Ingram v. Com.

• Decision Date: 25 May 1999
• Docket Number: Record No. 0873-98-2.
• Citation: 514 S.E.2d 792,29 Va. App. 759
• Parties: Bradford Ramey INGRAM v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

514 S.E.2d 792

29 Va. App. 759

Bradford Ramey INGRAM v. COMMONWEALTH of Virginia.

Record No. 0873-98-2.

Court of Appeals of Virginia, Richmond.

May 25, 1999.

David M. Gammino, Richmond, for appellant.

H. Elizabeth Shaffer, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Present: BENTON, COLEMAN and ELDER, JJ.

ELDER, Judge.

Bradford Ramey Ingram (appellant) appeals from his bench trial conviction for driving under the influence (DUI), second offense, pursuant to Code § 18.2-266. On appeal, he contends the administrative suspension of his license pursuant to Code § 46.2-391.2 was invalid because he did not refuse to take the breath test but rather was prevented from doing so by his asthma. As a consequence, he contends that the suspension was punitive and that his subsequent DUI conviction violated the Double Jeopardy Clause. For the reasons that follow, we affirm appellant's conviction.

I. FACTS

Appellant was arrested on September 10, 1997, for driving while under the influence of alcohol, his second such offense within five years. Because appellant had asthma, he submitted to a blood test rather than a breath test. Based on his inability to take a breath test, the Commonwealth administratively suspended his operator's license for seven days pursuant to Code § 46.2-391.2. Although the Notice of Administrative Suspension issued to appellant indicated he could challenge the suspension by filing a motion for review, the record contains no evidence indicating that appellant filed such a motion.

Following appellant's conviction on the underlying DUI charge in general district court, appellant appealed that conviction and raised a plea of former jeopardy. By written motion, he asserted that, because his asthma prevented him from taking the breath test, the suspension was "arbitrarily imposed without a legitimate administrative basis" and, therefore, that "the suspension clearly rises to the level of a punishment," rendering any further punishment for the DUI offense a double jeopardy violation.

The trial court ruled as follows:

I don't believe it was the intent of that statute to be thwarted by the fact that someone with legitimate and valid reasons could not present a breath sample and I think the statute is drafted in such a manner that your client did have the opportunity to appeal that administrative revocation.

I'm finding that the revocation was administrative in nature....

Following the denial of his motion, appellant stipulated that the evidence — including a certificate of analysis showing a blood alcohol level of 0.17 percent and a prior DUI conviction entered September 25, 1995 — was sufficient to convict him, and the trial court found him guilty.

II. ANALYSIS

Code § 46.2-391.2(A) provides as follows:

If a breath test is taken pursuant to § 18.2-268.2 or any similar ordinance of any county, city or town and the results show a blood alcohol content of 0.08 percent or more by weight by volume or 0.08 grams or more per 210 liters of breath, or the person refuses to submit to the breath test in violation of § 18.2-268.3 or any similar local ordinance, and upon issuance of a petition or summons, or upon issuance of a warrant by the magistrate, for a violation of §§ 18.2-51.4, 18.2-266 or § 18.2-268.3, or any similar local ordinance, the person's license shall be suspended immediately for seven days....

Code § 46.2-391.2(C) provides that "[a]ny person whose license or privilege to operate a motor vehicle has been suspended under subsection A may, during the period of the suspension, request the general district court... to review that suspension" and that "the court shall rescind the suspension" if "the person proves to the court by a preponderance of the evidence that the arresting officer did not have probable cause for the arrest, that the magistrate did not have probable cause to issue the warrant, or that there was not probable cause for issuance of the petition."

We previously have held that an administrative license suspension issued pursuant to Code § 46.2-391.2 is not "punishment within the meaning of the double jeopardy clause"; therefore, a DUI prosecution instituted after a license suspension does not constitute double jeopardy. See Tench v. Commonwealth, 21 Va.App. 200, 208, 462 S.E.2d 922, 925 (1995), cited with approval in Brame v. Commonwealth, 252 Va. 122, 130-32, 476 S.E.2d 177, 182-83 (1996). In reaching this conclusion, we relied on the test set out in United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989), in which the United States Supreme Court held that "the labels `civil' and `criminal' are not controlling" and that a civil sanction nevertheless may constitute punishment under certain circumstances. Tench, 21 Va.App. at 204-05, 462 S.E.2d at 924 (quoting Halper, 490 U.S. at 447, 109 S.Ct. at 1901).

