William M. Kenison v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: February 23, 1999
• Docket: 1688974
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Annunziata, Bumgardner and Senior Judge Hodges Argued at Alexandria, Virginia

WILLIAM M. KENISON MEMORANDUM OPINION * BY v. Record No. 1688-97-4 JUDGE RUDOLPH BUMGARDNER, III FEBRUARY 23, 1999 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Jane Marum Roush, Judge

J. Burkhardt Beale (Boone, Beale, Cosby & Long, on brief), for appellant.

John H. McLees, Jr., Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

William M. Kenison appeals his jury conviction for driving

under the influence in violation of Code § 18.2-266. He argues

that this conviction is double jeopardy because he was subjected

to an administrative license suspension. He further argues that

the administrative and criminal penalties were separate and

distinct punitive proceedings for the same act. Finding no

error, we affirm the defendant's conviction.

The defendant was arrested for driving under the influence.

A magistrate suspended his license administratively for seven

days pursuant to Code § 46.2-391.2. The defendant moved to

dismiss the criminal warrant arguing it was a violation of his

right not to be placed in double jeopardy. The trial court

* Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication. denied his motion, convicted him, and imposed a fine and

suspension of his privilege to drive.

The defendant contends that Code § 19.2-294 barred his

prosecution for driving under the influence because the

administrative license suspension had subjected him to a prior

adjudication. Brame v. Commonwealth, 252 Va. 122, 476 S.E.2d 177

(1996), decides this point. In Brame, the Supreme Court held

that an administrative license suspension did not trigger the

protections of Code § 19.2-294. The Court concluded that double

jeopardy protections only applied to criminal proceedings and

that the administrative revocation procedure was not a criminal

proceeding. See id. at 130-31, 476 S.E.2d at 183.

The first revocation was an administrative proceeding. A

subsequent criminal trial for driving under the influence could

not be a subsequent conviction that would come within the bar of

Code § 19.2-294 or the Double Jeopardy Clause of the Fifth

Amendment. Hudson v. United States, 118 S. Ct. 488 (1997), held

that the Fifth Amendment did not bar a criminal prosecution that

followed administrative proceedings which were civil, not

criminal in nature. The case overruled United States v. Halper, 490 U.S. 435 (1989), as unworkable.

Though the defendant acknowledges the magistrate's license

suspension was a civil proceeding, he argues that the suspension

was a conviction for purposes of Code § 19.2-294. He cites the

definition of "conviction" in Code § 46.2-341.4 that specifies

the term includes administrative revocations within its meaning.

- 2 - However, the section makes clear that the definition is limited

to Article 6.1 of Title 46.2, the Virginia Commercial Driver's

License Act.

The defendant also argues that the administrative and

criminal suspensions were separate and distinct punitive

proceedings arising out of the same conduct. However, parallel

administrative and criminal proceedings are not separate judicial

proceedings. An administrative suspension "is not a judgment by

a court of competent jurisdiciton." Simmons v. Commonwealth, 252

Va. 118, 120-21, 475 S.E.2d 806, 807 (1996). See Wild v.

Commonwealth, 18 Va. App. 716, 446 S.E.2d 626 (1994) (punishment

of same conduct, first at Department of Corrections

administrative disciplinary hearing and then subsequent judicial

proceeding, upheld).

Finally, the defendant argues that the seven-day

administrative suspension was excessive because he had a

commercial driver's license. Code §§ 46.2-341.26:2(D) and

46.2-341.26:3(C) prescribe a twenty-four hour suspension of a

driver's commercial license. If the magistrate erred, the

defendant's recourse was to appeal that action not to assert it

as a bar to the subsequent criminal charge.

Concluding that the trial court did not err, we affirm. Affirmed.

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