State v. Young

liable OPS was whether determining of care standard wrong issue, we reverse the judgment On that McIntosh’s injury. for to the district court remand the cause court and the trial this opinion. in accordance with further proceedings part part, reversed Affirmed WITH DIRECTIONS. AND REMANDED Philip M. Young, Nebraska, appellee, v. State appellant. N.W.2d S-94-495. March 1996. No.

Filed Schaefer, Schaefer, James E. & Gallup for appellant. General, Don Stenberg, Attorney and Kimberly A. Klein for appellee.

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

Per Curiam. M. Philip was Young arrested for a motor vehicle driving while under the influence of (DUI), alcohol in violation of Neb. Rev. Stat. (Cum. 39-669.07 1992) (now § Supp. codified at 60-6,196 Neb. Rev. Stat. (Reissue 1993)). § was Young convicted of that offense by a jury the Douglas County Court. On appeal, district court for Douglas County affirmed the conviction. The Nebraska Court of in turn Appeals affirmed the district court. State v. 3 Neb. Young, App. (1995). N.W.2d 269 We affirm. was arrested

Young at his home on suspicion DUI on April 16, 1993, following confrontation with another motorist. arrived, When the. officer arresting had Young already parked his car in his garage allegedly had been inside his drinking home. The officer arresting administered a field test sobriety failed the Young; test. The Young officer then took to the Young test. Intoxilyzer he administered station where police .10, level excess breath alcohol registered Because Young’s DUI. The a citation for officer issued Young the arresting license pursuant driver’s Young’s officer also impounded 1992) (now (Cum. codified Supp. Neb. Rev. Stat. 39-669.15 § 60-6,205 (Reissue 1993)), which provides Rev. Stat. at Neb. § (ALR) in addition to license revocation for administrative and sentencing. criminal prosecution with the of Motor for a hearing Department Youngpetitioned evidence that he was Vehicles. At his Young presented hearing, at the time that he was intoxicated. his vehicle operating the director of the Department Persuaded by Young’s showing, Vehicles restored license. then Young’s of Motor Young to defend county County before the court for appeared Douglas the criminal DUI moved to dismiss charge. Young against for DUI his prosecution charge, arguing following violated the exoneration at the Double hearing and the Fifth Amendment Clause of the Nebraska Constitution Alternatively, to the U.S. Constitution. Young argued of collateral bar the State from principles estoppel relitigating in claim court after on the merits at the county losing administrative level. The Court denied County Douglas Young’s conviction, motion. his the same issues Young appeals raising in this court. that, ALR first asserts that constitutes and

Young punishment such, the Double Clause of the Fifth Jeopardy Amendment bars criminal and prosecution punishment following This from stems the of hearing. argument question whether a sanction such as ALR is in remedial or punitive raised the U.S. Court in United States v. purpose, by Supreme 490 U.S. 104 L. Ed. 2d 487 Halper, (1989). Under a statute whose Halper, Young’s interpretation is must constitute purpose partially punitive necessarily the of the Double punishment, thereby protections triggering Clause. Jeopardy the

This of error must fail on basis of our own assignment State, in ante recent decision Hansen v. N.W.2d p. (1996). in the of ALR is to We found Hansen that the from the health and hazards of drunk safety protect public DUI offenders off the At the by quickly road. driving getting time, same the ALR also further a statutes of deterring Hansen, drunk. other Nebraskans from These driving supra. do offend the in dual not Court’s purposes holding that “under the Double a defendant Clause in already punished who has been a criminal prosecution may additional subjected not be to an civil sanction to the extent that remedial, may the second sanction not be characterized fairly but as a deterrent or retribution.” 490 at U.S. 448-49. The fact that a statute to serve remedial designed primarily secondarily serves the purposes exemplary purpose general deterrence does not a conclusion that the require statute results for double jeopardy purposes. supra. found Since we ALR to serve primarily remedial the purpose, prohibition punishments enunciated in multiple Halper does case. This apply Young’s error fails. assignment second Young’s at argument predicated upon his success the ALR the ALR hearing. Youngpersuaded officer that hearing he achieved statutory had intoxication level safety in the of his home five or six from a “chugging” shots vessel of whiskey spare the moments between his arrival at home and the arrival of the officer. arresting Young complains his claim, trial criminal constituted of a settled relitigation and he argues doctrine collateral bars such estoppel by the State. relitigation

Collateral arises in a criminal with estoppel case (1) existence of four conditions: the identical issue was decided action, in a (2) that prior action resulted in a valid final merits, on (3) judgment party against whom the rule is action, was or in applied party privity with a party to the prior (4) had parties opportunity fully fairly litigate Gerdes, in the issue action. prior State v. 233 Neb. 224 (1989). N.W.2d In on collateral relying relation estoppel to the constitutional double protection against in a jeopardy present a criminal defendant proceeding, has the burden to that the issue prove particular which the State seeks to relitigate necessarily was and conclusively determined the in prior Id. proceeding.

