In re Michael W.

• Decision Date: 13 December 2001
• Docket Number: No. 108,108
• Citation: 367 Md. 181,786 A.2d 684
• Parties: In re MICHAEL W.
• Court: Maryland Court of Appeals

786 A.2d 684

367 Md. 181

In re MICHAEL W.

No. 108, Sept. Term, 2000.

Court of Appeals of Maryland.

December 13, 2001.

John L. Kopolow, Asst. Public Defender, (Stephen E. Harris, Public Defender, on brief), Baltimore, for petitioner.

Steven L. Holcomb, Asst. Atty. Gen., (J. Joseph Curran, Jr., Atty. Gen., of Maryland, on brief), Baltimore, for respondent.

Argued before BELL, C.J., and ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL, and BATTAGLIA, JJ.

ELDRIDGE, Judge.

The version of Maryland Code (1977, 1999 Repl.Vol.), § 16-113(b)(1) of the Transportation Article, which was in effect during July 1999, required the Maryland Motor Vehicle Administration to impose a restriction, on the driver's license of an individual under the age of 21 years, which prohibited the licensee from driving "a motor vehicle with an alcohol concentration of 0.02 or more as determined by an analysis of the licensee's blood or breath." Subsection (h) of § 16-113 prohibited an individual from driving a motor vehicle in any manner which violated a restriction on the individual's license.¹

Prior to September 30, 2001, § 21-902(a)(1) of the Transportation Article provided that a "person may not drive ... any vehicle while intoxicated." Also prior to September 30, 2001, § 21-902(b) stated that a "person may not drive ... any vehicle while under the influence of alcohol." ²

The issue in this case is whether the prohibition against double jeopardy precludes a juvenile delinquency proceeding for an alleged violation of § 21-902(a)(1) or (b), when the defendant had previously been convicted of violating § 16-113(b)(1) and (h), and when both prosecutions were based on the same act of driving.

I.

On July 13, 1999, at approximately 11:00 p.m., Howard County police officer Mark Taylor stopped a motor vehicle driven by Michael W., a seventeen-year-old resident of Howard County. As Officer Taylor was checking Michael W.'s license, he detected the odor of alcohol on Michael W.'s breath. After conducting some field sobriety tests, the officer took Michael W. to the police station where an intoximeter test revealed that Michael W.'s blood alcohol content was 0.09. As a result of the breath test, Officer Taylor issued a citation to Michael W., under § 16-113(b)(1) and (h) of the Transportation Article, for violating a restriction on his license to drive.

On August 24, 1999, Michael W. pled guilty in the District Court of Maryland to the charge of violating § 16-113(b)(1) and (h), and he paid a fine of $50. Shortly thereafter, on September 13, 1999, the State filed in the Circuit Court for Howard County a "Petition For Delinquency," charging that, on July 13, 1999, Michael W. drove "while intoxicated" or "under the influence of alcohol" in violation of § 21-902, that he drove "in violation of a restricted license" in violation of § 16-113, and that he failed "to obey a traffic control device" in violation of § 21-201 of the Transportation Article.

Michael W. filed a motion to dismiss the delinquency petition, arguing that, because of his earlier District Court conviction under § 16-113 for violating the restriction on his license, the first two charges in the delinquency petition constituted a successive prosecution for the same offense and were, therefore, barred by the prohibition against double jeopardy. With regard to the third charge of failing to obey a traffic control device in violation of § 21-201, Michael argued that, if the first two charges were dismissed, the Circuit Court would have no jurisdiction over the § 21-201 charge. See Code (1974, 1998 Repl.Vol.), § 3-804(e)(2) and (f) of the Courts and Judicial Proceedings Article. After a hearing, the Circuit Court granted Michael W.'s motion and dismissed the petition. The State appealed, arguing that the double jeopardy prohibition did not prohibit the delinquency proceeding on the charge of driving while intoxicated or under the influence of alcohol. While conceding that the Circuit Court's dismissal was correct with respect to the second charge of driving in violation of a restricted license under § 16-113, the State asserted that the dismissal of the first and third charges should be reversed.

The Court of Special Appeals held that the charge of driving while intoxicated or under the influence of alcohol was not precluded by double jeopardy principles but that the charge of driving in violation of a restricted license was precluded. The intermediate appellate court vacated the dismissal of the first and third charges and upheld the dismissal of the second charge of driving in violation of a license restriction. In re Michael W., 134 Md.App. 144, 759 A.2d 322 (2000).

Michael W. filed in this Court a petition for a writ of certiorari, presenting a single question as follows:

"Is the State barred by the prohibition against double jeopardy from initiating proceedings before the [Circuit] Court for driving while intoxicated and under the influence of alcohol after having previously convicted the juvenile driver in the District Court for operating a vehicle in violation of an alcohol related license restriction?"

