State v. Becker

State v. Becker  (95-061); 164 Vt 606; 669 A.2d 548

[Filed 20-Sep-1995]


                               ENTRY ORDER

                      SUPREME COURT DOCKET NO. 95-061

                            SEPTEMBER TERM, 1995


State of Vermont                     }     APPEALED FROM:
                                     }
                                     }
     v.                              }     District Court of Vermont,
                                     }     Unit No. 1, Windsor Circuit
Harold F. Becker                     }
                                     }     DOCKET NO. 1105-11-94Wrcr


       In the above-entitled cause, the Clerk will enter:

       Defendant appeals, claiming that a criminal prosecution for driving
  under the influence following an administrative license suspension arising
  from the same incident constitutes double jeopardy and is prohibited by the
  Sixth Amendment to the United States Constitution, applicable to Vermont
  under the Fourteenth Amendment.  We affirm.

       We addressed this exact issue in State v. Strong, 158 Vt. 56, 605 A.2d 510 (1992). Based on the test set forth by the United States Supreme Court
  in United States v. Halper, 490 U.S. 435, 448-49 (1989), we wrote in Strong
  that a civil sanction will be considered punitive if it can be fairly
  characterized only as a deterrent or retribution.  Strong, 158 Vt. at 62,
  605 A.2d  at 514.  A statute designed primarily to serve remedial purposes
  which incidentally has a punitive effect will not be considered punishment
  for double jeopardy purposes.  Id.; see also Halper, 490 U.S.  at 447 n.7
  (noting that even remedial civil sanctions "carry the sting of
  punishment").  Applying the Halper rule to the facts in Strong, we held
  that the constitutional prohibition against double jeopardy does not bar
  criminal prosecution for a DUI offense after suspension of the defendant's
  driver's license in a civil proceeding resulting from the same underlying
  incident.  158 Vt. at 57, 605 A.2d  at 511.

       Defendant contends that in light of recent United States Supreme Court
  decisions, we are compelled to overrule Strong.  We are not persuaded by
  defendant's argument.  Moreover, we believe that the principal case cited
  by defendant to support his double jeopardy argument, Department of Revenue
  of Mont. v. Kurth Ranch, 114 S. Ct. 1937 (1994), actually lends support to
  our analysis and holding in Strong.(FN1)  In Kurth, the issue before the
  United States Supreme Court was whether a Montana state tax imposed on the
  possession and storage of illegal drugs constituted punishment in the
  context of double jeopardy.  Id. at 1939-40.  The Court held that the drug
  tax departed so far from normal revenue laws that it had an "unmistakable
  punitive character," and therefore was a form of punishment for the purpose
  of double jeopardy analysis. Id. at 1948.

       In Strong, we interpreted the holding in Halper narrowly, emphasizing
  that finding a particular civil sanction to be punitive is "a rule for the
  rare case."  158 Vt. at 62, 605 A.2d  at

 

  514.  Kurth confirms our interpretation of Halper.  In Kurth, although
  the Court held that the Montana drug taxing scheme was punitive, it
  cautioned that a tax should not be invalidated merely because it might be
  oppressive or the legislature's motive was somehow suspect.  114 S. Ct.  at
  1946.  The fact that a remedial civil sanction has punitive elements does
  not necessarily render it punishment for double jeopardy purposes.  Rather,
  a civil sanction will be considered punitive if it can fairly be
  characterized only as a deterrent or retribution.  Id. at 1945 (citing
  Halper, 490 U.S. at 448-49).  In finding the Montana drug tax to be
  essentially punitive, the Court emphasized the egregious facts in Kurth. 
  It noted that the drug tax is "exceptional," and "[t]aken as a whole, [the]
  drug tax is a concoction of anomalies, too-far removed in crucial respects
  from a standard tax assessment to escape characterization as punishment for
  the purpose of Double Jeopardy analysis."  Id. at 1948 (tax levied on goods
  that taxpayer never lawfully possessed has unmistakable punitive
  character).

       In contrast to the unmistakably punitive drug tax in Kurth, we
  reaffirm our conclusion in Strong that "the nonpunitive purpose of the
  license suspension is. . .clear and compelling." Strong, 158 Vt. at 62, 605 A.2d  at 514.  License suspension statutes "serve[] the rational remedial
  purpose of protecting public safety by quickly removing potentially
  dangerous drivers from the roads."  Id.  Decisions from other jurisdictions
  have rejected defendant's interpretation of Kurth and followed our analysis
  in Strong.  See Snow v. Superior Court, 1995 WL 332263 (Az. Ct. App. 1995)
  (automatic license suspension primarily remedial and does not constitute
  punishment for double jeopardy purposes);  State v. Higa, 897 P.2d 928, 933
  (Hawai'i 1995) (administrative license revocation process not punitive
  because purpose is to safeguard public and reduce traffic fatalities caused
  by those driving under influence);  State v. Savard, 659 A.2d 1265, 1268
  (Me. 1995) (revocation of driver's license nonpunitive in character because
  overriding purpose of statute to provide public with safe roadways);  State
  v. Hanson, 532 N.W.2d 598, 601-02 (Minn. Ct. App. 1995) (implied consent
  driver's license revocation provision held to be remedial in nature because
  it serves public safety by removing drunken drivers from highways);  State
  v. Miller, 1995 WL 275770 (Ohio Ct. App. 1995) (administrative suspension
  of driver's license does not constitute punishment under double jeopardy
  clause because remedial in nature).

       We see no reason to overrule our holding in Strong.

       Affirmed.


                                        BY THE COURT:



                                        _______________________________________
                                        Frederic W. Allen, Chief Justice

                                        _______________________________________
                                        Ernest W. Gibson III, Associate Justice

                                        _______________________________________
                                        John A. Dooley, Associate Justice

                                        _______________________________________
                                        James L. Morse, Associate Justice

                                        _______________________________________
                                        Denise R. Johnson, Associate Justice


  -------------------------------------------------------------------------
                                  Footnotes


FN1.  Defendant also relies on Austin v. United States, 113 S. Ct. 2801
  (1993), but that decision is based on the excessive fines clause of the
  Eighth Amendment and not the double jeopardy prohibition of the Fifth
  Amendment. Id. at 2804.  It does not support defendant's argument.