Pyron v. State

Collin A. PYRON v. STATE of Arkansas

CR 97-499                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered October 2, 1997


1.   Constitutional law -- double jeopardy -- remedial civil
     sanctions may be imposed without subjecting person to double
     jeopardy. -- Both the United States and Arkansas Constitutions
     provide that no person shall be subjected to two punishments
     based on the same offense; however, remedial civil sanctions
     may be properly imposed without placing the person in
     jeopardy; remedial sanctions may be of varying types, one
     which is characteristically free of the punitive criminal
     element is revocation of a privilege temporarily granted.

2.   Constitutional law -- double jeopardy -- standard for
     determining whether civil forfeiture is punishment for double
     jeopardy purposes applies to administrative suspension of
     driver's license. -- The standard for determining whether a
     civil forfeiture is "punishment" for double jeopardy purposes
     pertains to the provision providing for administrative
     suspension of a driver's license; the test first asks whether
     the legislature intended for the statute to be a remedial
     civil sanction or a criminal penalty; secondly, it asks
     whether the administrative proceedings are so punitive in
     nature as to establish that they may not legitimately be
     viewed as civil in nature, despite any legislative intent to
     establish a civil remedial mechanism.
3.   Statutes -- administrative license suspension --
     administrative intent clearly to provide remedial-civil
     sanctions. -- Where Arkansas Code Annotated  5-65-104 (Supp.
     1995) provides that the administrative suspension of a
     driver's license is supplementary to the suspensions of
     driver's licenses as ordered by a court of competent
     jurisdiction, the standard for administrative license
     suspension established by section 5-65-104(a)(8) is based on
     the civil standard of proof by a preponderance of the
     evidence, the purpose for the sanctions is to prevent drunk
     driving, and the proceedings for imposition of the sanctions
     are conducted by the executive branch of government, and not
     the judiciary, it was clear that the legislative intent was to
     provide remedial civil sanctions.

4.   Statutes -- penalty under statute not so divorced from any
     remedial goal that it constitutes punishment under double
     jeopardy analysis -- punishment imposed is rationally related
     to statute's purpose of protecting public from drunk drivers.
     -- The supreme court, upon consideration of the language and
     application of Arkansas Code Annotated  5-65-
     104(a)(4)(A)(iii)(Supp. 1995), determined that the penalty
     imposed was not so divorced from any remedial goal that it
     constituted punishment under double jeopardy analysis; the
     temporary revocation of the privilege of driving for refusal
     to submit to a chemical analysis was found to be rationally
     related to the purpose of the statute, which was to protect
     the public from intoxicated drivers and to reduce alcohol-
     related accidents.      

5.   Statutes -- provisions made for restricted driving permit --
     legislative intent clearly to establish remedial civil
     sanction to protect public from drunk drivers while allowing
     driver to maintain his livelihood. -- In order to relieve any
     extraordinary hardship that might occur by an administrative
     license suspension, the legislature enacted Arkansas Code
     Annotated  5-65-120 (Supp. 1995), to allow those with no
     alternate means of commuting to and from work to apply for a
     restricted driving permit; this provision rebuts any argument
     concerning the punitive effect of the sanction upon a person
     whose license has been suspended, as a result of which his
     ability to maintain his means of livelihood is impaired; it 
     further reflects the legislature's intent to establish a
     remedial-civil sanction for the purpose of protecting the
     public from intoxicated drivers and to reduce alcohol-related
     accidents while softening the sanctions in order to allow the
     person to continue to operate a vehicle for appropriate
     purposes.


     Appeal from Washington Circuit Court; William Storey, Judge;
affirmed.
     Mashburn & Taylor, by:  Scott E. Smith, for appellant.
     Winston Bryant, Att'y Gen., by:  Kent G. Holt, Asst. Att'y
Gen., for appellee.

