Price v. Reed

Price v. Reed
1986 OK 43
725 P.2d 1254
57 OBJ 1704
Case Number: 62195
Decided: 07/08/1986
Modified: 07/24/1986
Supreme Court of Oklahoma

Edward Keith PRICE, Plaintiff-Appellee,
v.
Paul W. REED, Jr., Commissioner, Oklahoma Department of Public Safety, Defendant-Appellant.

Appeal From The District Court, Custer County; David E. Brooks, Judge.

¶0 In a licensee's appeal from a postacquittal driver's license revocation, the trial court declared the "implied consent" provisions in 47 O.S.Supp. 1982 § 754 to be violative of the state constitution and reinstated the appellee's driver's license.

REVERSED AND REMANDED.

Blair Easley, John K. Lindsey, Dept. of Public Safety, Oklahoma City, for defendant-appellant.

Stephen D. Beam, Weatherford, for plaintiff-appellee.

OPALA, Justice.

[725 P.2d 1256]

¶1 Under challenge here is the constitutionality of the implied consent law, 47 O.S.Supp. 1982 § 754 .

¶2 Edward Price [Price] was arrested and charged with being in actual, physical control of a motor vehicle while under the influence of alcohol. He voluntarily submitted to a breath test. Its results showed that he had a blood-alcohol content of 0.18. Price then received notice his driver's license would be suspended for ninety days. After Price had been acquitted of the charge in municipal court, the Commissioner of the Department of Public Safety [Department] revoked his driver's license for a period of three months. Following an administrative hearing held at Price's request the revocation order was sustained.

¶3 Price appealed from the Department's order to the district court. At a de novo trial, no controversy was tendered as to any of the four issues defined in 47 O.S.Supp. 1982 § 754 (5)(a).

I

A DRIVER'S LICENSE REVOCATION WHICH RESTS ON THE SAME FACTS AS AN EARLIER CRIMINAL CHARGE DOES NOT VIOLATE THE CONSTITUTIONAL GUARANTEE AGAINST DOUBLE JEOPARDY

¶4 Price argues that because his driver's license revocation hearing before the Department followed his acquittal in municipal court on criminal charges arising from the same incident, he was impermissibly placed twice in jeopardy. We disagree.

¶5 Oklahoma's prohibition against double jeopardy, Art. 2, § 21 , Okl. Const., provides that no one, ". . . after having been once acquitted by a jury, [shall] be again put in jeopardy of life or liberty for that of which he has been acquitted. Nor shall any person be twice put in jeopardy of life or liberty for the same offense." The federal counterpart - the Fifth Amendment, U.S. Const.

¶6 Federal and state jurisprudence both recognize that three separate guarantees make up the double jeopardy clause. The provision affords protection from [1] a second prosecution for the same offense after acquittal, [2] a second prosecution for the same offense after conviction and [3] multiple punishments for the same offense.

¶7 While the primary goal of barring retrial on a criminal charge after acquittal is to prevent the State from mounting successive prosecutions to wear down the defendant,

¶8 In short, the double jeopardy clause does not raise an automatic barrier to the imposition of both a criminal and a civil sanction for the same act or omission.

¶9 In Robertson v. State ex rel. Lester

¶10 Price relies on Johnson v. State

¶11 Having earlier rejected the theory that a revocation hearing is the equivalent of a criminal trial, we likewise recede from the notion that a temporary revocation of one's driver's license is a form of criminal punishment which implicates the fundamental law's protection against double jeopardy. Revocation of a driver's license is part of a civil/regulatory scheme that serves a governmental purpose vastly [725 P.2d 1260] different from criminal punishment. The state's interest here is to foster safety by temporarily removing from public thoroughfares those licensees who have exhibited dangerous or erratic behavior.

II

SECTION 754 IS NOT TAINTED BY AN UNCONSTITUTIONAL ENCROACHMENT UPON THE POWERS OF THE JUDICIARY

¶12 Price argues that the provisions of § 754 "encroach" upon the power of the judicial service in violation of Art. 4, § 1 , Okl. Const.,

¶13 Price's argument is without merit. The clear language of § 754 (5) defines the range of inquiry - i.e. the issues to be resolved - rather than the burden of proof.

¶14 The legislature may define the range of inquiry to be conducted in proceedings for temporary revocation of a driver's license. By Art. 5, § 36 , Okl. Const., legislative authority is extended to all rightful subjects of legislation.

