Glasrud v. City of Laramie

• Decision Date: 21 February 1997
• Docket Number: No. 96-135,96-135
• Parties: Matthew GLASRUD, Appellant (Defendant), v. CITY OF LARAMIE, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 1242

934 P.2d 1242

Matthew GLASRUD, Appellant (Defendant), v. CITY OF LARAMIE, Appellee (Plaintiff).

No. 96-135.

Supreme Court of Wyoming.

Feb. 21, 1997.

R. Michael Vang, of Kirkwood, Nelson & Huber, Laramie, for appellant.

Douglas K. Bryant of Corthell and King, P.C., Laramie, for appellee.

Before TAYLOR, C.J., and THOMAS, MACY, GOLDEN and LEHMAN, JJ.

GOLDEN, Justice.

Matthew Glasrud's (Glasrud) prosecution and conviction in municipal court for driving under the influence followed the administrative suspension of Glasrud's driver's license, eliciting double jeopardy concerns. In response to Glasrud's appeal from his prosecution

and conviction, the district court presents certified questions pursuant to Wyoming Rule of Appellate Procedure 11. We hold Wyoming's implied consent laws, providing for suspension of a driver's license for driving while under the influence, do not constitute "punishment" for purposes of double jeopardy.

ISSUE

Faced with an appeal from a case involving the suspension of a driver's license pursuant to Wyoming's implied consent laws and a criminal trial for driving while under the influence of alcohol, the District Court, Second Judicial District, Albany County, submitted the following certified questions, which we subsequently agreed to answer:

Does Wyoming's statutory scheme for an administrative suspension or revocation of a driver's license for driving while under the influence, (specifically, Wyo. Stat. §§ 31-7-125, 31-7-127, and 31-7-128 [1994] ), ¹ constitute punishment for purposes of the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution and Article 1, § 11 of the Wyoming Constitution?

If so, may Wyoming reasonably convict and sentence a person for DWUI and also subject [that person] to an administrative license suspension involving the same conduct without violating the double jeopardy clause of the Fifth Amendment of the United States Constitution and Article 1, § 11 of the Wyoming Constitution?

FACTS

The district court presented the following statement of facts to this Court in its Order Certifying Question[s] to Supreme Court:

There are no disputed facts which impede an answer to a question of law presented. There is no question that there were two separate proceedings; that both proceedings were instituted under authority granted by the State of Wyoming; and, that both proceedings were based upon the same proscribed behavior. The undisputed facts relevant to this question are as follows:

Appellant, Matthew Glasrud was arrested for DWUI [driving while under the influence] on April 1, 1995. He agreed to chemical testing and was found to have a .16% BAC [blood alcohol content]. He appeared in municipal court on April 7, 1995 and pled not guilty.

Appellant requested a contested case hearing on his driver's license suspension under the implied consent statute. The hearing examiner upheld the suspension.

At the subsequent trial in municipal court, Appellant moved to dismiss, claiming that the criminal proceeding violated the Double Jeopardy Clause of the U.S. and Wyoming Constitutions. The municipal court denied the motion. On July 13, 1995, [the municipal court] found Appellant guilty of driving under the influence.

The municipal court subsequently sentenced Glasrud to thirty days in the Albany County Jail, then suspended the thirty days with conditions, including no alcohol or alcohol related offenses for twenty-four months and ordered him to pay a fine and court costs totaling $460. Glasrud's appeal to the district court resulted in the certified questions above.

STANDARD OF REVIEW

Glasrud challenges the constitutionality of the municipal and state statutory schemes which provide for criminal prosecution of drunk drivers and administrative license

suspensions or revocations for drunk driving as violative of the prohibition against double jeopardy. "[E]very law must be presumed to be constitutional, with all doubt resolved in its favor." Snyder v. State, 912 P.2d 1127, 1129 (Wyo.1996) (quoting Luplow v. State, 897 P.2d 463, 466 (Wyo.1995)). "[O]ne who would deny the constitutionality of a statute has a heavy burden. The alleged unconstitutionality must be clearly and exactly shown beyond any reasonable doubt." Nickelson v. State, 607 P.2d 904, 910 (Wyo.1980).