     Ray Thornton, Justice.
     Collin Andrew Pyron, appellant, was arrested by the
Fayetteville Police Department on July 19, 1996, and charged with
driving while intoxicated and refusal to submit to a chemical
analysis.  On August 20, his driver's license was suspended by the
Office of Driver Services for 120 days on the basis of his arrest
for the DWI and for 180 days for his refusal to submit to chemical
analysis.  He was convicted in Fayetteville Municipal Court for
both offenses on October 2, 1996, and appealed to Washington County
Circuit Court.
     In circuit court, he filed a motion to dismiss, alleging that
the prosecution violates the Double Jeopardy Clause of the United
States Constitution.  He argued that the length of the
administrative suspension of his license for 180 days, "rises to
the level of punishment due to its retributive and deterrent
effect."  The trial court found that because the suspension was
that of a privilege, not a right, to operate a motor vehicle, the
Double Jeopardy Clause was not violated by his trial and subsequent
conviction on criminal charges.  We agree.
     Both the United States and Arkansas Constitutions provide that
no person shall be subjected to two punishments based on the same
offense.  However, remedial civil sanctions may be properly imposed
without placing the person in jeopardy.  As the Supreme Court
stated long ago in Helvering v. Mitchell, 303 U.S. 391 (1938):
"Remedial sanctions may be of varying types.  One which is
characteristically free of the punitive criminal element is
revocation of a privilege temporarily granted." 
     In Sims v. State, 326 Ark. 296, 930 S.W.2d 381 (1996), we
articulated a standard for determining whether a civil forfeiture
is "punishment" for double jeopardy purposes, and we hold that this
standard pertains to the suspension provision.  The test first asks
whether the legislature intended for the statute to be a remedial
civil sanction or a criminal penalty.  Second, it asks whether the
administrative proceedings are so punitive in nature as to
establish that they may not legitimately be viewed as civil in
nature, "despite any legislative intent to establish a civil
remedial mechanism."  Id. at 298, 930 S.W.2d  at 382 (citing United
States v. Ursery, 116 S. Ct. 2135 (1996)).
     With regard to the first prong of this test, we note that Ark.
Code Ann.  5-65-104 (Supp. 1995) states:
The administrative suspension or revocation of
a driver's license as provided for by this
section shall be supplementary to and in
addition to the suspensions or revocations of
driver licenses which are ordered by a court
of competent jurisdiction [.]
Id.  5-65-104(f).
     We also note that the standard for administrative license
suspension established by section 5-65-104(a)(8) is based on the
civil standard of proof by a preponderance of the evidence.  This
is, of course, a lower standard than that required by a criminal
conviction, which is beyond a reasonable doubt.
     The purpose for the sanctions is to prevent drunk driving, as
stated in the Emergency Clause, as follows: "the act of driving a
motor vehicle while under the influence of intoxicating alcoholic
beverages or drugs constitutes a serious and immediate threat to
the safety of all citizens of this State . . . ."  Act 549 of 1983,
 19 (emergency clause).
     Additionally, the proceedings for imposition of the sanctions
are conducted by the executive branch of government, and not the
judiciary.  It is clear that the legislative intent was to provide
remedial civil sanctions.
     We next consider the language and application of the statute. 
Arkansas Code Annotated  5-65-104(a)(4)(A)(iii) provides:
(a)(4) The Office of Driver Services of the
Revenue Division of the Department of Finance
and Administration or its designated official
shall suspend or revoke the driving privilege
of an arrested person or shall suspend any
nonresident driving privilege of an arrested
person when it receives a sworn report from
the law enforcement officer that he had
reasonable grounds to believe the arrested
person had been operating or was in actual
physical control of a motor vehicle while
intoxicated or while there was one-tenth of
one percent (0.1%) or more by weight of
alcohol in the person's blood,  5-65-103,
which is accompanied by a written chemical
test report reflecting that the arrested
person was intoxicated or had an alcohol
concentration of one-tenth of one percent
(0.1%) or more, or is accompanied by a sworn
report that the arrested person refused to
submit to a chemical test of blood, breath, or
urine for the purpose of determining the
alcohol or controlled substance contents of
the person's blood, as provided in  5-65-202.
The suspension or revocation shall be based on
the number of previous offenses as follows:
(A)(iii) Suspension for one hundred eighty
(180) days for the first offense of refusing
to submit to a chemical test of blood, breath,
or urine for the purpose of determining the
alcohol or controlled substance contents of
the person's blood,  5-65-202 [.]
     The interpretation of this statute is a question of first
impression for this court.  Appellant argues that the statute
imposes "multiple punishments" and that it fails the second prong
of the test articulated in Sims.  We do not find that the penalty
"is so divorced from any remedial goal that it constitutes
`punishment' [under] double jeopardy analysis."  United States v.
Halper, 490 U.S. 435, 443 (1989).  We hold that the temporary
revocation of the privilege of driving for refusal to submit to a
chemical analysis is rationally related to the purpose of the
statute, which is to protect the public from intoxicated drivers
and to reduce alcohol-related accidents.      
     Further, we note that in order to relieve any extraordinary
hardship that might occur by an administrative license suspension,
the legislature enacted provisions to allow those with no alternate
means of commuting to and from work to apply for a restricted
driving permit.  Arkansas Code Annotated  5-65-120 (Supp. 1995)
provides in pertinent part:
  (a) On July 1, 1996, and thereafter, the
Office of Driver Services or its designated
agent, following the administrative hearing
for suspension or revocation of a driver's
license as provided for in  5-65-104, or upon
the request of the person whose privilege to
drive has been denied or suspended, may modify
the denial or suspension in cases of extreme
and unusual hardship by the issuance of a
restricted driving permit when it is
determined by the Office of Driver Services or
its agent that no other adequate means of
transportation exists for that person to allow
driving in any or all of the following
situations:
  (1) To and from his or her place of
employment; or
  (2) In the course of his or her employment;
or
  (3) To and from an educational institution
for the purpose of attending classes if the
person is enrolled and regularly attending
classes at the institution; or
  (4) To and from the alcohol safety education
and treatment course for drunk drivers.
This provision rebuts any argument concerning the punitive effect
of the sanction upon a person whose license has been suspended, as
a result of which his ability to maintain his means of livelihood
is impaired.  It is a further reflection of the legislative intent
to establish a remedial civil sanction for the purpose of
protecting the public from intoxicated drivers and to reduce
alcohol-related accidents while softening the sanctions in order to
allow the person to continue to operate a vehicle for appropriate
purposes.
       In summary, we do not find that the statute violates the
constitutional prohibition on double jeopardy by imposing multiple
punishments for the same offense.  The judgment of the trial court
is affirmed.
     Affirmed.