[543] Gerdes, Under must issue show that the of whether he Young vehicle under was motor the influence of alcohol operating was determined at his ALR and that his ALR hearing hearing as a judicial We that the ALR operates proceeding. acknowledge officer had the found that car before he hearing Young parked however, That cannot the began drinking. finding, deprive court county of its to hear criminal jurisdiction Young’s charges. The constitutional basis for collateral in a estoppel criminal is founded case on the that the Double principle Clause prohibits multiple prosecutions multiple Swenson, 436, 1189, Ashe punishments. v. 397 U.S. 25 L. Ed. 2d (1970). 469 Because we held supra, ALR does not amount to punishment, has no Young constitutional basis for his collateral The estoppel challenge. absence of double the jeopardy exposure forecloses application collateral the State estoppel in its against prosecution DUI an ALR after because remedial sanctions hearing could have been imposed at that civil traffic See State v. proceeding. 79 Haw. P.2d Higa, (1995). 928 Furthermore, doctrines collateral estoppel and res are judicata not when the applicable burden persuasion Yelli, different v. subsequent proceeding. State Neb. (1995). 530 N.W.2d 250 In an hearing, State establishes its facie case for prima license revocation by submitting officer’s The burden arresting report. of proof motorist, thereafter rests solely with who must show by a preponderance evidence that the for ALR requirements Conrad, are satisfied. v. McPherrin 248 Neb. (1995).

N.W.2d 498 the burden in the Conversely, criminal State, rests with the proceeding solely which must prove beyond a reasonable doubt element every of the charged offense. State v. McHenry, (1995). Neb. N.W.2d 620 Yelli, In we supra, applied this to find that reasoning in a civil judgment action is not under paternity binding doctrines of res judicata collateral in a estoppel subsequent criminal prosecution for criminal of children. The nonsupport difference in same burdens constitutes the fatal flaw Young’s preclusion arguments. process by which the issue of intoxication Young’s adjudicated was in the civil action cannot a new and different burden at on the basis of be reconstructed Yelli, See Given that the more serious the criminal trial. supra. at stake in a civil issues of criminal or innocence are not guilt the difference in burdens also administrative proceeding, lacked a full and fair to opportunity indicates that the State v. case in the ALR See State Young hearing. its litigate against (N.M. 1992). P.2d 113 N.M. Bishop, App. Were we to for we would grant Young’s plea preclusion, not our own of collateral but only precedent violate estoppel, also policy degree separation sound reasons for leaving ALR between civil and criminal DUI hearing prosecutions. Were this court to force State to litigate every thoroughly at an ALR element of DUI such a would hearing, holding undermine the seriously Legislature’s goal providing informal and review of the prompt decision to suspend driver’s license. See would Bishop, supra. hearings evolve into full-blown quickly trials at which the State must actions, issue fully every a motorist’s litigate possible regarding thereby their effectiveness in losing removing potentially from the dangerous drivers Nebraska within 1 month highways of their offense.

Because Nebraska’s ALR serve remedial proceedings mostly functions, criminal Young’s subsequent is not prosecution or, barred by of double principles jeopardy accordingly, collateral principles estoppel. of. Affirmed. J.,

Connolly, concurring. I concur in result reached but by majority, write to address issues separately by raised the dissent. The dissent the U.S. ignores Court’s in Supreme United States v. holding 490 U.S. Halper, 104 L. Ed. 2d 487 (1989); rebukes the court majority this the U.S. ignoring Court; mischaracterizes the holding Hansen, opinion State v. ante p. 542 N.W.2d 424 (1996); and misconstrues the courts from holdings appellate other I jurisdictions. am Consequently, compelled respond. case,

The issue in this as in presented is best articulated by Court which Halper, stated: “[T]he sanction, we face question whether a today [is]: civil be may so divorced from that it application, goal constitutes for the of double ‘punishment’ jeopardy at went on analysis.” 490 U.S. 443. Court provide from which to resolve this issue general principle stating:

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

(Emphasis supplied.) U.S. 448-49. Hansen, After applying Halper’s to the facts of holding court supra, this found that substantial remedial purposes underlie Nebraska’s ALR statutes and concluded that its remedial primary character was not defeated the by fact that the statutes also play a role in secondary others from deterring result, drunk. As a driving we held that “the Double Jeopardy Clauses of the U.S. Nebraska Constitutions do not bar a motorist prosecuting for DUI after the motorist’s driver’s revoked, license been has administratively because such revocation does not subject the offender to multiple punishment for the same offense.” ante at 542 N.W.2d at 435.

Despite Halper’s clear holding, the dissent focuses on a seemingly inconsistent within that which passage opinion states “a civil sanction that cannot be said fairly solely to serve a but rather can purpose, only be as also explained either serving retributive or deterrent is purposes, punishment, as we have come to understand the term.” 490 U.S. at 448. The dissent asserts that this is the of passage holding Halper and that the of majority this court the U.S. ignored Supreme Court. I find such assertions in of the fact troubling that the light the language majority followed as was precedent deemed the the “holding” by (“We Court. therefore hold . .” Halper Id.) . . (6th Black’s 1990) Law Dictionary ed. defines “holding” to be legal principle drawn from the (decision) “[t]he opinion of the court. of Opposite dictum . ...” It is duty this Court, court to follow the holdings U.S. which in this out, authority only legal “the is, dissent points as the Thus, if “selective any court.” bind this empowered nation Court has U.S. Supreme ignoring strategic or reading” occurred, majority. done by it was reading selective that on to state goes “[t]he

