State v. NicholsState v. Nichols
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- Before:
- Carruth
OPINION
JAMES C. CARRUTH, Superior Court Judge. *
The State of Arizona seeks special action relief from the Superior Court’s order granting real party in interest Michael Layne special action relief from the Tucson City Court’s denial of his motion to dismiss a charge of driving while under the influence of alcohol (DUI). The superior court concluded that the DUI proceeding subjected Layne to double jeopardy in light of the prior suspension of his license under
FACTS AND PROCEDURAL BACKGROUND
Layne was arrested for DUI in August 1990. Two breath tests were administered, the results of which showed that Layne had a blood alcohol content (BAC) of either .123% or .118%. His driver’s license was therefore automatically suspended for 90 days pursuant to
Layne requested and received an administrative hearing, after which the suspension of his license was sustained. He then moved to dismiss the DUI charge in Tucson City Court, claiming the proceeding violated his right against double jeopardy as he had already been prosecuted and punished for the same conduct. The motion was denied. Layne then sought and was granted special action relief in superior court. In reversing the city court, the superior court concluded that it was bound by this court’s decision in Taylor v. Sherrill, 166 Ariz. 359, 802 P.2d 1058 (App.1990). This special action followed.
The issue presented is whether the double jeopardy clause of the Fifth Amendment of the United States Constitution bars a criminal prosecution for DUI against one whose driver’s license has been suspended under
LICENSE SUSPENSION PROCEEDINGS UNDER
In
North Carolina v. Pearce,
395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656, 664-65 (1969), the Supreme Court held that the double jeopardy clause of the Fifth Amendment to the United States Constitution “protects against a second prosecution for the same offense after acquittal . . . a second prosecution for the same offense
[T]he Double Jeopardy Clause bars any subsequent prosecution in which the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted____
We do not believe that the automatic suspension of the driver’s license of a person whose blood or breath alcohol concentration is determined to be .10 percent or greater under
Based on Pearce and Grady, we believe that a prosecution for double jeopardy purposes is a judicial proceeding initiated on behalf of the state by officers charged with the enforcement of the state’s penal laws, seeking the conviction and punishment of persons alleged to have committed a criminal offense. 1
In
Campbell v. Superior Court,
106 Ariz. 542, 550, 479 P.2d 685, 693 (1971), our supreme court upheld the constitutionality of
An accused who refuses a blood test is not required to post bond for his appearance, and he does not have to give bail or enter into a recognizance. He is under no legal duty to appear at the hearing if he does not desire to introduce evidence of the basis and reasonableness of his refusal. He cannot be fined or imprisoned either for his refusal to take the test, or for his failure to appear at a hearing. In fact there is nothing about the entire proceeding that parallels the procedure in a criminal prosecution.
106 Ariz. at 550, 479 P.2d at 693, citing Deaner v. Commonwealth, 210 Va. 285, 170 S.E.2d 199 (1969).
The reasoning of this court’s recent decision in Mullet v. Miller, 168 Ariz. 594, 816 P.2d 251 (Ct.App.1991), is applicable here. In Mullet, we held that a proceeding before the corporation commission regarding the alleged offer or sale of unregistered securities and violation of various antifraud statutes was not a prosecution for double jeopardy purposes. We found that administrative proceedings generally are not prosecutions, notwithstanding the fact that the administrative proceeding may even result in a loss of liberty. At 597, 816 P.2d at 254, citing United States v. Rising, 867 F.2d 1255 (10th Cir.1989); Alex v. State of Alaska, 484 P.2d 677 (Alaska 1971); Larkin v. State of Florida, 558 So.2d 486 (Fla.App.1990); Epps v. Board of Probation and Parole, 129 Pa.Commw. 240, 565 A.2d 214 (1989). Specifically, we held that we did “not believe that it was the intent of the Supreme Court in Grady to extend the protection against double jeopardy to nonjudicial proceedings by an administrative body charged with regulating business.” 168 Ariz. at 597, 816 P.2d at 254. Similarly, we do not believe it was the Supreme Court’s intention to extend the protection to administrative proceedings before the Department of Transportation.
