Thompson v. State, 229 Ga. App. 526

Blackburn, Judge.

King C. Thоmpson appeals the trial court’s denial of his plea in bar based upon double jeopardy, contending that the $200 rеstoration fee is punitive. 1 Pursuant to OCGA § 40-5-67, Thompson’s driver’s license was suspended for one year after he was arrested for DUI and a subsеquent breath test indicated he had an alcohol concentration of .10 or above. In order to reinstate his driving privilegеs, Thompson complied with OCGA § 40-5-67.2 (a) (1) by submitting proof of completion of a DUI alcohol or drug use risk reduction program approved by the Department of Human Resources and paying the $200 restoration fee. Thompson contends that the $200 fee he paid in order to have his driver’s license reinstated was punishment for the same conduct for which he is now being criminally proseсuted. Thompson argues that the restoration fee cannot be characterized as a remedial measure and must bе considered punitive in nature. However, because the fee for the restoration of his driving privilege was not a fine and wаs not required to be paid, but was rather a voluntary payment, it cannot be considered punitive or a sanction, and therefore, we need not reach Thompson’s argument.

“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 Georgia Constitution also contains a double jeopardy clause which provides that ‘(n)o person shall be put in jeoрardy of life or liberty more than once for the same offense.’ Ga. Const. 1983, Art. I, Sec. I, Par. XVIII. Further, OCGA §§ 16-1-6, 16-1-7, and 16-1-8 also provide limitations on multiple prosecutions, convictions, and punishments for the same criminal conduct.” Nolen v. State, 218 Ga. App. 819, 820 (463 SE2d 504) (1995).

In Nolen, we determined that neither a driver’s license suspension hearing nor the actual suspension of a driver’s license constituted a bar to criminal prosecution for DUI. We found that the suspension of a driver’s license “ ‘is actually the revocation of a privilege voluntarily granted, a traditionаl attribute of a remedial action.’ ” Id. at 822. We held that “[i]n Georgia, a driver’s license is not an absolute right but rather is a privilege thаt may be revoked for cause. The right to continue the operation and to keep the license to drive is dependent upon the manner in which the licensee exercises this right. The right is not absolute, but is a privilege. While it cannot be revoked withоut reason, it can be constitutionally revoked or suspended for any cause having to do with public safety.” (Punctuation omitted.) Id.

“Double jeopardy protects against three types of abuses: (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.” Id. at 820, citing North Carolina v. Pearce, 395 U. S. 711, 717 (89 SC 2072, 23 LE2d 656) (1969). See also Moser v. Richmond County Bd. of Commrs., 263 Ga. 63 (428 SE2d 71) (1993). As we have previously held that the suspension of a driver’s license is not a punishment implicating dоuble jeopardy concerns, Thompson’s argument that the fee he voluntarily paid to have his driving privileges reinstated cоnstitutes such punishment is somewhat weakened.

Thompson cites State v. Logan, 663 NE2d 425 (Ohio Co. Ct. 1995), in which an Ohio county court determined that the $250 fee charged by the Bureau of Motor Vehicles to have a driver’s license reinstated was punishment for purposes of double jeopardy. Therein, withоut citation to authority, the court stated that it had “previously held that the $250 reinstatement fee charged . . . has no rational relationship whatsoever to the remedial aspects of the implied consent statute. Thus, this court has already ruled that the $250 reinstatement fee is a punishment and any requirement to pay the $250 by the Bureáu of Motor Vehicles is unconstitutional and violatеs the Double Jeopardy Clauses.” Logan, 663 NE2d at 429. We are neither bound by an Ohio county court’s interpretation of an Ohio statute, nor arе we persuaded by the Ohio court’s ‍‌‌‌‌​​‌‌‌​​​‌​​​‌‌​‌​​​‌‌​‌​​‌‌​​​​‌‌​​​‌‌​​‌‌‌‌‍cursory treatment of this issue.

Thompson further relies upon the analysis in S. A. Healy Co. v. Occupational Safety &c. Comm., 96 F3d 906 (7th Cir. 1996) wherein the court determined that the assessment of an administrative penalty in a civil case after criminal fines were imposed for the same safety violations was a second punishment forbidden by the double jeopardy clause. However, the civil penalties addressed therein are substantially different from a fee voluntarily paid to obtain a privilege. S. A. Healy Company was required to pay the civil penalties assessed against it or face more serious penalties and fines. In the present case, however, Thompson was not required to рay the reinstatement fee. No state, civil, or administrative action would be taken against Thompson if he chose not tо reinstate his driving privileges. Therefore, we find that S. A. Healy does not support Thompson’s position.

For similar reasons, we also find that neither United States v. Halper, 490 U. S. 435 (109 SC 1892, 104 LE2d 487) (1989) nor Dept. of Revenue of Montana v. Kurth Ranch, 511 U. S. 767 (114 SC 1937, 128 LE2d 767) (1994) is controlling in the instant case. In Halper, the United States Supreme Court determined that the imposition of a civil penalty which bore no rational relation to the government’s loss violated double jeopardy after a criminal conviction for the same act. The Supreme Court held that, for purposes of double jeopardy, a civil sanction may constitute punishment if it can only be described as punitive. Id. In Kurth Ranch, the Supreme Court determined that the assessment оf a tax on possession and storage of dangerous drugs, in a proceeding separate from the ‍‌‌‌‌​​‌‌‌​​​‌​​​‌‌​‌​​​‌‌​‌​​‌‌​​​​‌‌​​​‌‌​​‌‌‌‌‍criminal proseсution on drug charges violated the Fifth Amendment’s double jeopardy clause. Unlike the present case, however, in both Halper and Kurth Ranch, the defendants were required to pay the penalty or tax or face the imposition of more severe penalties.

The State clearly had the authority to revoke Thompson’s driving privileges as a remedial measure, without implication of his Fifth Amеndment rights. See Nolen, supra. Therefore, it follows that the State can revoke such privileges subject to his ability to reinstate samе upon certain conditions. We are not dealing with a civil sanction. Thompson’s actions in reinstating his driver’s license were рurely voluntary; therefore, Thompson’s payment of the fee to restore his driving privileges cannot be seen as any punishmеnt inflicted upon him by the State. The trial court did not err in denying Thompson’s plea in bar based upon double jeopardy.

Judgment affirmed.

Andrews, C. J., McMurray, R J., Birdsong, P. J., Pope, P. J., ‍‌‌‌‌​​‌‌‌​​​‌​​​‌‌​‌​​​‌‌​‌​​‌‌​​​​‌‌​​​‌‌​​‌‌‌‌‍Beasley, Johnson, Smith, Ruffin and Eldridge, JJ, concur. Decided November 24, 1997 Robert W. Chestney, for appellant. Ralph T Bowden, Jr., Solicitor, W. Cliff Howard, Eleanor L. Barnwell, Assistant Solicitors, for appellee.

Notes

1

This case has been decided by the whole court pursuant to OCGA § 15-3-1 (c) (2).

Case Details

Case Name: Thompson v. State

Court Name: Court of Appeals of Georgia

Date Published: Nov 24, 1997

Citations: 229 Ga. App. 526; 494 S.E.2d 306; 97 Fulton County D. Rep. 4447; 1997 Ga. App. LEXIS 1452; A97A1839

Docket Number: A97A1839

Court Abbreviation: Ga. Ct. App.