Jason Mark Allman v. The State of Texas--Appeal from County Court at Law of Ellis County

IN THE

TENTH COURT OF APPEALS

No. 10-95-265-CR

JASON MARK ALLMAN,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the County Court at Law

Ellis County, Texas

Trial Court # 95-10458-CR

O P I N I O N

Appellant, Jason Mark Allman, pled nolo contendere to a charge of Driving While Intoxicated. Tex. Penal Code Ann. 49.04(a) (Vernon 1996). The trial court assessed punishment at sixty days' incarceration probated for two years and a $400 fine. Allman raises two points of error on appeal: 1) the trial court erred in failing to suppress evidence obtained after Allman's arrest because, in a previous license suspension hearing, an administrative law judge found no probable cause existed for Allman's arrest; and 2) the trial court erred in failing to dismiss the DWI charge as a violation of Allman's constitutional protection against double jeopardy. We overrule both points of error and affirm the trial court's judgment.

In his first point of error, Allman argues that the State is precluded from prosecuting him for DWI because the administrative law judge in Allman's driver's license suspension hearing ruled that no probable cause existed for Allman's arrest. Allman contends that because the issue of probable cause previously had been decided by an administrative law judge, the State is barred by the doctrine of collateral estoppel from relitigating the issue in his DWI prosecution. The doctrine of collateral estoppel is encompassed within the Fifth Amendment guarantee against double jeopardy and has been defined by the United States Supreme Court to mean "that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." Ashe v. Swenson, 397 U.S. 436, 443, 90 S. Ct. 1189, 1194 (1970). Allman contends that probable cause was an issue of ultimate fact in both his driver's license suspension hearing and his DWI prosecution and, therefore, once the issue was decided in the driver's license suspension hearing, the State was estopped from relitigating the issue in his DWI trial.

It is true that probable cause to arrest is an issue of ultimate fact at a driver's license suspension hearing. Holmberg v. State, No. 01-95-01199-CR, slip op. at 3 (Tex. App. Houston [1st Dist.], May 23, 1996, pet. filed). However, in Neaves v. State, 767 S.W.2d 784 (Tex. Crim. App. 1989), the Court of Criminal Appeals held that the existence of probable cause at the time of arrest is not an issue of ultimate fact in prosecution for DWI. Id. at 786. Consequently, whether probable cause existed at the time of Allman's arrest is not an "issue of ultimate fact," and collateral estoppel thus does not preclude the State from prosecuting Allman for DWI despite the administrative law judge's previous finding. Allman's first point of error is overruled.

In his second point, Allman argues that the trial court erred in failing to dismiss the DWI charge against him as a violation of his constitutional right against double jeopardy. Allman maintains that the finding of no probable cause made by the administrative law judge in his previous driver's license suspension hearing is the equivalent of an acquittal on the DWI charge, and thus precludes the State from prosecuting him for it.

Allman's theory is that, if the trial court was obligated to follow the administrative law judge's finding that there was not probable cause to arrest him, then the trial court would have been required to grant his motion to suppress all the evidence derived from his illegal arrest. If the suppression order had been granted, asserts Allman, the evidence would be legally insufficient to support his DWI conviction, and we would then be required to render a judgment of acquittal in his favor.

In our disposition of Allman's first point of error, however, we concluded that the trial court was not obligated to follow the administrative law judge's ruling on the probable cause issue. Therefore, the trial court was free to make its own independent determination on probable cause. The court decided that the arresting officer did have probable cause to take Allman into custody; consequently, the trial court correctly denied Allman's motion to suppress. Allman makes no argument that the trial court erred in its analysis of the existence of probable cause.

Allman also contends under his second point that his DWI prosecution is barred by double jeopardy because a conviction of DWI would result in multiple punishment for the same offense. The Fifth Amendment does protect against such occurrences. North Carolina v. Pearce, 395 U.S. 711, 717-18, 89 S. Ct. 2072, 2076 (1969). Even in the event Allman's driver's license had been suspended, it has been held that the suspension of a person's driver's license is not per se "punishment." Dowling v. State, No. 07-95-0324-CR, slip op. at 8 (Tex. App. Amarillo, March 29, 1996, pet. filed). In Dowling, the court relied on the "rough justice" concept espoused by the United States Supreme Court in United States v. Halper, 490 U.S. 435, 447-48, 109 S. Ct. 1892, 1901 (1989). Dowling, slip op. at 5. If the action taken, even appearing punitive in nature, nevertheless has a rational relationship to non-punitive goals of the State, the action is not punishment. Halper, 490 U.S. at 449, 109 S. Ct. at 1902. Suspension of a person's driver's license has long been recognized as a means for the State to protect the public from drivers who fail to exercise the proper care in operating a motor vehicle and to provide safe roadways. Texas Dept. of Public Safety v. Richardson, 384 S.W.2d 128, 132 (Tex. 1964); Davison v. State, 313 S.W.2d 883, 886 (Tex. Crim. App. 1958); see also Ex parte Arnold, 916 S.W.2d 640, 642 (Tex. App. Austin 1996, no pet.) (holding that license revocation is solely for the protection of the public while using public roads and highways). Because suspension of a driver's license is not punishment, even if Allman's driver's license had been suspended, double jeopardy still would not prevent the State from proceeding with its prosecution of Allman for DWI. Allman's second point of error is overruled.

The judgment is affirmed.

BOBBY L. CUMMINGS

Justice

Before Justice Cummings and

Justice Vance

Affirmed

Opinion delivered and filed August 31, 1996

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