Ex parte Stacey Stalinsky VOISINET, Appellant, v. The STATE of Texas, Appellee.
No. 1412-95.
Court of Criminal Appeals of Texas, En Banc.
Nov. 27, 1996.
424
Alan Curry, Assist. District Attorney, Houston, Matthew Paul, State‘s Atty., Austin, for the State.
OPINION ON APPELLANT‘S PETITION FOR DISCRETIONARY REVIEW
MANSFIELD, Judge.
On January 1, 1995, a Houston police officer stopped appellant, Stacey Stalinsky Voisinet, for allegеdly driving 51 miles per hour in a 35 miles per hour zone. Appellant submitted to an intoxilizer breath test, the result of which indicated an alcohol concentration of 0.139 grams per 210 liters of breath.
On February 9, 1995, a hearing was held before an administrative law judge of the State Office of Administrative Hearings. Following the hearing, the judge entered findings of fact, which read, in part, that on January 1, 1995,
prоbable cause to arrest the Defendant existed, in that probable cause existed that Defendant was intoxicated while driving or in control of a mоtor vehicle in a public place as demonstrated by Defendant stat-
ed (sic) she drank 4 glasses of wine in addition to failing all field sobriety tests, HGN and heel to toe; smelled alcohol on breath; and Defendant was driving or in control of a motor vehicle ... in a public place ... with an alcohol concentration of 0.139 grams of alcohol per 210 liters of breath.
Appellant‘s license was suspended for sixty days, with said suspension to continue beyond sixty days until she paid $100 to the Texas Department of Public Safety. Appellant paid the $100.
Appellant was charged by information with the offense of driving while intoxicated,
Appellаnt filed a pretrial application for writ of habeas corpus, claiming that, based upon the prior suspension of her driver‘s license, her constitutional double-jeopardy right to be free from multiple punishments for the same offense precluded the State from prosecuting her for the offеnse of driving while intoxicated. The trial court denied appellant‘s application for writ of habeas corpus. The Fourteenth Court of Appeals affirmed, reasoning that the double jeopardy guarantee was not implicated here because a DWI prosecution could not subjeсt appellant to a second “punishment” for the “same offense.” Voisinet v. State, 909 S.W.2d 262 (Tex.App.-Houston [14th Dist.] 1995).
Appellant‘s petition for discretionary review was granted on the following two grounds:
(1) Did the court of appeals err by ruling that the Administrative License Revocation hearing resulting in the suspension of appellant‘s driver‘s license аnd a subsequent prosecution for driving while intoxicated based on the same underlying conduct are not the “same offense” and therefore not subjeсt to the protections of the Double Jeopardy Clause of Article I, Section 14 of the Texas Constitution?
(2) Did the court of appeals err by ruling that the Administrative License Revocation hearing resulting in the suspension of the appellant‘s driver‘s license and a subsequent prosecution for driving while intoxicated based on the same underlying conduct are not the “same offense” and therefore not subject to the protections of the Double Jеopardy Clause of the Fifth Amendment of the United States Constitution?
The United States Supreme Court has established the “same elements” test as the propеr method for analyzing double jeopardy claims based on the contention that two or more offenses are the “same offense” for double jеopardy purposes. Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932); United States v. Dixon, 509 U.S. 688, 696-97, 113 S.Ct. 2849, 2856, 125 L.Ed.2d 556 (1993). See also, Parrish v. State, 869 S.W.2d 352 (Tex.Crim.App.1994). Under the “same elements” test often referred to as the ”Blockburger test,” two statutes define different offenses provided “each provision requires proof of an additional fact which thе other does not.” Blockburger, 284 U.S. at 304, 52 S.Ct. at 182, Parrish, supra, at 353.
erred to hold otherwise. Under Blockburger, Dixon, and Parrish, if the driver‘s license suspension under article 6687b-1 was punishment, a subsequent рrosecution of the same individual for driving while intoxicated would be barred by the Double Jeopardy Clause of the Texas and United States Constitutions.2
However, for the reasons expressed in Ex parte Tharp, 935 S.W.2d 157, deliverеd this date, the judgment of the court of appeals is vacated and the cause is remanded to the court of appeals for further proсeedings consistent with this opinion.
McCORMICK, P.J., and OVERSTREET and KELLER, JJ., concur in the result.
MEYERS, Judge, Concurring.
The majority asserts that the State will “be generally required” to prove, along with the elemеnts of driving while intoxicated set out in
The fact that, in many DWI cases, the defendant moves to suppress evidence on the theory that the State lаcked reasonable suspicion or probable cause to stop or arrest and that the State, in turn, must show that it had the requisite reasonable susрicion or probable cause in order to admit the evidence, does not bear on our analysis under Blockburger. This is so because Blockburger asks only that we turn to the two relevant statutеs and determine whether “each provision requires proof of an additional fact which the other does not” in order to discern whether the two statutes define “the same” or different offenses. Id. at 304, 52 S.Ct. at 182. After all, when the State wants to penalize an accused for any given offense it need only meet its burden of proof for each and every element of the offense as set out in the statute. It need do no more. In the case now before us,
With these remarks, I concur in the result only.