State v. Hanson

532 N.W.2d 598, 1995 WL 351284

• Court: Court of Appeals of Minnesota
• Decided: August 9, 1995
• Docket: C1-95-531, C5-95-564
• Status: Published

Opinions

OPINION

PARKER, Judge.

These consolidated appeals raise the legal issue of the application of the Double Jeopardy Clause to an implied consent driver’s license revocation. Each arises from a DWI prosecution in which the defendant moved to dismiss, claiming the prior implied consent revocation was “punishment” barring further punishment. In the Hanson ease (Cl-95-531), the trial court denied the motion but certified the question to this court. In the Burns ease (C5-95-564), the trial court granted the motion to dismiss. Although the court certified the question, the state has chosen to appeal. We answer the certified question, in Hanson, in the negative, and reverse in Burns.¹

FACTS

Hanson

Hanson was stopped in Sherburne County on November 12, 1994. He agreed to take a breath test but ultimately gave a urine test. When the test result showed an alcohol concentration of .17, Hanson’s driver’s license was revoked under the implied consent statute. Although the length of the revocation is not specified in the file, we infer it to have been for 90 days.² Hanson was charged with driving while under the influence, driving with an alcohol concentration of .10 or more, and driving with an alcohol concentration of .10 or more within two hours. The trial court denied Hanson’s motion to dismiss the complaint on double jeopardy grounds, but certified the question as important and doubtful.

Bums

Burns was stopped by Lakeville police on June 19, 1994. He agreed to submit to a breath test, which showed an alcohol concentration of .15. His license was revoked for 90 days under the implied consent statute. The district court sustained the revocation. Burns was charged with driving while under the influence, driving with an alcohol concentration of .10 or more, and driving with an alcohol concentration of .10 or more within two hours. The trial court granted Burns’s motion to dismiss the complaint on double jeopardy grounds, and certified the question. The state also filed a notice of appeal.

ISSUE

Is an implied consent driver’s license revocation “punishment” for purposes of the Double Jeopardy Clause so as to bar a subsequent DWI prosecution?

ANALYSIS

The Double Jeopardy Clause protects against multiple punishment as well as successive prosecution. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). The trial court found in Bums, and the appellant argues in Hanson, that the implied consent driver’s license revocation, although nominally a civil sanction, is “punishment” for purposes of the Double Jeopardy Clause protection against multiple punishment. See United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989).

The United States Supreme Court in Hal-per stated its holding as follows:

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

Id. at 448-49, 109 S.Ct. at 1902.

The Supreme Court thus held in Halper that, for purposes of the double jeopardy guarantee against multiple punishment for the same offense,³ a civil sanction may constitute “punishment” if it can only be characterized as punitive. Id. A civil sanction that does not bear a “rational relation” to a nonpunitive purpose will be treated as “punishment.” Id. at 449, 109 S.Ct. at 1902.

The defendants in these appeals argue that a civil sanction is “punishment” under Halper unless it can “fairly be said solely to serve a remedial purpose.” Id. at 448, 109 S.Ct. at 1902. But this statement is not the explicit holding of Halper, which is quoted in full above. Moreover, this “solely remedial” language is derived from a broader analysis of the civil-criminal distinction for purposes of due process. See Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 567-68, 9 L.Ed.2d 644 (1963). That analysis does not apply in determining whether a civil sanction is “punishment.” Austin v. United States, — U.S. -, - n. 6, 113 S.Ct. 2801, 2806 n. 6, 125 L.Ed.2d 488 (1993).

The defendants argue that the Supreme Court in Austin v. United States pointed to the “solely remedial” language as the holding of Halper. See id. at -, 113 S.Ct. at 2812. But Austin involves the Excessive Fines Clause of the Eighth Amendment, not the Double Jeopardy Clause. In a more recent opinion that does involve double jeopardy, the Court has referred to the explicit Halper holding (quoted in full above) as the holding of that case. Department of Revenue of Montana v. Kurth Ranch, — U.S. -, -, 114 S.Ct. 1937, 1945, 128 L.Ed.2d 767 (1994).

The defendants in these appeals concede, as the Supreme Court noted in Halper, that even criminal penalties may serve remedial goals. See Halper, 490 U.S. at 447,109 S.Ct. at 1901. In order to determine whether the implied consent driver’s license revocation is “punishment” for double jeopardy purposes, Halper requires

a particularized assessment of the penalty imposed and the purposes that the penalty may fairly be said to serve.

Id. at 448, 109 S.Ct. at 1901.

Driver’s license revocations under the implied consent statute have historically been understood as remedial, imposed for the protection of the public. See, e.g., State v. Jun-cewski, 308 N.W.2d 316, 319 (Minn.1981); State v. Dahlheimer, 413 N.W.2d 255, 257 (Minn.App.1987). Drug forfeitures, in contrast, have historically been understood as punishment. Austin v. United States, — U.S. at-, 113 S.Ct. at 2812. The trial court in Bums therefore erred in equating driver’s license revocations with drug forfeitures for purposes of the Halper analysis.

Under the implied consent statute, a driver’s license may be revoked for a period ranging from 90 days for a first-time offender who fails the test, to one year for a person who refuses to submit to testing. Minn.Stat. § 169.123, subd. 4 (1994). But we address only the particular sanctions assessed in this case. Both of the defendants suffered implied consent driver’s license revocations of 90 days.