¶15 The district court declined to rule on Price's other due process claims under Art. 2, § 7 , Okl. Const. No specific violation of the fundamental law's due process safeguards is called to our attention. Moreover, since Price does not contend on appeal that the trial court's reinstatement of his driver's license should be affirmed as legally correct because he was in fact deprived of some basic constitutional rights in the hearings conducted before the Department, we need not pause here to consider any error in failing to accord Price the quality of administrative process that was his due.

¶16 The trial court's order reinstating the appellee's driver's license is reversed and the cause remanded with directions to proceed in a manner not inconsistent with this pronouncement.

¶17 REVERSED AND REMANDED.

¶18 SIMMS, C.J., DOOLIN, V.C.J., and HODGES, LAVENDER, HARGRAVE, KAUGER and SUMMERS, JJ., concur;

¶19 WILSON, J., concurs in result.

Footnotes:

1 See infra note 2 for the pertinent text of 47 O.S.Supp. 1982 § 754 .

2 The Implied Consent Law, 47 O.S.Supp. 1982 § 754 (5)(a), provides, in pertinent part, that the hearing before the authorized agent of the Commissioner of Public Safety "* * * shall cover the issues of whether the officer had reasonable grounds to believe the person had been driving or was in actual physical control of a vehicle upon the public roads, highways, streets, turnpikes or other public place of this state while under the influence of alcohol . . . and whether the person was placed under arrest.

a. If the revocation or denial is based upon a breath or blood test result and a sworn report from a law enforcement officer, the scope of the hearing shall also cover the issues as to whether:

(1) the testing procedures used were in accordance with existent rules of the Board of Tests for Alcohol and Drug Influence;

(2) the person was advised that his privilege to drive would be revoked or denied if the test result reflected an alcohol concentration of ten-hundredths (0.10) or more;

(3) the test result in fact reflects such alcohol concentration; and

(4) the breath or blood specimen was obtained from the person within two (2) hours of his arrest."

3 See text in Part I for the pertinent provisions of Art. 2, § 21 , Okl. Const.

4 See infra note 23 for the text of Art. 4, § 1 , Okl. Const.

5 The Double Jeopardy Clause of the Fifth Amendment, U.S. Const., provides in pertinent part:

"No person shall be . . . subject for the same offense to be twice put in jeopardy of life or limb . . . ."

6 Benton v. Maryland, 395 U.S. 784, 794, 89 S. Ct. 2056, 2062, 23 L. Ed. 2d 707 [1969] and Justices of Boston Municipal Court v. Lydon, 466 U.S. 294, 104 S. Ct. 1805, 1812, 80 L. Ed. 2d 311 [1984].

7 North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 2076, 23 L. Ed. 2d 656 [1969], Illinois v. Vitale, 447 U.S. 410, 415, 100 S. Ct. 2260, 2264, 65 L. Ed. 2d 228 [1980]; Justices of Boston Municipal Court v. Lydon, supra note 6, 104 S. Ct. at 1813 and Johnson v. State, Okl.Cr., 611 P.2d 1137, 1141 [1980] and Marutzky v. State, Okl.Cr., 514 P.2d 430, 431 [1973].

These protections are implicated only when the accused has actually been placed in jeopardy, i.e. (a) when a jury has been empaneled and sworn or (b) when the judge in a bench trial begins to hear the evidence. Serfass v. United States, 420 U.S. 377, 95 S. Ct. 1055 43 L. Ed. 2d 265 [1975]; Illinois v. Somerville, 410 U.S. 458, 471, 93 S. Ct. 1066, 1073, 35 L. Ed. 2d 425 [1973]; United States v. Martin Linen Supply Co., 430 U.S. 564, 569, 97 S. Ct. 1349, 1353, 51 L. Ed. 2d 642 [1977]; Ozbun v. State, Okl.Cr., 659 P.2d 954, 956 [1983].

8 Green v. United States, 355 U.S. 184, 187-188, 78 S. Ct. 221, 223, 2 L. Ed. 2d 199 [1957] and Justices of Boston Municipal Court v. Lydon, supra note 6, 104 S. Ct. at 1813. In Lydon the Court quoted the following language from Green, supra:

"`The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.'"

