Brewer v. Kimel

• Citation: 256 F.3d 222
• Decision Date: 03 April 2001
• Docket Number: No. 00-2151,00-2151
• Parties: (4th Cir. 2001) DAVID WAYNE BREWER, Plaintiff-Appellant, v. HORACE M. KIMEL, JR., District Attorney for the Eighteenth Judicial District, Guilford County, Defendant-Appellee. Argued:
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 222

256 F.3d 222 (4th Cir. 2001)

DAVID WAYNE BREWER, Plaintiff-Appellant, v. HORACE M. KIMEL, JR., District Attorney for the Eighteenth Judicial District, Guilford County, Defendant-Appellee.

No. 00-2151

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Argued: April 3, 2001

Decided: July 5, 2001

Appeal from the United States District Court for the Middle District of North Carolina, at Durham. James A. Beaty, Jr., District Judge.

COUNSEL ARGUED: Seth R. Cohen, SMITH, JAMES, ROWLETT & COHEN, L.L.P., Greensboro, North Carolina, for Appellant. Stacey Treva Carter, Assistant Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee. ON BRIEF: Walter L. Jones, CLIFFORD, CLENDENIN, O'HALE & JONES, L.L.P., Greensboro, North Carolina, for Appellant. Isaac T. Avery, III, Special Deputy Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee.

Before WILKINSON, Chief Judge, WILLIAMS, Circuit Judge, and Frederic N. SMALKIN, United States District Judge for the District of Maryland, sitting by designation.

OPINION

WILLIAMS, Circuit Judge:

In this case, David Wayne Brewer seeks to enjoin Horace M. Kimel, Jr., the District Attorney for the Eighteenth Judicial District of North Carolina, from prosecuting him for the offense of driving while impaired in violation of N.C. Gen. Stat. S 20-138.1 (1999). Brewer contends that North Carolina's prior imposition of a thirty-day period of administrative license revocation (ALR) constitutes a criminal punishment within the meaning of the Double Jeopardy Clause of the Fifth Amendment, U.S. Const. Amend. V, and bars his prosecution on the instant charges. Because the evidence adduced by Brewer does not provide the "clearest proof" that North Carolina's thirty-day ALR is so punitive in purpose or effect that it amounts to a criminal sanction, we affirm the district court's grant of summary judgment in Kimel's favor.

I.

A.

The underlying facts in this case are not in dispute. Brewer was charged on July 22, 1999, with driving while impaired in violation of N.C. Gen. Stat. S 20-138-1 (1999). After submitting to intoxilizer tests pursuant to North Carolina law, Brewer registered a blood alcohol level of .08. Pursuant to N.C. Gen. Stat. S 20-16.5 (1999), the magistrate who processed Brewer for the criminal charge revoked his driver's license for thirty days. Pursuant to N.C. Gen. Stat. S 2016.5(g), Brewer had the right to request a hearing to contest the validity of his revocation; it is unclear whether he did so. After ten days, Brewer had the opportunity to petition for limited driving privileges pursuant to N.C. Gen. Stat. S 20-16.5(p); the record does not indicate whether Brewer requested or received such privileges. On August 23, 1999, Brewer paid the $50 restoration fee as required by law, and his license was returned by the State of North Carolina. Brewer's criminal case has been continued in the North Carolina state courts as this case has progressed, and he has not yet been tried criminally for driving while impaired.

B.

Brewer filed his complaint on October 12, 1999, seeking injunctive relief pursuant to 42 U.S.C.A. S 1983 (West 2000) to vindicate his right under the Double Jeopardy Clause of the United States Constitution not to be subjected to multiple criminal punishments for the same offense. On December 9, 1999, Kimel filed a motion to dismiss or in the alternative for summary judgment; on February 1, 2000, Brewer filed a motion for summary judgment. On August 18, 2000, the district court granted summary judgment in favor of Kimel and denied Brewer's motion for summary judgment.¹ The district court concluded that North Carolina's ALR program did not constitute criminal punishment within the meaning of the Double Jeopardy Clause.

II.

The sole issue on appeal is whether North Carolina's thirty-day ALR period amounts to criminal punishment, triggering the protections of the Double Jeopardy Clause. U.S. Const. Amend. V. We review the district court's grant of summary judgment denying a double jeopardy claim de novo. United States v. Imngren, 98 F.3d 811, 813 (4th Cir. 1996).