The dissent had accept easier to be might by endorsed of which the question not resolved Court U.S. Supreme States, United in Austin v. correct interpretation (1993).” L. Ed. 2d 488 S. Ct. U.S. 509 However, to be that opinion not proclaim Court did the Austin Instead, it merely applied reversal of Halper. or a modification fact, In context. the civil forfeiture dictum to Halper’s were Austin’s language that applied the dissent cited cases date, has not this court As of this context. civil forfeiture forfeitures civil determine whether had the opportunity In double jeopardy. purposes constitute punishment instant case. event, in the is not question that issue Poritz, 142 N.J. Doe v. the dissent cites Interestingly, deterrent (1995), alleged a case “considering A.2d 367 [the] notification community offender registration of sex impact statutes,” Halper’s “Austin clarifies for the proposition However, in in civil sanctions.” purposes of punitive prohibition found: the court Poritz initially . . . based on the language

The contention deterrent the slightest that even Halper, appeared not, the or whether whether intended consequence, not, or of remedial provisions consequence inevitable involved “punishment” or the sanction renders the statute a careful of by reading language out either is not borne the issue. of analysis or by judicial relied on Furthermore, by is not supported the contention of where the claim punishment in various cases outcome obvious deterrent impact. some rejected despite A.2d at 397. 142 N.J. at 662 supplied.) (Emphasis Thus, not stand for that does it is obvious Poritz as the dissent Austin is a clarification of that proposition to significant support the contrary, provides claims. To Poritz Hansen, (1996). One of 542 N.W.2d ante p. State v. court was by Department referred to the cases Poritz of _, Ranch, __ U.S. S. v. Kurth Revenue Montana Ranch, (1994). In Kurth a case L. Ed. 2d 767 Ct. Austin, tax the Court found the drug after decided however, it excessive and thus punishment; to be imposed sanctions could nonpunitive that other acknowledged types (“We that by include deterrent aspects. begin noting legitimately taxation nor an obvious deterrent purpose neither a rate of high marks this tax a form of automatically punishment.” tax deterrent lend at 1946. “While a rate and high purpose to the characterization of the tax as drug punishment, support features, themselves, in and of do not render necessarily these 1947.) Id. at the tax punitive.” (Emphasis supplied.) Kurth Ranch in its dissent does not mention opinion because it refutes the dissent’s that Austin was a position clarification of If Austin was intended to be Halper. applicable context, the Court outside forfeiture would not have stated in Kurth Ranch that an deterrent obvious subsequently mark a civil automatically does not sanction a form of punishment.

The dissent mischaracterizes the Hansen holding case, in Hansen and this other asserting among “[t]he it jurisdictions, adopted [holding Halper] interpreted nature, mean civil sanction must be deterrent in aims, any lacking qualify punishment.” The dissent that the majority implies interpreted Halper mean if that even a statute has a it primary punitive purpose, would not for of double qualify punishment purposes so as it has a secondary remedial jeopardy long purpose. However, Hansen, fact that a we held “the statute designed to serve remedial serves the primarily purposes secondarily deterrence as well does not exemplary purpose general necessitate the conclusion that the statute results in punishment for double ante at purposes.” jeopardy at If in fact the sanction had a N.W.2d 434. primary punitive then it would constitute purpose, clearly of double jeopardy. purposes that all the courts which find

Finally, the dissent misstates ALR to be remedial deterrent “simply deny did carefully exists in ALR.” It is obvious that the dissent ^[548] these that

analyze opinions. courts have dealt most with this have convincingly problem that the acknowledged revocation of a driver’s license based on the driver’s misconduct Nevertheless, does have a deterrent aspect. these courts have held that administrative license revocations remain “remedial” See, Zerkel, in nature. State v. P.2d (Alaska 900 756 App. 1995) (administrative revocation of driver’s license is remedial even it have a deterrent though may goal may achieve some deterrent effect. would be naive to that the suggest “[I]t did not to deter legislature misconduct when hope it enacted the statutes .... But this deterrent does purpose not mean that administrative revocation of these licenses is ‘punishment’ for Savard, purposes clause”); of the double jeopardy State v. 659 (Me. 1995) (“we A.2d 1268 conclude that any punitive or deterrent served purpose of an suspension operator’s driver’s license an arrest following is merely [DUI] incidental to the intended overriding purpose by the Legislature with provide public safe roadways”); State v. Strong, 56, 61, Vt. (1992) 605 A.2d there (“[although is an element of deterrence to the summary suspension of an license, operator’s this element is present any loss of license or and is not the privilege focus primary statutory [the] Nichols, scheme”); 409, 413, State v. 169 Ariz. 819 P.2d (Ariz. 1991) (“[w]e App. that acknowledge may [ALR] serve an additional punishing violator and perhaps deterring individual as well as other drivers from while believe, however, intoxicated. driving We do not effect, because of this incidental it ‘may not fairly be ” characterized See, as remedial’ also, (citing Halper, supra)). Corr., Butler v. Public Dept. Safety & 609 So. 2d (La. 1992). Likewise, statutes, under our ALR any deterrent purpose served by the revocation of a driver’s license following arrest for DUI is merely secondary to the overriding remedial result, with providing public safe roadways. As a Double Jeopardy Clauses of the U.S. and Nebraska Constitutions do not bar a motorist for prosecuting DUI after the motorist’s driver’s license has been administratively revoked because such revocation does not subject offender for the same offense. multiple punishment White, C.J., dissenting. idea that of double is the jeopardy the

