State v. Strong

 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P.
 40 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
 that corrections may be made before this opinion goes to press.


                                 No. 91-058


 State of Vermont                             Supreme Court

                                              On Appeal from
      v.                                      District Court of Vermont,
                                              Unit No. 2, Addison Circuit

 Danny Strong                                 November Term, 1991


 Michael S. Kupersmith, J.

 Gary Kessler, State's Attorneys Office, Montpelier for plaintiff-appellee

 E.M. Allen, Defender General, and William A. Nelson, Appellate Attorney,
   Montpelier, for defendant-appellant


 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


      DOOLEY, J.   In this case we hold that the constitutional prohibition
 against double jeopardy does not bar criminal prosecution and punishment for
 driving under the influence of intoxicating liquor after the suspension of
 the defendant's driver's license in a civil proceeding resulting from the
 same underlying incident.  The judgment is affirmed.
      The police stopped defendant on June 17, 1990, for driving under the
 influence.  Defendant consented to a breath test, which showed that he had a
 blood alcohol content (BAC) of .16%.  Pursuant to the civil license
 suspension procedure of 23 V.S.A. { 1205, he was warned of his rights and
 cited.
      Under the statute, unless the operator requests a hearing, the
 operator's license is summarily suspended for at least 90 days when
 analysis shows the operator's BAC to be above .08%.  23 V.S.A. { 1205(a).(FN1)
 The operator may avoid immediate suspension by requesting a hearing to
 determine whether the officer had reasonable grounds to believe the person
 was violating 23 V.S.A. { 1201(a), (FN2) whether the person's rights were
 adequately explained, and if the test was properly conducted and indeed
 showed a BAC level of .08 % or higher.  23 V.S.A. {{ 1205 (f),(g).  A
 requested hearing is held in district court without a jury under the Vermont
 Rules of Civil Procedure; affidavits of law enforcement officials and
 chemists are admissible, subject to rebuttal; and the state has the burden
 to show the statutory requirements for suspension by a preponderance of the
 evidence.  23 V.S.A. { 1205(i).  Suspension commences eleven days after
 notice of the test result and notice of intention to suspend is served.  In
 cases where a hearing is requested and held, suspension commences
 immediately following a court's finding that the statutory requirements have
 been met.  23 V.S.A. {{ 1205(e), (h).  A suspended license is not reinstated
 until its holder has completed alcohol screening, and therapy or education
 requirements, if needed.  23 V.S.A. { 1209a.  The statute sets forth longer
 suspension periods for second and subsequent suspensions.  23 V.S.A. {
 1205(l).
      When notified of his impending license suspension, defendant waived his
 right to a hearing, and his suspension began July 18, 1990.  On September
 19, 1990, defendant was charged by information with driving under the in-
 fluence of intoxicating liquor in violation of 23 V.S.A. { 1201(a)(2), based
 on the same incident for which his license had been suspended.  Ultimately,
 he plead guilty to the charge, and the district court sentenced him to a
 fine and suspended jail term, following its denial of his motion to dismiss
 on the ground of double jeopardy.  The plea was entered on condition of the
 allowance of this appeal.
      On appeal, defendant claims his DUI prosecution following his license
 suspension violated the double jeopardy clause of the Fifth Amendment to the
 United States Constitution, because it constituted multiple punishment after
 multiple prosecution for the same conduct.  The amendment provides that no
 person may "be subject for the same offence or twice put in jeopardy of life
 or limb."  U.S. Const. Amend. V.  This clause protects "`against a second
 prosecution for the same offense after acquittal . . . [,] against a second
 prosecution for the same offense after conviction[, a]nd . . . against
 multiple punishments for the same offense.'"  Grady v. Corbin, ___ U.S. ___,
 ___, 110 S. Ct. 2084, 2090 (1990) (quoting North Carolina v. Pearce, 395 U.S. 711, 717 (1969)).  It is undisputed that defendant's license suspension
 and the subsequent criminal penalty resulted from the same conduct or
 "offense."  We first address defendant's argument that he was twice punished
 for that conduct.
      Traditionally, the Legislature's labeling of the license suspension
 proceeding as civil meant that the sanction imposed was not a punishment for
 double jeopardy purposes.  See Helvering v. Mitchell, 303 U.S. 391, 399
 (1938).  The United States Supreme Court has, however, recently held
         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 sanction may not fairly be char-
         acterized as remedial, but only as a deterrent or
         retribution.