N.C. Gen. Stat. S 20-16.5 (1999), entitled"Immediate civil license revocation for certain persons charged with implied-consent offenses," provides for a thirty-day revocation of the driver's license of a person charged with an implied-consent offense who either refuses a blood alcohol level (BAC) test or consents to such a test and has an alcohol concentration in excess of the applicable legal limit (.08 ordinarily). N.C. Gen. Stat. S 20-16.5(b)(4). The statute provides that the charging officer must execute a revocation report and file it with the appropriate state trial court, which upon finding probable cause to believe that the statutory requirements have been met, shall revoke the driver's license. N.C. Gen. Stat. S 20-16.5.

In United States v. Halper, 490 U.S. 435 (1989), abrogated by Hudson v. United States, 522 U.S. 93, 101 (1997), the Supreme Court adopted a broad reading of the Double Jeopardy Clause which made it substantially easier to attack repetitive punishments as violative of the Clause. The Halper Court began by noting that "the Double Jeopardy Clause protects against three distinct abuses: a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense." Id. at 440 (citing North Carolina v. Pearce, 395 U.S. 711, 717 (1969)). Rather than examining whether multiple criminal punishments were involved in the case before it, the Halper Court suggested that "in a particular case a civil penalty. . . may be so extreme and so divorced from the Government's damages as expenses as to constitute punishment." Id. at 442. The Court interpreted the Double Jeopardy Clause to prohibit not only successive criminal punishments, but "merely punishing twice," id. at 443 (internal quotation marks omitted), and proceeded to hold that "a civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment," and "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 characterized as remedial, but only as a deterrent or retribution." Id. at 448-49. The Court found that in the case before it, sanctions levied under the civil False Claims Act were entirely disproportionate to the real injury to the Government and could only be explained as a punitive sanction. The Court announced that its holding was "a rule for the rare case, the case such as the one before us, where a fixed-penalty provision subjects a prolific but small-gauge offender to a sanction overwhelmingly disproportionate to the damages he has caused." Id. at 449.

Eight years later, in Hudson v. United States , 522 U.S. 93 (1997), the Court substantially curtailed the Halper approach, expressing "concerns about the wide variety of novel double jeopardy claims spawned in the wake of Halper," id. at 98, and concluding that "Halper's deviation from longstanding double jeopardy principles was ill considered," id. at 101. Rejecting Halper's emphasis on whether repetitive "punishment" exists irrespective of whether such punishment is civil or criminal in nature, the Hudson Court stated, "[w]e have long recognized that the Double Jeopardy Clause does not prohibit the imposition of all additional sanctions that could, `in common parlance,' be described as punishment. The Clause protects only against the imposition of multiple criminal punishments for the same offense." Id. at 98-99 (internal citations omitted). Rather than making the existence of "punishment" determinative, the Hudson Court focused on the criminal or civil character of the sanction, noting that Halper "marked the first time we applied the Double Jeopardy Clause to a sanction without first determining that it was criminal in nature." Id. at 100. This criminal/civil determination"is, at least initially, a matter of statutory construction." Id. at 99. However, the intent of the legislature to denominate a punishment as civil is not determinative; the Hudson Court stated that courts should"inquire[ ] further whether the statutory scheme was so punitive either in purpose or effect, as to transform what was clearly intended as a civil remedy into a criminal penalty." Id. (internal quotation marks and citation omitted).

In determining whether a punishment labeled as civil is in reality criminal for Double Jeopardy purposes, the Hudson Court applied the seven-factor test adopted by Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963), the vitality of which had been called into question by Halper's more direct analytical approach. The seven-factor Kennedy/Hudson test asks:

(1) [w]hether the sanction involves an affirmative disability or restraint; (2) whether it has historically been regarded as a punishment; (3) whether it comes into play only on a finding of scienter; (4) whether its operation will promote the traditional aims of punishment -retribution and deterrence; (5) whether the behavior to which it applies is already a crime; (6) whether an alternative purpose to which it may rationally be connected is assignable for it; and (7) whether it appears excessive in relation to the alternative purpose assigned.

Hudson, 522 U.S. at 99-100 (quoting Kennedy, 372 U.S. at 168-69) (internal quotation marks omitted).

In applying these factors, "only the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty." Id. at 100 (internal quotation marks omitted); see also Seling v. Young, 121 S.Ct. 727, 734 (2001) (reaffirming the Hudson approach and the"clearest...