Underlying principle should not be State all its resources and power the with individual to convict an attempts allowed to make repeated offense, him to thereby subjecting for an alleged embarrassment, and him to and ordeal expense compelling and as well anxiety insecurity, live in a state of continuing that even innocent he though the enhancing possibility be found may guilty. 187-88, 221, States, 184, 355

Green v. United U.S. (1957). the State is prohibited 2 L. Ed. 2d 199 Accordingly, individual, punish multiple from repeated attempts Double Clause. are anathematic to the punishments S. Ct. 104 L. v. 490 U.S. United States Halper, (1989). New of American Ed. 2d 487 principles ‘rooted the “deeply have been more constitutionalism ” Illinois, Bartkus v. traditions and conscience our people.’ 121, 155, (1959) S. Ct. 3 L. Ed. 2d 684 359 U.S. J., (Black, dissenting). courts, the of other state majority appellate

In following states is here finds the existence of a consensus of majority consensus Most says. than what that more meaningful Court, the U.S. majority ignores Supreme disturbingly, in this nation to bind this court. authority empowered only legal has made the initial critical error of Because outset, at the all that U.S. Court precedent rejecting N.W.2d 424 in State v. ante p. follows (1996), contrary and the instant case is amendment from that derives. which precedent

HALPER AND AUSTIN prosecution arose from the federal criminal Halper medicare claims. After the trial court sentenced counts of false $5,000, the to 2 and a fine of years government Halper prison under the civil further action instigated against statutes, criminal claims which provided to the false counterpart acknowledged for monetary penalties. Although government it that purposes, argued civil had some penalty punitive that this of the civil sanction precluded concurrent remedial was and that the thus finding “punishment,” precluded penalty Id. scrutiny. double jeopardy

The Court this rejected interpretation “punishment” that rendered a definition of is instructive to this punishment case. The rule court’s task in this from states emerging that a civil sanction constitutes when the sanction punishment Id. at “serves the 448. The Court goals punishment.” elaborated on rule simple by holding this serves the aims of twin retribution and Furthermore, . .

deterrence. . “[r]etribution deterrence are not legitimate nonpunitive governmental . . . From objectives.” these it that a premises, follows civil be said sanction cannot fairly solely to serve but rather can be purpose, as also explained either retributive or deterrent serving purposes, as we have come to understand the term. (Citations omitted.) Id.

This creates a a sanction language simple equation: equals punishment, not a mere “penalty,” when behind the sanction or has a a impedes tendency prevent act— given seeks, when the State this to deter through penalty, its citizens from certain behavior. this Having presented simple equation, however, the Court then obscured that Halper simplicity by in the writing following “under the Double paragraph Clause, a defendant already who has been in punished a criminal prosecution may subjected be to an additional civil sanction to the extent that the second sanction may not remedial, be fairly characterized as only but as a deterrent or retribution.” at Many 490 U.S. jurisdictions, 448-49. including court, this have taken the apparent incongruity as an invitation to read Halper selectively, the simple rejecting equation and See, whence it derives in language favor of this latter language. Com., e.g., Tench v. 21 supra; Va. App. Hanson, S.E.2d (1995); State v. (Minn. N.W.2d 598 1995). App.

In ALR, the analysis of punitive elements a court’s choice from is language Halper critical. The majority in Hansen case, this other jurisdictions, among adopted the latter language it to mean interpreted that a civil sanction must be only nature, aims, deterrent in lacking any qualify the former punishment. Conversely, which Halper language, sanctions requires “solely to serve a remedial purpose,” indicates that a civil sanction must be remedial to avoid characterization as One shields punishment. from interpretation double jeopardy scmtiny an ALR sanction whose purposes deterrence; include the other focuses on interpretation scrutiny punishment where punishment even if it in appears, appears tandem with a remedial purpose.

The selective endorsed reading Halper be might easier to had accept the U.S. Supreme Court not resolved the of which question interpretation Halper States, correct in Austin v. United 509 U.S.

2801, 125 L. (1993). Ed. 2d 488 The Halper language requiring a “solely . . . remedial Austin, purpose” appears in —twice—in to the response government’s claim that because a statutory rem civil deter, forfeiture did not solely seek to but also furthered a remedial it Austin, was not purpose, punishment. 113 S. Ct. at 2806 and 2812. Significantly, from language seems to require solely deterrent in order double trigger jeopardy protection does not appear Austin. “ More significantly, quoting language requiring ‘solely ” . . . remedial purpose,’ Austin Court deliberately emphasized the word “solely,” even further clarifying Austin, Court’s intent in Halper. 509 U.S. at 621. ALR,

Beyond the context of courts have found no difficulty in reading and Austin such together, that Austin clarifies Halper’s prohibition punitive See, in civil purposes sanctions. U.S. v. 59 F.3d Ursery, (6th 1995) Cir. civil (finding forfeiture to Poritz, qualify punishment); Doe v. 142 N.J. 662 (1995) A.2d 367 (considering alleged deterrent impact of sex offender registration and community statutes); notification $405,089.23 U.S. v. U.S. 33 Currency, (9th F.3d 1210 Cir. 1994) whether civil (determining forfeiture to pursuant money statutes laundering qualifies punishment), amended 56 op. (9th F.3d 41 1995); DeVille, Cir. State v. 1979 Cadillac 632 So. (La. 2d 1221 1994) App. civil forfeiture (finding to pursuant drag conviction to qualify punishment).