In Smalis v. Pennsylvania, §§§ U.S. §§§, 106 S. Ct. 1745, 90 L. Ed. 2d 116 [1986] the Court, quoting from Abney v. United States, 431 U.S. 651, 661-662, 97 S. Ct. 2034, 2041, 52 L. Ed. 2d 651 [1977], said:

"`[T]he guarantee against double jeopardy assures an individual that, among other things, he will not be forced, with certain exceptions, to endure the personal strain, public embarrassment, and expense of a criminal trial more than once for the same offense . . . . Obviously, these aspects of the guarantee's protections would be lost if the accused were forced to `run the gauntlet' a second time before an appeal could be taken; even if the accused is acquitted, or, if convicted, has his conviction ultimately reversed on double jeopardy grounds, he has still been forced to endure a trial that the Double Jeopardy Clause was designed to prohibit.'" [Emphasis added.]

9 See Annot., Acquittal or Conviction in Criminal Prosecution As Bar to Particular Actions for Forfeiture of Property or for Statutory Damages or Penalty - Federal Cases, 79 L. Ed. 2d 960, 972, 977 [1984]; Annot. Suspension or Revocation of Driver's License for Refusal to Take Sobriety Test, 88 A.L.R.2d 1064 [1963] and Annot., Conviction or Acquittal in Previous Criminal Case as Bar to Revocation or Suspension of Driver's License on Same Factual Charges, 96 A.L.R.2d 612 [1984].

10 Smith v. State ex rel. Department of Public Safety, Okl., 680 P.2d 365, 368 [1984]; Peters v. Oklahoma Department of Public Safety, Okl., 557 P.2d 908, 909 [1976] and Matter of Phelps, Okl., 548 P.2d 1021, 1023 [1976].

11 Application of Baggett, infra note 22 at 1019; Smestad v. Ellington, 191 N.W.2d 799 [N.D. 1971]; Commonwealth, Dept. of Transportation v. Abraham, 7 Pa.Cmwlth. 535, 300 A.2d 831, 832-833 [1973]; Annot., 88 A.L.R.2d 1064, supra note 9; Annot., 96 A.L.R.2d 612, supra note 9; United States v. One Assortment of 89 Firearms, 465 U.S. 354, 104 S. Ct. 1099, 1105, 79 L. Ed. 2d 361 [1984] and Haring v. Prosise, 462 U.S. 306, 103 S. Ct. 2368, 2374, 76 L. Ed. 2d 595 [1983].

The constitutionality of implied consent laws has not gone untested in the U.S. Supreme Court. In Schmerber v. State of California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 [1966] the Court upheld a state-compelled blood test against a claim that it infringed the Fifth Amendment right against self-incrimination. In South Dakota v. Neville, 459 U.S. 553, 559, 103 S. Ct. 916, 920, 74 L. Ed. 2d 748 [1983], the Court noted that Schmerber, supra, clearly allows a state to force a person who is suspected of driving while intoxicated to submit to a blood-alcohol test. The Court observed that the penalty for refusing to take a blood-alcohol test - a driver's license revocation - is "unquestionably legitimate, assuming appropriate procedural protections." South Dakota v. Neville, supra, 459 U.S. at 560, 103 S. Ct. at 920.

12 United States v. One Assortment of 89 Firearms, supra note 11, 465 U.S. at 361-362, 104 S. Ct. at 1103; Helvering v. Mitchell, 303 U.S. 391, 397, 58 S. Ct. 630, 632, 82 L. Ed. 917 [1938]; Commonwealth, Dept. of Transportation v. Abraham, supra note 11, 300 A.2d at 832 and Annot. 96 A.L.R.2d 612, supra note 9 at 614.

13 Marquardt v. Webb, Okl., 545 P.2d 769, 772 [1976]; Robertson v. State ex rel. Lester, infra note 15 at 1103; United States v. One Assortment of 89 Firearms, supra note 11, 465 U.S. at 359-360, 104 S. Ct. at 1107; Helvering v. Mitchell, supra note 12, 303 U.S. at 399, 58 S. Ct. at 633 and Atkinson v. Parsekian, 37 N.J. 143, 179 A.2d 732, 738 [1962].

14 "Jeopardy," as used in Art. 2, § 21 , Okl. Const., applies only in criminal prosecutions. See, Ex Parte Kirk, Okl.Cr., 96 Okl.Cr. 272, 252 P.2d 1032, 1034 [1953] and Pickens v. State, Okl.Cr., 393 P.2d 889, 891 [1964]. In Pickens, the Court of Criminal Appeals said:

"Jeopardy, in its constitutional and common-law sense, has a strict application to criminal prosecutions only; and the word `jeopardy,' as used in the Constitution, signifies the danger of conviction and punishment which the defendant in a criminal prosecution incurs when put upon trial before a court of competent jurisdiction under an indictment or information sufficient in form and substance to sustain a conviction."