In so doing, we noted that "the purpose of revoking a driver's license is `not to punish the offender but to remove from the highways an operator who is a potential danger to other users.'" Id. at 205, 462 S.E.2d at 924 (quoting Prichard v. Battle, 178 Va. 455, 463, 17 S.E.2d 393, 396 (1941)). We also examined the legislative history behind the enactment of the suspension statute, which provided that the legislature was "motivated by its desire to reduce `alcohol-related crashes, fatalities, and injuries.'" Id. (quoting S.J. Res. 172, 1989 Va. Acts). As a result, we held that the license suspension "is a remedial sanction because its purpose is to protect the public from intoxicated drivers and to reduce alcohol-related accidents" and, therefore, that it "does not constitute punishment for purposes of double jeopardy." Id. at 205-06, 462 S.E.2d at 924.

After our ruling in Tench, the United States Supreme Court reconsidered its holding in Halper, upon which our analysis in Tench was based. See Hudson v. United States, 522 U.S. 93, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997). In Hudson, the Supreme Court held that "Halper's deviation from longstanding double jeopardy principles was ill considered," and it "reaffirmed the previously established rule exemplified in United States v. Ward, 448 U.S. 242, 248-49[, 100 S.Ct. 2636, 2640-41, 65 L.Ed.2d 742] (1980)." Hudson, 522 U.S. at 96, 101, 118 S.Ct. at 491, 494. Under the longstanding double jeopardy principles outlined in Ward, determining "[w]hether a particular punishment is criminal or civil is, at least initially, a matter of statutory construction," and "[a] court must first ask whether the legislature `... indicated either expressly or impliedly a preference for one label or the other.'" Id. at 99, 118 S.Ct. at 493 (quoting Ward, 448 U.S. at 248, 100 S.Ct. at 2641). Because "the Halper Court bypassed [this] threshold question," Hudson, 522 U.S. at 101, 118 S.Ct. at 494, we did not expressly address this issue in Tench. However, our analysis in Tench, as outlined above, makes clear that the administrative license suspension is civil in nature.

Under the traditional double jeopardy analysis re-adopted in Hudson, even where the legislature shows an intent to create a civil penalty, the court must consider "`whether the statutory scheme was so punitive either in purpose or effect,' as to `transfor[m] what was clearly intended as a civil remedy into a criminal penalty.'" Hudson, 522 U.S. at 99,118 S.Ct. at 493 (citations omitted). Factors which "provide useful guideposts" in making this determination include:

(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.

Id. at 99-100, 118 S.Ct. at 493 (quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 567-68, 9 L.Ed.2d 644 (1963)) (internal quotation marks omitted). As the Court emphasized, however, "`these factors must be considered in relation to the statute on its face,' and `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, 118 S.Ct. at 493 (citations omitted).

As we decided in Tench, the legislature clearly intended for the administrative license suspension to be a civil sanction. We also hold, under the factors outlined above, that the statutory scheme is not so punitive as to transform "a civil remedy into a criminal penalty." See Powers v. Commonwealth, 426 Mass. 534, 694 N.E.2d 324 (1998) (holding that suspension of license following alcohol-related accident under statute permitting suspension based on driver's "immediate threat to public safety" is not punishment under Hudson for double jeopardy purposes); Keyes v. State, 708 So.2d 540 (Miss. 1998) (stating, as alternative ground for affirming conviction, that license suspension for not timely requesting trial after failing breath test does not constitute punishment for double jeopardy purposes under Hudson); State v. Howell, 254 Neb. 247, 575 N.W.2d 861 (1998) (applying Hudson to determine that license suspension for refusal to submit to chemical test is not punishment for purposes of double jeopardy); State v. Lomas, 114 Nev. 313, 955 P.2d 678 (1998) (applying Hudson to determine that suspension of license based on blood alcohol content exceeding legal limit is not punishment for purposes of double jeopardy); State v. Price, 333 S.C. 267, 510 S.E.2d 215 (1998) (applying Hudson to determine that license suspension for refusal to submit to chemical test is not punishment for purposes of double jeopardy).

First, the seven-day administrative...