[552] however, ALR, to have refused courts the context of Within others, court, among This together. and Halper

read Austin the grounds of Halper clarification its Austin—and rejects —on Fines Clause of the Excessive under was decided that Austin Amendment, under the Double rather than Eighth See, State v. Amendment. e.g., Fifth Clause of the Hanson, Tench, (1996); supra; 542 N.W.2d ante p. Austin why fail to explain courts These supra. analysis, under Halper punishment was decided which analysis, ALR cases. with application is incongruous summarily, stating Austin dismissed in Hansen majority “Austin, . decided upon Eighth was . . which that Clause inapplicable Fines’ ‘Excessive [is] Amendment’s have at 430. Other courts 542 N.W.2d Ante at case.” [this] the reach of Halper. in considering Austin altogether ignored See, 530 N.W.2d 269 3 Neb. Young, App. State v. e.g., Funke, (Iowa 1995); State v. 531 N.W.2d (1995); State v. Indeed, fails (1995). the State P.2d 928 Haw. Higa, brief, much and Austin in its mention Halper to even altogether to our consideration. Austin is why inapposite less explain of U.S. Supreme this selective reading I not assent to will of other majority aby This court is bound Court holdings. and by guidance but only precedent jurisdictions, Yet, has dismissed cavalierly U.S. Court. Supreme Austin holding “punishment” the U.S. Court’s the Fifth and under Amendment “punishment” under the Eighth In constitutional ideals. so are defined the same Amendment the facts both Halper the majority disregards doing, both Halper seek a definition “punishment”; Austin much a deterrent permissible how Austin consider remedial sanction becomes ostensibly “punishment”; before under that the correct inquiry and the Austin Court found and one forfeiture serves in part punish, “is whether that forfeiture serves other not exclude the possibility need conclusion,” (emphasis original) to reach that purposes n.12. U.S. at 619 limit the the Fifth and Amendments

Because both Eighth citizens, its what the Constitution to punish government’s power under one amendment cannot as “punishment” prohibits under be another. Austin and permissible logically Halper define as the “punishment” threshold for the inquiries we must amendments each case concerns: first know respective what we can whether a “punishment” is before assess particular is, Amendment, sanction virtue Fifth or Eighth of against the mandates of the Bill The imposed Rights. however, makes the majority, same artificial distinction of Austin from other state have that courts made in order Halper to circumvent rule that Halper’s sanctions deterrent-purpose “punishment.” only The fair of Austin equal counsels reading Austin together resolve the Halper “punishment” issue with respect to civil sanctions. To conclude otherwise effectively invalidates the Double Clause by allowing multiple punishments for same conduct merely because the Hudson, also serve remedial punishments U.S. v. purposes. (10th 1994). F.3d 536 Cir. is the governing language Halper language “ Austin, ‘a sanction

emphasized stating civil that cannot be said to serve a fairly solely remedial but rather can purpose, be as also either explained retributive or serving deterrent Austin, ....’” U.S. at purposes, 610. Even Austin, absent the ultimate result of would demand the Halper same conclusion: the Court remanded case to the trial Halper’s with court instructions to ascertain much how of the civil exceeded what was penalty necessary compensate the and to eliminate the. government, excess not a serving but an purpose, improper punitive purpose. The Court’s instruction in should our guide determination of whether ALR in Nebraska serves as the first of an impermissible punishments two for one offense.

CHARACTERISTICS OF “PUNISHMENT” provided procedural framework for this court, determination: a burdened with the task reviewing whether civil sanction determining qualifies punishment, must “a perform assessment of the particularized penalty that the be imposed purposes penalty may fairly said to serve.” at Halper, 490 U.S. 448. The Court ruled that a civil should bear a “rational relation” to the penalty goal claimed and should not malady, remedying government’s in the meaning as ‘punishment’ plain “[appear] qualify is instructive to the word.” U.S. at 449. This language like a the true looks more of whether question like or more remedy punishment. Purpose Remedial 39-669,15 (Cum. Stat.

The State that Neb. Rev. argued § 60-6,205 1992) (now codified at Neb. Rev. Stat. Supp. § and that (Reissue 1993)) any remedial partially purpose at to an of element rises worst punitive acceptable “sting the U.S. at by described Court. 490 punishment” that “for the defendant even remedial sanctions n.7 (noting In the the of carry sting punishment”). tolerating punitive ALR, the confuses the distinction made by of purpose a violates double the Court: punitive purpose jeopardy, whereas a or inevitable does “sting” punitive impact punitive not. In whether carries a or punitive “sting” determining motorist, rather with a of the we are operates purpose punishing of what by properly guided. Halper"s question purpose be said ... to may “fairly sanction serve.” The Court of New this Supreme Jersey applied analysis Poritz, (1995), I Doe v. 142 N.J. 662 A.2d 367 which cite a truly of to be contrasted example remedy Poritz, ALR. In a convicted sex offender to against sought enforcement of statutes enjoin requiring registration convicted sex offenders and notification of their community The that these presence. statutes violated the appellant argued Double Clause’s prohibition against multiple The Court of New this punishments. Jersey rejected statutes, and the that the challenge upheld finding legislature had rationally addressed within its and problem competence without intent of The statutes tó a any punishing. responded documented of attacks convicted sex offenders in history by New The state had warned that harassment of known Jersey. any tolerated, sex offenders would not be and had further expressed the clearest words the sole of these statutes was purpose not to This stated was borne out protect, punish. purpose by statutes, the words and which means operation suggested of a community, which a notified of the sex presence offender, could act to its children and families from protect reoffense. Because the statutes focused on the state’s and community, the sanction of responsibility registration as further fairly notification could not have been said serve convicted sex offenders. statutes, In analyzed court upholding degree Poritz Fifth of deterrence or retribution that the Amendment tolerates in a remedial statute. The court never denied that convicted sex offenders would feel if their learned of stigmatized neighbors however, their status. This was the stigma, “sting and not the deliberate of the statute. punishment” “What counts ... is the design statutory its remedial and not provision, goal purposes, resulting consequential impact, ‘sting punishment’ may but inevitably, incidentally, flow from it.” (Emphasis supplied.) Poritz, 142 N.J. at 662 A.2d at 396. court wrote that the Double Jeopardy Clause was Poritz intended to prevent from government its performing functions,