In Kirk, supra, the court held that, without violating double jeopardy, a prisoner could be tried for escape in the district court and also be subject to a separate hearing and punishment for violation of institutional rules and regulations which arose from the escape incident. Kirk is in accord with extant federal jurisprudence. See United States v. Salazar, 505 F.2d 72, 75 [8th Cir. 1974]; United States v. Stead, 528 F.2d 257, 259 [8th Cir. 1976]; United States v. Acosta, 495 F.2d 60, 62 [10th Cir. 1974]; United States v. Boomer, 571 F.2d 543, 546 [10th Cir. 1978] and Orosco v. United States, 526 F. Supp. 756, 759 [W.D.Okl. 1981].

15 Okl., 501 P.2d 1099, 1103 [1972]; Application of Baggett, infra note 22 at 1018; see also Ballard v. State, Motor Vehicle Division, 595 P.2d 1302, 1304 [Utah 1979]; Campbell v. Superior Court, 106 Ariz. 542, 479 P.2d 685, 693 [1971]; Mills v. Bridges, 93 Idaho 679, 471 P.2d 66, 69 [1970]; Fritts v. Department of Motor Vehicles, 6 Wash. App. 233, 492 P.2d 558, 562 [1971]; Burbage v. Department of Motor Vehicles, 252 Or. 486, 450 P.2d 775, 778 [1969]; Severson v. Sueppel, 260 Iowa 1169, 152 N.W.2d 281, 285 [1967] and Blow v. Commissioner of Motor Vehicles, 83 S.D. 628, 164 N.W.2d 351, 352-353 [1969].

In Atkinson v. Parsekian, supra note 13, a driver acquitted of criminal charges arising from a fatal car accident invoked the double jeopardy clause because he claimed that he was found guilty of the same offense in his postacquittal revocation proceeding before an administrative official. The court held that:

"It is well settled that the Legislature has the constitutional power to impose both a criminal and civil or administrative sanction in respect to the same act or omission . . . The double jeopardy clause merely prohibits attempting a second time to punish criminally for the same offense . . . The proceedings before the Director . . . are administrative and not criminal, even though they arise out of the commission of an offense punishable by the courts . . . Although the suspension or revocation of a driver's license by the Director may appear to be punishment to the wrongdoer, this is not enough to characterize the statutory grant of power as criminal in nature. The primary object of the statute is to foster safety on the highway and not to impose criminal punishment to vindicate public justice." 179 A.2d at 738.

In Commonwealth, Dept. of Transportation v. Abraham, supra note 11, 300 A.2d at 832-833, a motorist acquitted in a criminal proceeding of operating a motor vehicle while under the influence of alcohol appealed from a six-month suspension of his operator's license for refusing to comply with the implied consent law. The court held that, since the suspension of the license was the result of a civil proceeding while the motorist's acquittal stemmed from a criminal proceeding, the civil regulatory body did not act improperly in suspending the license.

16 47 O.S. 1981 § 754 was most recently amended in 1982. Okla.Sess.L. 1982, Ch. 273, § 7 and Okla.Sess.L. 1982, Ch. 294, § 5. The scope of the hearing was broadened in cases where the license's revocation or its denial was based on breath, or blood, test results. The last amendment gives greater protection to a licensee since the Department now has the additional burden to prove the validity of the test and to show a blood-alcohol content of at least 0.10.

17 See Ballard v. State, Motor Vehicle Division, supra note 15 at 1305.

18 See footnote 7 supra at 1141.

19 Robertson v. State ex rel. Lester, supra note 15 at 1102. The U.S. Supreme Court has given its approval to this governmental interest. In Illinois v. Batchelder, 463 U.S. 1112, 1118, 103 S. Ct. 3513, 3516, 77 L. Ed. 2d 1267 [1983], the Court said:

"The interest of the states in depriving the drunk driver of permission to continue operating an automobile is particularly strong. We recently commented on `[t]he carnage caused by drunk drivers' in South Dakota v. Neville, 459 U.S. 553, 558, 103 S. Ct. 916, 920, 74 L. Ed. 2d 748 (1983). See also Mackey v. Montrym, supra, 443 U.S. [1] at 17-18, 99 S.Ct. [2612] at 2620-2621 [61 L. Ed. 2d 321 (1979)]; Perez v. Campbell, 402 U.S. 637, 657 and 672, 91 S. Ct. 1704, 1715 and 1722, 29 L. Ed. 2d 233 (1971) (BLACKMUN, J., concurring); Tate v. Short, 401 U.S. 395, 401, 91 S. Ct. 668, 672, 28 L. Ed. 2d 130 (1971) (BLACKMUN, J., concurring); Breithaupt v. Abram, 352 U.S. 432, 439, 77 S. Ct. 408, 412, 1 L. Ed. 2d 448 (1957)."

