Champagne v. State
| Decision Date | 06 March 1996 |
| Docket Number | No. 09-95-145,09-95-145 |
| Parties | Thad CHAMPAGNE, Appellant, v. The STATE of Texas, Appellee. CR. |
| Court | Texas Court of Appeals |
Tom Mulvaney, Strong, Pipkin, Nelson & Bissell, Beaumont, for appellant.
Tom Maness, Criminal District Attorney, Rodney D. Conerly, Assistant Criminal District Attorney, Beaumont, for State.
Before WALKER, C.J., and BURGESS and STOVER, JJ.
This is an appeal from the denial of appellant's pre-trial Application for Writ of Habeas Corpus. On October 29, 1994, appellant was arrested for the offense of driving while intoxicated in Jefferson County, Texas. On the same day the arresting officer requested that appellant submit to the taking of a specimen of appellant's breath for the purpose of analysis to determine the alcohol concentration or the presence of a controlled substance or drug in appellant's body. Appellant, after a warning, refused to give a specimen. Appellant was then released from custody on bond.
On November 17, 1994, a complaint and information were filed in the County Court at Law No. 2 of Jefferson County, Texas, Cause No. 181,606, styled The State of Texas vs. Thad Champagne, charging appellant with the offense of driving while intoxicated ("DWI"). Appellant remains on the original bond pending disposition of the DWI charge.
On April 12, 1995, in Port Arthur, Texas, Judge Thurman Bartie, Justice of the Peace, Precinct No. 8, Jefferson County, Texas, after a hearing conducted under docket number C-116, styled Texas Department of Public Safety vs. Thad Champagne, probated the suspension of appellant's Texas driver's license for a period of three months for appellant's refusal to give a breath specimen. TEX.REV.CIV.STAT.ANN. art. 6701l-5, sec. 2(i) (Vernon Supp.1995). 1 This hearing was held in compliance with TEX.REV.CIV.STAT.ANN. arts. 6701l-5, sec. 2(f) and 6687b § 22(a) (Vernon Supp.1995) 2.
On May 1, 1995, appellant filed his Application for Writ of Habeas Corpus in the County Court at Law No. 2 case, seeking release from the DWI charge pending therein on the basis of double jeopardy. Appellant contends since he has been previously punished by reason of the probating of the suspension of the Texas driver's license by Judge Thurman Bartie, double jeopardy attaches in the separate proceeding for the same conduct alleged in the information accusing appellant of DWI.
Appellant's one point of error urges:
Appellant's Application for Writ of Habeas Corpus should be granted on double jeopardy grounds because the suspension of a person's driver's license under Texas law for failure to give a breath specimen in connection with an arrest for DWI bars a subsequent prosecution for DWI.
Appellant has brought forth an excellent brief submitting his argument and authorities upholding his contention that he has been placed in double jeopardy and that the continuation of the criminal prosecution would violate the Texas and United States Constitutions. See U.S. CONST. amend. V; TEX. CONST. art. I, § 14. The Court of Criminal Appeals has recognized that the Federal and State constitutional provisions are identical. Phillips v. State, 787 S.W.2d 391, 393, n. 2 (Tex.Crim.App.1990). However, this very same issue has been presented to four other courts of appeals. Arnold v. State, 920 S.W.2d 704 (); Johnson v. State, 920 S.W.2d 692 (); Ex parte Tharp, 912 S.W.2d 887 (Tex.App.--Fort Worth 1995, pet. filed); and Voisinet v. State, 909 S.W.2d 262 (Tex.App.--Houston [14th Dist.] 1995, pet. granted). While the reasoning varies in each of these cases, the conclusion is the same--that the driver's license suspension does not constitute punishment. Therefore, the subsequent prosecution for DWI offense is not double jeopardy in violation of the Texas and United States Constitution.
We note in reaching this conclusion that the recent United States Supreme Court pronouncements in Department of Revenue of Montana v. Kurth Ranch, 511 U.S. 767, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994); Austin v. United States, 509 U.S. 602, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993); United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989); and, of course, Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), have been scrutinized by our sister courts of appeals and analyzed in depth.
Our analysis of the issues before us and our interpretation of the statutes involved lead us to concur with the findings of our sister courts that the driver's license suspension under art. 6701l-5, sec. 2(i) does not constitute punishment for double jeopardy purposes. And, therefore, a prosecution under TEX.PENAL CODE ANN. § 49.04 (Vernon 1994), following a driver's license suspension under art. 6701l-5, sec. 2(i), does not violate the protection against multiple punishments found in the Fifth Amendment to the United States Constitution.
The implied consent statute, art. 6701l-5, sec. 1, provides that any person operating a motor vehicle in this state is deemed to have given consent to submit to the taking of one or more specimens of his breath or blood for the purpose of determining the alcohol concentration in his body. TEX.REV.CIV.STAT.ANN. art. 6701l-5, sec. 1 (Vernon Supp.1995).
The offense of driving while intoxicated with which the appellant is charged is defined as follows: "A person commits an offense if the person is intoxicated while driving or operating a motor vehicle in a public place." TEX.PENAL CODE ANN. § 49.04(a) (Vernon 1994).
To suspend a driver's license for failure to give a specimen the following must be established at the administrative hearing:
If, upon such hearing the hearing officer finds (1) that probable cause existed that such person was driving or in actual physical control of a motor vehicle in a public place while intoxicated, (2) that the person was placed under arrest by the officer and was offered an opportunity to give a specimen under the provisions of this Act, and (3) that such person refused to give a specimen upon request of the officer, then the Director of the Texas Department of Public Safety shall suspend the person's license or permit to drive....
TEX.REV.CIV.STAT.ANN. art. 6701l-5, sec. 2(f).
Voisinet v. State, 909 S.W.2d at 263, held that there is no jeopardy bar because "[t]he statutes governing license suspensions are not criminal statutes." Therefore, the proceedings before the administrative judge do not amount to an offense for double jeopardy purposes. The Fourteenth Court concluded that the administrative hearing and a subsequent prosecution for DWI are not the same offense, and that the suspension statutes are addressed to the Id. at 264.
In Johnson v. State, supra, the First Court concluded: "Appellant's 90 day license suspension in cause number 95-03-10125 was in response to his...
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Ex parte Pitluk
...] the State's remedial goal of quickly protecting the public from drunk drivers." Compare Tharp, 935 S.W.2d at 159-60 with Champagne v. State, 918 S.W.2d 612, 615 (Tex.App.--Beaumont 1996, no pet.) (stating similar purposes). We therefore hold that the suspension of Pitluk's driver's licens......