 United States v. Halper, ___ U.S. ___, ___, 109 S. Ct. 1892, 1902 (1989).
 Defendant's argument here is based largely on the Halper holding.
      In Halper, the Court found that the imposition of punitive civil
 sanctions following a criminal prosecution for the same underlying
 misconduct violated the double jeopardy clause.  Id. at ___, 109 S. Ct.  at
 1902-03.  However, the difference in the timing of the events in this case,
 in which the ostensibly civil proceeding addressing the same conduct came
 first, is not determinative.  "If in fact a civil sanction may fairly be
 characterized `only as a deterrent or retribution,' . . . then its exaction
 before imposition of criminal punishment should have the same double
 jeopardy effect as exaction afterwards."  United States v. Marcus Schloss &
 Co., 724 F. Supp. 1123, 1126 (S.D.N.Y. 1989) (quoting Halper, ___ U.S. at
 ___, 109 S. Ct. at 1902).
      The issue of whether defendant was twice punished for the same conduct
 turns on whether the suspension of defendant's license under { 1205 is
 properly categorized as remedial, or as deterrence and retribution.  This
 determination is essentially one of statutory construction, see United
 States v. Ward, 448 U.S. 242, 248 (1980) (examining nature of statutory
 penalties to determine whether Fifth and Sixth Amendment protections to
 criminal defendants should apply).  Therefore, we look at whether the
 Legislature intended that the license suspension be civil and remedial,
 and, if so, "whether the statutory scheme was so punitive either in purpose
 or effect as to negate that intention."  Id. at 248-49.
      The plain language of the statute here indicates that the Legislature
 intended that the summary suspension be of a civil nature.  The title of 23
 V.S.A. { 1205 is "Civil suspension; summary procedure."  In mandating, for
 example, civil rules of evidence and proof, it embodies "distinctly civil
 procedures" by which the Legislature "`has indicate[d] clearly that it
 intended a civil, not a criminal, sanction.'"  United States v. One
 Assortment of 89 Firearms, 465 U.S. 354, 363 (1984) (quoting Helvering v.
 Mitchell, 303 U.S. at 402).
      In determining whether the statutory scheme is so punitive as to negate
 the Legislature's intent to create a civil license suspension procedure, we
 are guided in part in our analysis by the factors set forth in Kennedy v.
 Mendoza-Martinez, 372 U.S. 144 (1963).  In that case, the Supreme Court
 held that summary forfeiture of citizenship was a punitive treatment for
 citizens who evaded the draft by departing or remaining outside the country,
 and thus required the constitutional procedural safeguards afforded criminal
 defendants. Id. at 164.  The Court noted that it would be inclined to find a
 sanction punitive when it 1) "involves an affirmative disability or
 restraint," 2) "has historically been regarded as a punishment," 3) requires
 a finding of scienter, and 4) promotes the "twin aims of punishment --
 retribution and deterrence."  Id. at 168.  To the extent "an alternative
 purpose to which the sanction may rationally be connected is assignable to
 it," the sanction need not be considered punitive, if it does not appear
 "excessive to the alternative purpose assigned."  Id.
      Our analysis under the Mendoza-Martinez factors points to the non-
 punitive nature of the suspension.  Although the sanction arguably involves
 an affirmative restraint, it is actually the "revocation of a privilege
 voluntarily granted," Helvering v. Mitchell, 303 U.S.  at 399, a traditional
 attribute of a remedial action.  See also McGarry v. Costello, 128 Vt. 234,
 240, 260 A.2d 402, 405 (1969) (although a license is "an important and
 valued privilege that cannot be arbitrarily revoked . . .[,] its exercise
 and enjoyment are contingent upon compliance with the conditions which the
 legislature has imposed"); State v. Lebo, 129 Vt. 449, 450, 282 A.2d 804,
 805 (1971) (prison disciplinary actions not punishment for double jeopardy
 purposes).  In some contexts, including conviction for violating 23 V.S.A. {
 1201, license suspension has served as a punishment, but it also has
 historically served a regulatory purpose.  See State v. Mastaler, 130 Vt.
 44, 50, 285 A.2d 776, 780 (1971) (statute under which defendant's driver's
 license could be suspended was not "penal in nature").  A finding of
 scienter is necessary neither for a license suspension, nor for DUI
 conviction in the criminal context.  Although there is an element of
 deterrence to the summary suspension of an operator's license, this element
 is present in any loss of license or privilege and is not the primary focus
 of this statutory scheme.
      The summary suspension scheme serves the rational remedial purpose of
 protecting public safety by quickly removing potentially dangerous drivers
 from the roads.  License reinstatement requirements reinforce this purpose.
 Suspended licenses are reinstated only after operators have met screening
 and treatment reqwuirements designed to identify unsafe drivers and to help