20 Bell v. Burson, 402 U.S. 535, 91 S. Ct. 1586, 1589, 29 L. Ed. 2d 90 [1971]; Illinois v. Batchelder, supra note 19, 463 U.S. at 1116, 103 S. Ct. at 3515 and Mackey v. Montrym, 443 U.S. 1, 10, 99 S. Ct. 2612, 2617, 61 L. Ed. 2d 321 [1979].

21 Illinois v. Batchelder, supra note 19, 463 U.S. at 1116, 103 S. Ct. at 3515.

22 Okl., 531 P.2d 1011, 1017 [1974]. Because the implied consent law was amended after Baggett, that opinion is no longer a correct exposition of the present statutory law. See Smith v. State ex rel. Department of Public Safety, supra note 10. Our statements in Baggett as to the effect of an acquittal on a subsequent driver's license revocation remain unaffected by the pronouncement in Smith, supra note 10, and continue viable.

23 Art. 4, § 1 , Okl. Const. provides:

"The powers of the government of the State of Oklahoma shall be divided into three separate departments: The Legislature, Executive and Judicial; and except as provided in this Constitution, the Legislative, Executive, and Judicial departments of government shall be separate and distict [district], and neither shall exercise the powers properly belonging to either of the others."

24 The terms of 47 O.S.Supp. 1982 § 754 (5) provide in pertinent part:

"* * * The hearing shall be recorded and its scope shall cover the issues of whether the officer had reasonable grounds to believe the person . . . was in actual physical control of the vehicle . . . and whether the person was placed under arrest." [Emphasis added.]

25 In Application of Baggett, supra note 22 at 1016, we said "* * * the legal burden of proof in the criminal case is `beyond a reasonable doubt,' while in the Suspension Hearing, the legal burden of proof is `preponderance of evidence' . . . ."

We have consistently followed this pronouncement in Smith v. State ex rel. Department of Public Safety, supra note 10 at 268; Appeal of Dungan, Okl., 681 P.2d 750, 754 [1984] and Peters v. Oklahoma Department of Public Safety, Okl., 557 P.2d 908, 909 [1976].

In Dungan, supra, we said:

"In cases involving revocation of driver's license under the Implied Consent Law, the test of sufficiency of the evidence is the preponderance of the evidence. Peters v. Oklahoma Dept. of Public Safety, Okl., 557 P.2d 908 [1976]. Pursuant to Section 754 (5), the burden was on the Department to prove that it was more probably true than not true that the officer had reasonable grounds to believe that the appellant had been driving while under the influence of intoxicants, in contradistinction to proving the fact that the appellant had been driving under the influence." [Footnote omitted, emphasis theirs.]

26 The trial court explicitly rejected the criminal law's test - beyond a reasonable doubt - as inapplicable here and found that under a lesser standard there was sufficient evidence to establish "reasonable grounds" to arrest. Although the judge did not specifically state that this lesser criterion was a preponderance of the evidence, it does not follow that his ruling is fatally infirm. The appellee utterly failed to overcome the law's presumption that the process applied was error-free.

27 Art. 5, § 36 , Okl. Const., provides:

"The authority of the Legislature shall extend to all rightful subjects of legislation, and any specific grant of authority in this Constitution, upon any subject whatsoever, shall not work a restriction, limitation, or exclusion of such authority upon the same or any other subject or subjects whatsoever."

28 Wiseman v. Boren, Okl., 545 P.2d 753, 760-761 [1976].

29 A successful party in the trial court may, without a counterappeal, argue before an appellate court that errors committed below to his prejudice would, if corrected, demonstrate the result reached in his favor to have been correct. Woolfolk v. Semrod, Okl., 351 P.2d 742, 745 [1960]; May v. May, Okl., 596 P.2d 536, 540 [1979]; Matter of Estate of Bradshaw, Okl., 606 P.2d 578, 580 [1980] and Nilsen v. Tenneco Oil Co., Okl., 614 P.2d 36, 39 [1980].