legitimate when “especially regulatory [a statute’s] intent is free totally of concealed suggestion punitive purpose. As the becomes punitive impact more pronounced, however, the balance may shift and the fact of punishment may action, overwhelm the of the purity government’s to it imputing ... a punitive purpose.” N.J. at 662 A.2d at 398. By from distinguishing punitive impact punitive purpose, Poritz court the sex offender distinguished statutes from other statutes whose cannot be limited purpose to remedy.

The intent regulatory of the New sex Jersey offender statutes was consciously free from a deliberate punitive purpose. The same cannot be said of Nebraska’s ALR statutes. The ALR statutes do not reflect the remedial aspects New Jersey sex offender statutes: the focus of ALR the is offender and the crime rather than a general, The deterrent— purpose. and thus of ALR far exceeds the punitive or “sting” —effect incidental that tolerates. The most impact painfully obvious evidence of a in punitive purpose appears introductory (now 60-6,205): of 39-669.15 paragraph § §

Because who drive while under the influence of persons alcohol a hazard to the health and of all present safety a is needed for the persons using highways, procedure swift and certain revocation of the operator’s license of who has shown himself or herself to be a health person safety and hazard with an driving excessive concentration of in alcohol his or her and to deter body others while under the driving alcohol. from influence of (Emphasis supplied.) This is language inescapable. Despite that Halper’s holding “deterrence is not a legitimate nonpunitive 490 U.S. purpose,” at chose to Legislature state the clearest words its intent to deter Nebraskans from drunk. This driving blunt deterrent does not concern the purpose which majority, finds that a deterrent secondary somehow purpose muster passes under The Halper. majority admits the existence of a deterrent in this and in purpose case that supra, holding “[t]he fact that a statute designed primarily serve remedial purposes serves the secondarily of exemplary purpose deterrence general does not require conclusion that the statute results in ” punishment for double jeopardy purposes.

This defies both holding and all reasonable explanation. Common sense tells us that general deterrence is others; achieved by one as an punishing it example cannot be achieved without an instance of deterrence. specific Halper Court never between distinguished general specific deterrence stating any deterrent purpose impermissible. Austin, Even without the clarification of of language Halper allows at most a of “sting punishment,” certainly does not an permit “exemplary of purpose general fact, deterrence.” In not one of the courts that upholds on basis a more restrictive has reading Halper allowed anything resembling “exemplary general deterrence.” Those courts deny simply any deterrent purpose beyond “sting punishment” exists in ALR. As the Nebraska Legislature any other state legislature- —unlike removed all question of a deterrent its wording (now 39-669.15 60-6,205), § § has set forth an that allows a deterrent interpretation Halper unprecedented that stands to purpose very prohibit. thing —the If a remedial sanction can be understood as particular only subjected also then to serving punitive goals, person sanction has been that the sanction is also punished despite Hudson, See, (10th 1994). remedial. 14 F.3d U.S. v. Cir. also, Medicine, Kvitka v. Board 407 Mass. Registration (1990) 551 N.E.2d 915 that remedial (finding purpose offense, convicted of was sanctioning physician, drug overwhelmed by board’s stated desire to disciplinary punish deter to other from in similar physician physicians engaging conduct, thereby double The triggering jeopardy protection). ALR fact that advance a remedial may purpose our clearing roads of drunk drivers cannot the fact negate aimed, also in deliberate Legislature design purpose, deter drunk another means of driving creating punishing drunk drivers.

Not is the deterrent at least in force equal to the stated remedial but a careful purpose, of the ALR reading statutes reveals that weaken the provisions force of the remedial purpose. Notably, as officer a motorist’s arresting impounds hand, license with one he or she issues the immediately motorist a 30-day license temporary with the other hand. 39-669.15(4) (now 60-6,205(4)). Yet the stated § § is to drunk drivers get off the roads

immediately, thereby ostensibly the chance that a reducing motorist will drunk drive between arrest and trial. again value of persuasive this on purpose depends an assumption that a drunk driver poses no DUI threat life during the of the 30-day temporary permit, but that the DUI threat is resurrected when the 30-day period expires and would manifest but for the activation of ALR. The majority does not what explain remedy is furthered by a DUI offender 30 giving more days drive drunk before his license. revoking

