence cites State v. Gustafson, 76 Ohio St. 3d 426, 668 N.E.2d 435 (1996) for the proposition that a "civil sanction imposed as a result of administrative license suspension proceeding was not punishment for double jeopardy purposes.” Concurrence at 873. Gustafson must be distinguished because it involves an immediate license suspension which removes the driver from the road. Nevertheless, the opinion affirmatively adds even a summary sanction may not continue beyond the DUI trial, for to do so would violate the constitutional double jeopardy prohibition against multiple punishments for the same oifense. ("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 [the DUI statute].” 668 N.E.2d at 448.) I note the probationary license at issue here survives the trial (whatever the result) for five years. RCW 46.20.355(2), RCW 46.61.5051 (repealed by Laws 1995, ch. 332, § 21). Therefore it not only violates double jeopardy but even continues to punish those who are acquitted for the alleged predicate criminal conduct.
Cf. Roger Pilon, Can American Asset Forfeiture Law Be Justified?, 39 N.Y.L. Sch. L. Rev. 311 (1994) (forfeiture in general has gotten out of hand).
By its own terms, Ursery is clearly limited to in rem civil forfeiture cases. "Halper dealt with in personam civil penalties under the Double Jeopardy Clause; Kurth Ranch with a tax proceeding under the Double Jeopardy Clause. . . . None of those cases dealt with the subject of this case: in rem civil forfeitures for purposes of the Double Jeopardy Clause.” Ursery, 116 S. Ct. at 2147, 135 L. Ed. 2d at 567-68.
"[I]f a particular remedial sanction can only be understood as also serving punitive goals, then the person subjected to the sanction has been punished despite that fact that the sanction is also remedial. To conclude otherwise effectively invalidates the Double Jeopardy Clause by allowing multiple punishments for the same conduct merely because the punishments also serve remedial purposes. We therefore must conclude that if a sanction is not exclusively remedial, but rather can only be explained as also affecting deterrence or retribution, it is punishment for double jeopardy analysis.”
Hudson, 14 F.3d at 540.
See, e.g., Jeffrey Steinborn, United States v. Ursery; United States v. $405,098.23: Supreme Court closes double jeopardy door, Wash. Crim. Def. 10,11 (Nov. 1996) ("[Rjead the Ursery opinion. I recommend some form of sedation as a prelude. But if you want to know what it means, that’s simpler The Supreme Court has indulged the government and given it carte blanche to loot.”); Roger Pilón, Forfeiting Reason, 3 Regulation 15, 18 (1996) (the reasoning of Ursery opinion is result-oriented, circular, and incoherent); cf. Pilón, supra note 4; Donald Dripps, The Exclusivity of the Criminal Law: Toward a 'Regulatory Model” of, or "Pathological Perspective” on, the Civil-Criminal Distinction, 7 J. Con-temp. Legal Issues 199 at n.64 (1996) (the departure taken from existing law by Michigan v. Bennis, 116 S. Ct. 1560 (1996) and Ursery is mistaken).
See Andrew L. Subin, The Double Jeopardy Implications of In Rem Forfeiture of Crime-Related Property: The Gradual Realization of a Constitutional Violation, 19 Seattle U. L. Rev. 253, 262 (Winter 1996) ("A nominally civil sanction, an in rem forfeiture, or a tax, [or a license probation] is punitive unless it serves a solely remedial purpose.”)