The only issue before us, then, is whether the 90-day driver’s license revocations suffered by the defendants are “punishment” for purposes of the Double Jeopardy Clause. Although briefed and argued for persuasive weight before this special panel, the 180-day license revocation for certain repeat offenders and the one-year revocation for those who refuse the test are not before us, see Minn.Stat. § 169.123, subd. 4, and are irrelevant to our determination of these cases. This court does not issue advisory opinions or indicate probable views even on issues clearly on the horizon.

The implied consent driver’s license revocation provision serves public safety by removing drunken drivers from the highways pending the judicial hearing. See, e.g., Heddan v. Dirkswager, 336 N.W.2d 54, 63 (Minn.1983) (compelling interest in highway safety justifies revocation pending judicial hearing). A driver receives a temporary seven-day license when he or she refuses testing or fails the test. Minn.Stat. § 169.123, subd. 5a(c)(1) (1994). There is then a 15-day waiting period before any limited license is available. Id. § 171.30, subd. 2a(1) (1994).

Defendants cite Friedman v. Commissioner of Pub. Safety, 473 N.W.2d 828 (Minn.1991), in which the supreme court noted that driver’s license revocation “has, in most instances, the same impact as the traditional criminal sanctions of a fine and imprisonment.” Id. at 832. But Friedman addresses the nature of implied consent in the context of the right to counsel, not double jeopardy. Under Halper, this court is not to look at the revocation “from the defendant’s perspective” because “even remedial sanctions carry the sting of punishment.” Halper, 490 U.S. at 447 n. 7, 109 S.Ct. at 1901 n. 7.

The defendants in these appeals argue that the implied consent revocation is not remedial because the driver is still allowed to drive for a limited time. But this hardship relief is provided to alleviate due process concerns. See Davis v. Commissioner of Pub. Safety, 517 N.W.2d 901, 904-05 (Minn.1994). It does not defeat the remedial purpose of the statute.

The implied consent revocation, although temporary, generally occurs long before the driver could be criminally prosecuted and sentenced. The defendants in these appeals argue that the driver may nevertheless ignore the revocation and continue driving. It is the function of the legislature, however, not of this court, to devise provisions that might increase the effectiveness of the implied consent statute. See generally Essling v. Markman, 335 N.W.2d 237, 239 (Minn. 1983) (court will not substitute its judgment for that of legislature).

The 90-day license revocation suffered by these defendants is certainly not “overwhelmingly disproportionate” to the public safety interest at stake. Halper, 490 U.S. at 449, 109 S.Ct. at 1902. A “particularized assessment of the penalty imposed” compels this conclusion. Id. at 448, 109 S.Ct. at 1901. Neither the character of the implied consent sanction, a driver’s license revocation, nor the 90-day length of the sanction in this case prevents it from being “fairly * * * characterized as remedial.” Id. at 449, 109 S.Ct. at 1902.⁴ Part of defendants’ argument, indeed, is that the statute is not sufficiently remedial because it does not disable the driver for a sufficiently lengthy period. They argue that a truly remedial statute would remove the drinking driver from the highway long enough to cure his or her drinking problem. We disagree that only such a statute would be remedial. Although the legislature, subject to constitutional limitations, could enact more stringent measures, the 90-day revocation period is “rationally related” to its legislative purpose of protecting public safety. Id. at 451, 109 S.Ct. at 1903.

DECISION

The question certified by the trial court in Hanson, asking whether the implied consent driver’s license revocation is “punishment” for purposes of the Double Jeopardy Clause, is answered in the negative. The trial court in Bums erred in dismissing the complaint on double jeopardy grounds.

Certified question (Cl-95-531) answered in the negative.

Reversed (C5-95-564).

1 . The parties have neither briefed nor argued that the state appeal has rendered moot the trial court’s certification, and, consequently, we do not address the question.

2 . This court, on its own initiative, has supplemented the criminal file with the record of the implied consent proceeding. See Minn.R.Civ. App.P. 110.05. That record does not state the period of revocation, but shows that the implied consent revocation effective December 25, 1994, was stayed by a January 13, 1995, order and rescinded by an April 13, 1995, order. There is no indication in either the DWI or implied consent file that Hanson has a previous license revocation. Therefore, we must assume that his implied consent license revocation was to be for 90 days, before it was stayed and later rescinded. See Minn.Stat. § 169.123, subd. 4 (1994).

3 . The state argues that the implied consent revocation and the DWI are not the “same offense” under the Blockburger "same elements” test. See generally United States v. Dixon, - U.S. -, 113 S.Ct. 2849, 2856, 125 L.Ed.2d 556 (1993). In view of our determination on the Halper issue, however, we need not address this issue. Neither is it necessary to address the state’s arguments that the implied consent and DWI are a single coordinated proceeding and that Halper applies only when the criminal punishment precedes the "civil” sanction.

4 . The defendants cite other provisions, such as the use of the implied consent revocation to enhance a DWI offense and the criminalization of refusal. See Minn.Stat. § 169.121, subds. la, 3(a)(2) (1994). But those provisions are not applicable in this case, and the issues they may present are not before us.