The majority states that the correctly temporary permit is necessary motorist’s to due protect as a rights process: interest, driver’s license is a constitutionally it protected cannot See, Burson, be taken without due Bell v. process. U.S. Michalski, (1971); 20 L. Ed. 2d State v. Indeed, (1985). 221 Neb. 377 N.W.2d 510 the stated remedial of forces the State into a goal Hobson’s choice: road, either true the drunk stay to of drivers off the goal getting issue no and violate the motorist’s temporary permit, to right due a process; or issue temporary permit, cast doubts grave the claim that ALR has remedial upon any qualities, trigger double Either this court jeopardy protection. way, must sacrifice a constitutional to a guarantee uphold statute whose remedial is weak and whose indicia of purpose are punitive purpose strong. Legislature’s provision procedural protections does not cancel out the bluntly stated purpose of furthering deterrent in objective violation of plain and the Fifth Amendment. Appearing to as Punishment Qualify

For the to excise its Legislature deterrent from the language statute would not remove deterrent underlying the statute. holds that a civil penalty should bear a rational to the relationship goal what the compensating lost, has and should government not “[appear] to qualify as in ‘punishment’ the plain of the meaning word.” 490 U.S. at 449. Even assuming legitimacy ALR, this still penalty to appears qualify as punishment ways that overwhelm the goal protecting from public drunk drivers. States,

Austin v. United 509 U.S. (1993), L. Ed. 2d 488 in addition to clarifying controlling language Halper, provides list exemplary of characteristics of punishment that shows that ALR indeed appears qualify Austin, In punishment. the U.S. Supreme Court found civil forfeiture under certain federal statutes to qualify as on the “punishment” basis of these characteristics. The Austin, majority’s however, rejection of averted need address those characteristics in its opinion.

The first Austin characteristic is the historical understanding of the sanction in question. The Austin Court considered whether, at the ratified, time the Eighth Amendment was civil forfeiture “was understood at least in part punishment.” 509 U.S. at 610-11. Notably, Court consistently qualified of a historical requirement to be understanding no more than “at least Id. at 610 and That some part.” 619. remedial purposes may have been advanced civil forfeiture not, Court, did for the Austin the fact that forfeiture negate also advanced concurrently punitive purpose.

The U.S. Court’s of historical recognition concurrent remedial and is to ALR punitive purposes important forfeiture, analysis. Unlike ALR as a sanction is not replete with centuries of common-law this court has history. Although found that revocation of a driver’s license under the point system Ress, designed protect v. public, Durfee Neb. (1957), N.W.2d 148 our case law does not address understood, whether ALR is historically at least in as part, punishment. however, Revocation under the point system, is not under question ALR. ALR, DUI

Notwithstanding offenders historically have been subject to revocation through multiple mechanisms: the point and system judicial revocation under statutes DUI. criminalizing Neb. Rev. Stat. 39-669.07(2) (Cum. 1992) (now § Supp. codified at Neb. Rev. Stat. 60-6,196(2) (Reissue 1993)). As § mechanisms, ALR complements both the history judicial revocation is as instructive as that of system point revocation. This court has not distinguished judicial revocation from other instruments of punishment meted out for See, a DUI Seward, conviction. Gembler e.g., v. City Neb. (1939) 285 N.W. 542 city had (finding power to DUI, punish where included revocation). license License revocation for DUI has been imposed historically both to further remedial aims and to punish offender.

The second Austin characteristic is the provision of an innocence defense in the statute for sanction. Such a providing defense serves to “focus the on the provisions of the culpability in a way that makes them [defendant] look more like punishment, not less.” 509 U.S. at 620. This characteristic is relevant to Nebraska’s ALR statutes. A motorist ALR has facing available those only defenses he would raise to or at prior his criminal trial. The motorist circumvents ALR entirely only by at an ALR proving that he did not hearing violate 39-669.07 § (now 60-6,196), or that his arrest § was unlawful for reasons Amendment criminal procedure. to Fourth

relating 60-6,205(6)(c)). 39-669.15(6)(c) (now Once imposed, § § if at his ALR the motorist only prevails terminates prematurely not to Neb. Rev. criminal trial or if the State decides prosecute. 1992) (now at Neb. 39-669.16(4) (Cum. codified Stat. Supp. § 60-6,206(4) (Reissue 1993)). Rev. Stat. § that, in the The Austin Court next to the fact example pointed statutes, had tied forfeiture of the federal forfeiture Congress Similarly, to the commission of certain crimes. directly (now 60-6,205), tied ALR the Legislature 39-669.15 § § DUI. ALR is directly to commission of crime of triggered or, that DUI has been committed if the motorist only by proof test, refhses to submit to a officer’s sobriety arresting reasonable belief that DUI has been committed. 39-669.15 § (now 60-6,205(2) (3)). and The sanction is imposed § arrested, if after the driver has been and its duration lengthens the motorist’s license has been revoked for the same previously (now 60-6,206(1)). crime. That ALR is 39-669.16 § § linked to commission of a misdemeanor under the irrefutably Code, Nebraska Criminal of the by plan design Legislature, that ALR only strengthens argument “appears qualify ” ‘punishment.’ ” from the words “appears qualify ‘punishment’ in more ways statutes than Austin operation First, enumerates as characteristics of ALR can punishment. the sentence from the outlast motorist’s criminal trial. resulting Were the trial to sentence a DUI first offender to judge sentence, or the motorist would incur a probation suspend revocation; ALR would remain in 60-day judicial yet, effect for the full the 90-day period sentence. Were the notwithstanding trial to a DUI sentence second offender to or judge probation sentence, the the motorist would incur a 6-month suspend revocation; ALR would remain in effect for a full judicial yet, Given that the stated of ALR year. is to remove drunk from the road more drivers than the criminal trial swiftly it is difficult to understand how process might, is furthered a motorist off the by keeping road after criminal sentence ends.

