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.]

The Supreme Court reaffirmed this position four years later, emphasizing again that a sanction which is designed even in part to deter or punish will constitute punishment, regardless of whether it also has a remedial purpose. See Austin v. United States, 509 U.S. 602, 113 S. Ct. 2801, 125 L. Ed. 2d 488 (1993). Under Austin, in order to determine whether a forfeiture constitutes 'punishment,' it is necessary to consider the entire scope of the statute rather than just the characteristics of the property to be forfeited. The Court provided a three-prong approach to determining whether a civil sanction constitutes punishment:

  1. "[T]he historical understanding of forfeiture as punishment" weighs heavily in favor of the conclusion that forfeiture continues to serve punitive purposes. [113 S. Ct. 2812.]
  2. Is there a discernible punitive purpose from a "clear focus of [the statute] on the culpability of the individual"? [Id.; emphasis added.]
  3. Had the legislative body passing the statute "understood those provisions as serving to deter and punish"? [Id.] Evidence of this is that the body "has chosen to tie forfeiture directly to the commission of' the criminal offense". [Id. at 2811; emphasis added.]

The following year, the U.S. Supreme Court rendered a key decision in this area. Department of Revenue of Montana v. Kurth Ranch, 511 U.S. 767 --, 128 L. Ed. 2d 767, 114 S. Ct. 1937 (1994), involved a marijuana tax imposed by the state of Montana. The Court held that it violated double jeopardy for a defendant to be tried criminally for selling marijuana and then to be charged civilly for a failure to pay the tax. The fact that one proceeding was civil and one was criminal did not matter, the Court said, so long as they both involved the same offense and both were intended as punishment.

Shortly after Kurth Ranch, the Ninth Circuit extended this reasoning to civil forfeiture. In United States v. $405,089.23 US. Currency, et al., 33 F.3d 1210 (9th Cir. 1994), the U.S. Court of Appeals was confronted with the question of whether the federal government violated the Double Jeopardy provisions of the Fifth Amendment by pursuing parallel proceedings against defendants for one course of conduct: (1) criminal prosecution for money laundering and conspiracy to manufacture drugs, and (2) civil forfeiture of property based on the same violations of law. The Court concluded:

"There can be little doubt that this case implicates the core Double jeopardy protection... The forfeiture complaint in this case was based on precisely the same conduct addressed in the claimant's criminal case, and it sought to forfeit title to the claimants' property on the basis of precisely the same violations of the same statutes. In short, this civil forfeiture action and the claimant's criminal prosecution addressed the identical violations of the identical laws; the only difference between the two proceedings was the remedy sought by the government."

Obviously, there is a clear parallel between the civil forfeiture of property in the discussed federal case and the civil "forfeiture" of a driver's license in the case herein. In both cases, the government is attempting to punish the individual in the two different proceedings for the exact same conduct (in the instant case, for driving with .08 percent blood alcohol; the only evidence offered at D.M.V. suspension hearings consists of the identical police reports relied on by the prosecution in filing the criminal charges).

After considerable litigation -- and contradictory rulings -- on the issue across the country, the U.S. Supreme Court finally dealt a near-fatal blow to the double jeopardy defense in administrative-criminal cases. In Hudson v. United States, -- 522 U.S. 93 -- (1997), defendants appealed convictions for using their positions as bank officers to secure fraudulent loans three years after paying civil fines to a federal government agency for the same conduct. They based their double jeopardy claim on United States v. Halper. Chief Justice Rehnquist, writing for the majority, stated:

"We believe that Halper's deviation from longstanding double jeopardy principles was ill-considered. As subsequent cases have demonstrated, Halper's test for determining whether a particular sanction is punitive, and thus subject to the strictures of the Double Jeopardy Clause, has proved unworkable."

Rehnquist then approved the traditional approach of considering (1) the expressed intent of the legislature, and (2) whether there is clear proof that a civil sanction is so punitive as to be criminal in nature.

The United States Supreme Court has refused to accept an ALR-DUI double jeopardy case for reasons not given. Jones v. Maryland, No. 95-1131, cert. denied (March 18, 1996).

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