 them to the point where they no longer pose the same risk.  The minimum
 suspension period is not excessive in relation to the remedial purpose, and
 we must defer to the Legislature in determining the remedial action
 necessary to achieve its goals.  See Ward, 448 U.S.  at 249 (requiring the
 "clearest proof" to establish the unconstitutionality of a statute on the
 ground that it was so punitive as to negate Congress' intention to provide a
 non-punitive remedy); Ex parte Rogers, 804 S.W.2d 945, 950 (Tex. Ct. App.
 1990) (post-Halper case applying the same standard).  Based on all of these
 factors, we conclude that defendant's license suspension was not a
 "punishment" for double jeopardy purposes.
      In reaching this conclusion, we are cognizant of defendant's argument
 that Halper fundamentally altered double jeopardy doctrine as applied to
 sanctions the Legislature has labeled as remedial or civil.  Indeed, Halper
 holds that the "labels 'criminal' and 'civil' are not of paramount
 importance."  Halper, ___ U.S. at ___, 109 S. Ct.  at 1901.
      Our reading of Halper is more narrow than that of defendant.  The
 Halper Court pointed out that its holding that a particular civil penalty
 was punitive "is a rule for the rare case ... ."  Id. at ___, 109 S. Ct.  at
 1902.  The rule requires a finding that the "civil" sanction may fairly be
 characterized "only as a deterrent or retribution."  Id. (emphasis added).
 "[T]he fact that a statute designed primarily to serve remedial purposes
 incidentally serves the purpose of punishment as well does not mean that the
 statute results in punishment for double jeopardy purposes."  State v.
 Nichols, ___ P.2d ___, ___, 1991 WL 75364, p. 8 (Ariz. Ct. App. 1991)
 (post-Halper decision upholding proceeding similar to that challenged
 here).
      We note that no court has held that the suspension of a motor vehicle
 operator's license is so punitive as to involve a criminal punishment for
 double jeopardy purposes.  The decisions prior to Halper held that license
 suspension is not a criminal punishment invoking double jeopardy protection.
 See, e.g.,  City of Orem v. Crandall, 760 P.2d 920, 922 (Utah Ct. App.
 1988).  The few decisions since Halper hold similarly.  See Nichols, ___
 P.2d at ___; Ellis v. Pierce, 230 Cal. App. 3d 1557, ____, 282 Cal. Rptr. 93, 95 (1991); Schreiber v. Motor Vehicle Division, 104 Or. Ct. App., 802 P.2d 706, 706 (1990).  In short, a "bright line" has developed because the
 nonpunitive purpose of the license suspension is so clear and compelling.
 We see nothing in Halper that induces us to cross that line.
      Defendant's second argument is that he was twice prosecuted for the
 same underlying conduct in violation of the prong of the double jeopardy
 barring multiple prosecutions.  In other contexts, however, we have
 repeatedly stated that a { 1205 license suspension is a civil proceeding,
 not a criminal prosecution.  See, e.g., Shaw v. District Court, 152 Vt. 1,
 6-7, 563 A.2d 636, 640 (1989) (because summary suspension hearing under {
 1205 for refusal to submit to alcohol test is a civil proceeding, not a
 criminal prosecution, right under Vermont Constitution to trial by jury in
 "prosecutions for criminal offenses" does not apply, and preponderance of
 the evidence is adequate standard of proof); State v. Lynaugh, 148 Vt. 124,
 126-27, 530 A.2d 555, 557 (1987) (since license suspension for failure to
 take breath test occurs in a civil administrative proceeding, party seeking
 review must petition superior court for extraordinary relief); Carpenter v.
 Vermont Dept. of Motor Vehicles, 143 Vt. 329, 334, 465 A.2d 1379, 1382
 (1983) (once court finds reasonable basis for request to submit to a breath
 test, it has no discretion in refusal case; suspension follows purely by
 administrative action).  Further, the license suspension proceeding is not a
 criminal prosecution for purposes of double jeopardy for many of the reasons
 discussed in this opinion.  The Legislature intended a civil proceeding; the
 civil procedure rules apply; the evidentiary standard of proof is civil;
 and, finally, no criminal sanction may be imposed through the proceeding 
 -- only license suspension can take place.
      Affirmed.

                                         FOR THE COURT:




                                         Associate Justice



FN1.      At the time defendant was stopped, the statute required a .10
percent BAC and differed from the present law in other ways also not
relevant to this appeal.  The citations in this opinion are to the statute
as amended in 1991.

FN2.    23 V.S.A. { 1201(a) provides:
(a)  A person shall not operate, attempt to operate, or
be in actual physical control of any vehicle on a
highway:
  (1)  when the person's alcohol concentration is 0.08
or more; or
  (2)  when the person is under the influence of
intoxicating liquor; or
  (3) when the person is under the influence of any
other drug or under the combined influence of alcohol
and any other drug to a degree which renders the person
incapable of driving safely.