Double Jeopardy: Criminal and DMV

The usual procedure in drunk driving cases is to proceed against the accused on two separate fronts: criminal prosecution and administrative license suspension. The end results, however, are similar: The client is punished. Does a criminal prosecution following an administrative license suspension (or vice versa) constitute double jeopardy?

Double Jeopardy imageThe traditional view has been that it does not. This is usually rationalized on the pretext that license suspension, unlike criminal sentencing, is not punitive in nature. Thus, for example, in Ellis v. Pierce, 282 Cal. Rptr. 93 (Cal. App. 1991), the defendant was charged with drunk driving — and one week later his license was suspended for six months for refusing to submit to chemical testing. On appeal from the suspension hearing he argued that the suspension constituted double jeopardy because of the previously filed DUI complaint.

The appellate court held that a person who had already been criminally prosecuted could not be subjected to a second civil sanction — unless that sanction was not punitive. The court then looked at the nature of a refusal license suspension and observed that since it could not be characterized as retribution, deterrence, or compensation to any party for a loss, it was not punitive.

This approach, similar to the old view that driving is a privilege rather than a right, is simply unrealistic and unfair. The simple fact is that the individual is being prosecuted and punished twice. And in an appropriate case counsel should consider a plea or defense of "once in jeopardy".

Note, however, that the court in Ellis was dealing with a case where the individual's license was suspended for refusing to submit to chemical testing. In such a case, the person is not being prosecuted and punished twice for the same conduct: he is criminally prosecuted for drunk driving and civilly "prosecuted" for refusing to take a test. In an administrative per se suspension, however, a very different situation exists: His license is being suspended for the very same conduct for which he is being (or has been) criminally prosecuted.

Thus the focus in an administrative per se suspension, at least, should be on what constitutes as "punishment". For if a license suspension is punishment, then clearly a plea or defense of double jeopardy would be appropriate.

Until a few years ago, civil sanctions did not constitute punishment. See United States v. One Assortment of 89 Firearms, 465 U.S. 354 (1984). However, that position was clearly abandoned in United States v. Halper, 490 U.S. 435, 109 S. Ct. 1892, 104 L. Ed. 2d 487 (1989). In that drug forfeiture case, the Supreme Court held that "the labels 'criminal' and 'civil' are not paramount in determining whether a sanction constitutes punishment for double jeopardy purposes":

The notion of punishment, as we 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. [490 U.S. 447-448.]

The Supreme Court then adopted a new test for determining whether a nominally civil sanction constitutes "punishment" for double jeopardy purposes:

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 ... [Id. at 448.]

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