DISCUSSION

The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution provides: "[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb." United States v. Ursery, --- U.S. ----, ----, 116 S.Ct. 2135, 2139, 135 L.Ed.2d 549 (1996). The Fifth Amendment is enforceable against the states through the Fourteenth Amendment, and the Wyoming Constitution provides the same protection, stating: "nor shall any person be twice put in jeopardy for the same offense." Cook v. State, 841 P.2d 1345, 1347 (Wyo.1992) (citing WYO. CONST. Art. 1, § 11; Vigil v. State, 563 P.2d 1344, 1350 (Wyo.1977); Hopkinson v. State, 664 P.2d 43, 68 (Wyo.1983), cert. denied, 464 U.S. 908, 104 S.Ct. 262, 78 L.Ed.2d 246 (1983)). The Double Jeopardy Clause "protects against a second prosecution for the same offense after acquittal, against a second prosecution for the same offense after conviction, and against multiple punishments for the same offense." Cook, 841 P.2d at 1347 (citations omitted).

"The law of double jeopardy is 'confused, inconsistent, and less than a model of clarity.' " Cook, 841 P.2d at 1347 (citations omitted). The law became even less clear in the wake of three United States Supreme Court opinions: United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989); Austin v. United States, 509 U.S. 602, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993); and Dept. of Revenue of Montana v. Kurth Ranch, 511 U.S. 767, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994). In light of these opinions, defendants began arguing that the Supreme Court had expanded double jeopardy protection. Lower court judges in at least twenty-one states accepted the double jeopardy argument in drunk driving/administrative license suspension cases. Jennifer E. Dayok, Comment, Administrative Driver's License Suspension: A Remedial Tool That Is Not In Jeopardy, 45 AM. U.L.REV. 1151, 1157 (1996). However, the Court attempted to set the record straight in its most recent double jeopardy opinion, United States v. Ursery, --- U.S. ----, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996).

Announcing that "Halper dealt with in personam civil penalties under the Double Jeopardy Clause; Kurth Ranch with a tax proceeding under the Double Jeopardy Clause; and Austin with civil forfeitures under the Excessive Fines Clause," the Court distinguished each of those cases from in rem civil forfeitures for purpose of the Double Jeopardy Clause. Ursery, --- U.S. at ----, 116 S.Ct. at 2147. The Court denied any jurisprudential shift in Halper, Austin and Kurth Ranch and limited the use of those cases to their facts. Id. As such, because this case involves the suspension or revocation of a driver's license and does not involve the excessive civil fines of Halper, the tax of Kurth Ranch, or a challenge under the Excessive Fines Clause like Austin, those cases are of little import to our analysis and we turn to Wyoming case law to analyze the certified questions presented.

In Nickelson v. State, 607 P.2d 904, 909 (Wyo.1980), we adopted a five criteria test to determine whether a penalty imposed by the State is "civil" or "criminal." Although Nickelson involved the right to remain silent in a proceeding in which the appellants contended the penalty was criminal in nature, the analytical framework is appropriate in this case, where we must determine whether an administrative license suspension penalty is civil/remedial, or criminal/punishment.

Nickelson's five criteria are:

(1) Type of offense. Is the offense one which is traditionally or by its very nature criminal? If not, it may be considered to be civil.

(2) Penalty. What is the penalty and how severe is it? This has been isolated as the most significant factor, but it is by no means conclusive. Imprisonment may not be used as punishment for a civil offense. The imposition of a fine or penalty may be entirely consistent with an offense being civil in nature. On the other hand, a fine or penalty may become so severe in the context of the circumstances in which it is imposed that the offense becomes criminal in nature and the constitutional protections associated with criminal prosecutions are necessarily called into play. An arbitrary dollar figure cannot be rigidly set as the touchstone. Rather, the amount of the fine must be weighed in view of all the circumstances relevant to the offense in question.

(3) Collateral Consequences. What other consequences are in the offing for the defendant in addition to the fine? Are there such collateral consequences and are they regulatory in nature or do they impose additional punishment?

(4) Punitive Significance. This is perhaps the most difficult factor to weigh and the element of subjectivity must be scrupulously avoided. We must inquire whether the offense is one primarily motivated by punitive intent. Is the statute plainly one that inflicts "punishment"? Does the judgment have stigmatizing or condemnatory significance?

(5) Arrest and Detention. Are the pretrial practices familiar to the criminal law utilized? If they are, that may serve to tip the balance in favor of a determination that the offense is criminal.

Nickelson, 607 P.2d at 909.

Glasrud contends WYO. STAT. § 31-6-102, the administrative license suspension statute, constitutes punishment for purposes of double jeopardy. WYO. STAT. § 31-6-102 provides that a person arrested for a violation of WYO. STAT. § 31-5-233, the drunk driving criminal statute, is deemed to have given consent to a chemical test or tests of his blood, breath or urine to determine blood-alcohol concentration. WYO. STAT. § 31-6-102 (Cum.Supp.1996). If a person...