Second, ALR limits the motorist’s ability obtain to Neb. employment driving Rev. Stat. privileges pursuant 60-4,130 (Cum. 1992). An is Supp. employment permit § offenses, available to motorist whose license is revoked for drunken enumerated in the including system. driving, point renders statute employment permit inapplicable offenders, DUI without much “remedial” concern showing reviled, for drivers whose habits are less but publicly no less dangerous. Motorists whose licenses have been revoked under violations, point system willful reckless including habitually more than 10 driving, speeding miles hour over per limit, homicide, and speed motor vehicle can obtain an employment permit immediately revocation of their upon driver’s licenses. Neb. 60-4,129(1) (Cum. Rev. Stat. Supp. § 1992). Currently, 60-6,206(2), under a first-time DUI § offender, however, cannot obtain an employment for the permit revocation; offense, first 30 days for any DUI subsequent motorist cannot obtain an at all employment permit (previously under days 39-669.16(2)). §

It is axiomatic that the State should have the same remedial interest swiftly from the removing roads a motorist who revocation, drives recklessly kills times to incur enough or who another as a person result of or grossly reckless negligent as it does in driving, swiftly a first-time removing DUI offender. It is further axiomatic that dangerous speeding reckless are driving committed in transit to and from work more Yet, than is DUI. commonly returns to the Legislature roads all violators of the Nebraska Rules of the Road drunk except drivers.

This can be discrepancy as an explained only to deter attempt Nebraskans from drunk with the threat driving that motorists or, will lose the ability drive to work if their employment license, a valid requires driver’s their livelihoods. The to, from, motorist’s loss of and in transportation the course of is employment particularly beyond Lincoln pernicious counties, Omaha and certainly Nebraska’s more rural where is if not public transportation unavailable. Even largely entirely available, were it public would be of little transportation utility to a farmer or rancher for whom use of a car or truck well be may this sanction While necessity. a

simply practical criminal sentence imposed confines of a within the appropriate sanction ostensibly inclusion in an trial its by judge, a ” to as qualify ‘punishment.’ ALR “[appear] makes absolutely these punitive aspects impact the cumulative Whether or to the costs to either to the offense ALR is disproportionate irrelevant to our is created drunk by driving State to a sanction appears qualify of whether determination the civil in Although Halper, under Halper. “punishment” than the actual costs was much greater imposed sanction fraud, a “proportionality Court did not articulate Halper’s than the if it is greater a sanction is punishment test” which Rather, if it serves a deterrent a is punishment sanction offense. true in and which is true of the fine Halper which was purpose, of ALR. of the punitive aspects determines not whether analysis punishment

Proportionality fact, exists, excessive; in it is proportionality but whether Amendment—the whether the Eighth used to determine under which Austin arose—has been constitutional protection Helm, U.S. See Solem v. violated. that, (1983). Given it is particularly

77 L. Ed. 2d 637 a line of Eighth for the to adopt disingenuous which is to Double analysis Jeopardy Amendment inapposite while clarification analysis, Clause rejecting (which never reached in Austin “punishment” because Austin is an merely Eighth question) proportionality Amendment The U.S. Court case by taxonomy. legal a did not ask whether sanction appears qualify offense, to the but whether it disproportionate punishment ALR, at all. In the case of as punishment appears qualify in the affirmative. should have been answered question unconstitutional se a sentence per There is nothing revocation, or for fines and license lengthy providing that, the Excessive Fines Clause without violating imprisonment ’ Amendment, a make drunk driving prohibitively of the Eighth endeavor, nor in a criminal sentence that denies expensive Nebraska, DUI offender employment permit rural or dependency upon of one’s predilections irrespective sanctions are vehicle for one’s livelihood. When these motor for one as a condition of one singular punishment imposed DUI, the Double would not offend offense of such is unconstitutional se is per Clause. What these deterrent under the provisions auspice of of imposition that can be said to serve the fairly of “remedial sanctions” The clearest of of punishment. holdings Halper, retribution and deterrence by majority, distinguish ignored the former from objectives from nonpunitive prohibit into the latter. creeping offenses, and the

For even the most heinous crimes cruelest concentrate its into a the State must powers effort. Under this court’s interpretation singular punitive the State can deter its citizens from crime by Halper, inviting the State in turn unleash its each concerned agency powers offender, under the such pretext remedy, each upon acting never knows when his debt to society finally that the offender does not stand for the idea that the in full. dissent My paid war drunk but should surrender its against driving, Legislature the Bill of this war must not include casualties Rights. reasons, as well as the reasons articulated

For these State, dissent in Hansen v. ante p. Justice Gerrard his (1996), I dissent. 542 N.W.2d JJ., in this dissent. join and Gerrard,

Fahrnbruch rel. State Bar of Nebraska ex Nebraska State Tay respondent. v. Rex Johnson, Association, relator, 544 N.W.2d 803 1996. No. S-94-1164. Filed March

Case Details

Case Name: State v. Young

Court Name: Nebraska Supreme Court

Date Published: Mar 8, 1996

Citation: 544 N.W.2d 808

Docket Number: S-94-495

Court Abbreviation: Neb.