We note that there are numerous other administrative bodies in this state that are responsible for regulating areas of business, government, and professions. If proceedings before such bodies were to be considered prosecutions for double jeopardy purposes, the consequences would be anomalous. For example, a proceeding be
AUTOMATIC LICENSE SUSPENSION UNDER
As we noted in
Mullet,
finding that a proceeding is not a prosecution “does not end the double jeopardy inquiry.” At 597, 816 P.2d at 254. We must also determine whether the 90-day license suspension under
The notion of punishment, as we commonly understand it, cuts across the division between the civil and the criminal law, and for the purposes of assessing whether a given sanction constitutes multiple punishment barred by the Double Jeopardy Clause, we must follow the notion where it leads____ To that end, the determination whether a given civil sanction constitutes punishment in the relevant sense requires a particularized assessment of the penalty imposed and the purposes that the penalty may fairly be said to serve. Simply put, a civil as well as a criminal sanction constitutes punishment when the sanction as applied in the individual case serves the goals of punishment [retribution and deterrence]____ [A] civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can be explained only 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.
490 U.S. at 448-49, 109 S.Ct. at 1901-02, 104 L.Ed.2d at 501-02 (citations omitted, emphasis added).
Layne interprets Halper to stand for the proposition that if the purpose of a statute is not solely remedial but also punitive, that is, serves retributive or deterrent purposes, it results in punishment within the meaning of the double jeopardy clause. We disagree. We believe that in the quoted portion of Halper, the Court intended to include those statutes which can only be explained as serving the purposes of punishment as well as remedial purposes. As the state points out, in an important footnote the Court in Halper states that “[t]his is not to say that whether a sanction constitutes punishment must be determined from the defendant‘s perspective. On the contrary, our cases have acknowledged that for the defendant even remedial sanctions carry the sting of punishment.” 490 U.S. at 447 n. 7, 109 S.Ct. at 1901 n. 7, 104 L.Ed.2d at 501 n. 7. Thus, the fact that a statute designed primarily to serve remedial purposes incidentally serves the purposes of punishment as well does not mean that the statute results in punishment for double jeopardy purposes.
In
Heddan v. Dirkswager,
336 N.W.2d 54, 57 (Minn.1983), the supreme court of
In arguing that
In an analogous case, the supreme court held in
Loughran v. Superior Court,
145 Ariz. 56, 58, 699 P.2d 1287, 1289 (1985), that the suspension of the license of an individual found guilty of two DUI’s within 24 months “is not a criminal penalty to punish the driver but a civil and administrative remedy to protect the public from the impaired driver____ The purpose of the revocation is to protect the public and not to punish the licensee.” We acknowledge that
The result reached here is not inconsistent with this court’s decision in
Taylor v. Sherrill, supra.
In
Taylor,
we found that default judgments for civil traffic violations for unsafe turning and speeding placed the defendant in jeopardy and therefore precluded a subsequent criminal prosecution for aggravated assault and criminal damage arising out of the same conduct. This court determined that “[t]he sanctions that flow from violating the speeding and unsafe turning laws are clearly intended to deter the offender and other drivers from committing such infractions and to promote retribution.” 166 Ariz. at 363, 802 P.2d at 1062. We added that when a driver accumulates a certain number of such violations, suspension or revocation of the driver’s license may result. This consequence, we said, could “hardly be characterized as remedial.”
Id.
This language was obiter dictum, which we now disavow. We ac
We conclude that Layne’s double jeopardy rights are not violated by prosecuting him for driving while under the influence of alcohol under
Notes
A Judge of the Pima County Superior Court authorized and assigned to sit as a Judge on the Court of Appeals, Division Two, pursuant to Arizona Supreme Court Order filed July 25, 1990.
. This definition includes proceedings under the state’s traffic laws, notwithstanding the fact that such proceedings are characterized as civil. Civil traffic offenses were traditionally criminal and the consequences of violating traffic laws are primarily punitive. See Taylor v. Sherrill, supra.
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