This Court granted the petition, In re Michael W., 362 Md. 187, 763 A.2d 734 (2000), and we shall affirm.

II.

The double jeopardy prohibition protects a "defendant from successive prosecution as well as cumulative punishment for the same offense. It is applicable to criminal prosecutions in this State by virtue of the Fifth and Fourteenth Amendments to the United States Constitution and Maryland common law." Farrell v. State, 364 Md. 499, 504, 774 A.2d 387, 390 (2001), and cases there cited. Moreover, for purposes of the double jeopardy prohibition, a juvenile delinquency proceeding is treated as a criminal prosecution. Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975); In re Mark R., 294 Md. 244, 254-261, 449 A.2d 393, 399-403 (1982); Parojinog v. State, 282 Md. 256, 384 A.2d 86 (1978). See also In re John P., 311 Md. 700, 707-710, 537 A.2d 263, 266-268 (1988)

.

In the present case, both the parties and the courts below agree that whether double jeopardy principles bar the juvenile delinquency proceeding in the Circuit Court depends upon the relationship between the offense of driving in violation of an alcohol restriction on a driver's license prohibited by § 16-113(b)(1) and (h), and driving while intoxicated or under the influence of alcohol prohibited by § 21-902(a)(1) and (b). If both offenses, when based on the same act of driving, are deemed the same offense for double jeopardy purposes, then Michael W.'s earlier District Court conviction of the § 16-113 offense would bar the later Circuit Court proceeding based on the alleged commission of the § 21-902 offense. See, e.g., Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977)

; Gianiny v. State, 320 Md. 337, 577 A.2d 795 (1990); Middleton v. State, 318 Md. 749, 758-760, 569 A.2d 1276, 1280-1281 (1990); Parojinog v. State, supra, 282 Md. 256, 384 A.2d 86; Thomas v. State, 277 Md. 257, 353 A.2d 240 (1976).

The normal test for determining whether different statutory or common law offenses should be deemed the same offense for double jeopardy purposes has been described by various names, including the "required evidence test," the "elements test," the "same elements test," the "same evidence test," and the "Blockburger test."³ This test focuses upon the elements of each offense. We have on numerous occasions repeated the explanation of the test set forth in Thomas v. State, supra, 277 Md. at 267, 353 A.2d at 246-247:

"The required evidence is that which is minimally necessary to secure a conviction for each ... offense. If each offense requires proof of a fact which the other does not, or in other words, if each offense contains an element which the other does not, the offenses are not the same for double jeopardy purposes even though arising from the same conduct or episode. But, where only one offense requires proof of an additional fact, so that all elements of one offense are present in the other, the offenses are deemed to be the same for double jeopardy purposes."

Furthermore, "[w]hen applying the required evidence test to multi-purpose offenses, i.e., offenses having alternative elements, a court must `examin[e] the alternative elements relevant to the case at issue.'" State v. Lancaster, 332 Md. 385, 392, 631 A.2d 453, 457 (1993), quoting Snowden v. State, 321 Md. 612, 618, 583 A.2d 1056, 1059 (1991). See Thomas v. State, supra, 277 Md. at 268-269, 353 A.2d at 247-248

. See also United States v. Dixon, 509 U.S. 688, 698, 113 S.Ct. 2849, 2857, 125 L.Ed.2d 556, 559 (1993); Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977); State v. Ferrell, 313 Md. 291, 298, 545 A.2d 653, 656 (1988); Nightingale v. State, 312 Md. 699, 705-706, 542 A.2d 373, 375-376 (1988); Newton v. State, 280 Md. 260, 268-273, 373 A.2d 262, 266-269 (1977).

In the case at bar, it is clear that driving while intoxicated or under the influence of alcohol has a distinct element which is not present in the restrictive license driving offense under § 16-113(b)(1) and (h). Section 21-902(a)(1) and (b) required that the State establish that the defendant was either intoxicated or under the influence of alcohol. Neither intoxication nor driving while under the influence of alcohol was an element of the § 16-113(b)(1) and (h) offense in 1999 or today. While the § 16-113(b)(1) and (h) offense in 1999 required proof of a blood alcohol concentration of 0.02, such concentration does not establish either intoxication or being under the influence of alcohol.

The State argues that the offense under § 16-113(b)(1) and (h) had three elements not contained in the offense proscribed by § 21-902(a)(1) and (b), namely a specific blood alcohol percentage, the age of the defendant, and the requirement that the defendant violate a restriction on a driver's license issued by the Maryland Motor Vehicle Administration....