State v. Oliver

470 S.E.2d 16, 343 N.C. 202, 1996 N.C. LEXIS 270
CourtSupreme Court of North Carolina
DecidedMay 10, 1996
Docket378PA95
StatusPublished
Cited by61 cases

This text of 470 S.E.2d 16 (State v. Oliver) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Oliver, 470 S.E.2d 16, 343 N.C. 202, 1996 N.C. LEXIS 270 (N.C. 1996).

Opinions

LAKE, Justice.

Defendant appeals his conviction and sentence for driving while impaired (“DWI”) in violation of N.C.G.S. § 20-138.1. Defendant contends his conviction must be reversed because: (1) the administrative license revocation proceeding which resulted in defendant’s driver’s license being revoked for ten days barred defendant’s subsequent criminal prosecution for DWI under the principles of double jeopardy; (2) the arresting officer informed defendant of his rights regarding the chemical analysis of his breath for alcohol concentration rather than allowing another officer to do so, which violated N.C.G.S. § 20-16.2(a) and required the suppression of defendant’s breath test result in his criminal prosecution for DWI; and (3) the trial court instructed the jury in such a way as to allow a nonunanimous verdict, which violated the North Carolina Constitution and N.C.G.S. § 15A-1237(b). For the reasons which follow, we affirm defendant’s conviction and sentence.

On 24 June 1994, Trooper E.L. Morris charged defendant with DWI in violation of N.C.G.S. § 20-138.1. Defendant submitted to a [205]*205chemical analysis of his breath to determine his alcohol concentration using an Intoxilyzer 5000, and prior to the chemical analysis, Trooper Morris notified defendant of his rights regarding the Intoxilyzer 5000. At the time defendant was tested, Trooper Morris was a certified chemical analyst with the North Carolina Department of Human Resources. The chemical analysis of defendant’s breath revealed defendant’s alcohol concentration was 0.08. Trooper Morris completed and filed an affidavit and revocation report regarding the analysis result. Upon review by a magistrate, a revocation order was entered 24 June 1994 revoking defendant’s driver’s license for ten days. The Division of Motor Vehicles restored defendant’s driver’s license at the expiration of the ten days upon defendant’s payment of a $50 restoration fee.

On 4 May 1995, defendant was found guilty of DWI in district court; defendant appealed to superior court. Defendant filed a motion to dismiss the DWI charge against him on the ground that the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution prevented his prosecution for DWI and filed a motion to suppress the result of the Intoxilyzer 5000 test on the ground that Trooper Morris failed to take defendant before another officer to inform defendant of his rights in accord with N.C.G.S. § 20-16.2(a). Both motions were denied by Judge J.B. Allen, Jr. On 28 June 1995, a jury found defendant guilty of DWI.

I.

Defendant contends that the Double Jeopardy Clause of the United States Constitution and the Law of the Land Clause of the North Carolina Constitution prohibited defendant’s conviction for DWI because he allegedly had already been punished for this offense.

The Double Jeopardy Clause “protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717, 23 L. Ed. 2d 656, 664-65 (1969) (footnotes omitted), companion case overruled on other grounds by Alabama v. Smith, 490 U.S. 794, 104 L. Ed. 2d 865 (1989). The Law of the Land Clause incorporates similar protections under the North Carolina Constitution. See N.C. Const, art. I, § 19. In this case, defendant contends that the guarantee against double jeopardy has been implicated because he was doubly punished in separate proceedings which were based on the same offense. More specifically, defendant argues that [206]*206the ten-day administrative revocation of his driver’s license constitutes punishment-for purposes of double jeopardy analysis, and thus, his subsequent criminal conviction for DWI amounts to a second punishment for the same offense. The State responds that the ten-day driver’s license revocation is a highway safety measure, not punishment; therefore, according to the State, there is no double jeopardy violation. We agree with the State in this regard.

Defendant relies upon three cases from the United States Supreme Court: United States v. Halper, 490 U.S. 435, 104 L. Ed. 2d 487 (1989); Austin v. United States, 509 U.S. 602, 125 L. Ed. 2d 488 (1993); and Department of Revenue v. Kurth Ranch, — U.S. -, 128 L. Ed. 2d 767 (1994). Under these cases, defendant contends that the term “punishment” for purposes of double jeopardy analysis is now to be afforded a much broader definition than that traditionally employed. Defendant states that Halper began this trend of broadly interpreting punishment and that a sanction must now be classified as punishment when the sanction, though serving remedial goals, also serves the twin aims of punishment — deterrence and retribution.

In United States v. Halper, the United States Supreme Court phrased the dispositive question as “whether and under what circumstances a civil penalty may constitute ‘punishment’ for the purposes of double jeopardy analysis.” 490 U.S. at 436, 104 L. Ed. 2d at 494. The Court noted first that in identifying the inherent nature of a proceeding, labels of “criminal” and “civil” were not of paramount importance and “that in determining whether a particular civil sanction constitutes criminal punishment, it is the purposes actually served by the sanction in question, not the underlying nature of the proceeding giving rise to the sanction, that must be evaluated.” Id. at 447 n.7, 104 L. Ed. 2d at 501 n.7. The Court announced what it termed as a “rule for the rare case,” id. at 449, 104 L. Ed. 2d at 502, and explained:

[A] civil as well as a criminal sanction constitutes punishment when the sanction as applied in the individual case serves the goals of punishment.
. . . [P]unishment serves the twin aims of retribution and deterrence. ... [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, as we have come to understand the term. 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 [207]*207sanction may not fairly be characterized as remedial, but only as a deterrent or retribution.

Id. at 448-49, 104 L. Ed. 2d at 501-02 (citations omitted).

Next, the Supreme Court decided Austin v. United States, 509 U.S. 602, 125 L. Ed. 2d 488. Citing Halper’s formula for determining whether a sanction constitutes punishment, the Court held that a civil forfeiture of property under 21 U.S.C. § 881(a)(4) and (7), as applied in Austin, equaled punishment and was, therefore, “subject to the limitations of the Eighth Amendment’s Excessive Fines Clause.” Austin, 509 U.S. at -, 125 L. Ed. 2d at 506. The Supreme Court later decided

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Bluebook (online)
470 S.E.2d 16, 343 N.C. 202, 1996 N.C. LEXIS 270, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-oliver-nc-1996.