Johnson v. State

• Decision Date: 01 September 1992
• Docket Number: No. 942,942
• Citation: 622 A.2d 199,95 Md.App. 561
• Parties: Lewis David JOHNSON v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 561

95 Md.App. 561

622 A.2d 199

Lewis David JOHNSON v. STATE of Maryland.

No. 942, Sept. Term, 1992.

Court of Special Appeals of Maryland.

April 2, 1993.

Steven Scheinin, Towson, for appellant

Mary Ellen Barbera, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore and Joseph I. Cassily, State's Atty. for Harford County of Bel Air, on the brief), for appellee.

Argued before BLOOM, WENNER and DAVIS, JJ.

DAVIS, Judge.

This is an appeal from a pre-trial order denying a Motion to Dismiss on the ground of double jeopardy. Lewis David Johnson, appellant, was charged in the District Court of Maryland for Harford County with driving while intoxicated, driving while under the influence of alcohol, failure to drive within a single lane, and violation of license restrictions. Pursuant to appellant's prayer for a jury trial, the case was removed to the Circuit Court for Harford County. A Motion to Dismiss the charges of driving while intoxicated and driving while under the influence of alcohol was made by appellant on the ground of double jeopardy. A hearing on the motion was held on April 2, 1992 before the Honorable Cypert O. Whitfill. On May 29, 1992, the court denied the motion in a Memorandum Opinion. A Notice of Appeal from the denial was filed on June 19, 1992. ¹

Appellant presents the following question for our review:

Whether a conviction for driving while intoxicated and under the influence of alcohol pursuant to Md.Transp.Code Ann. [TR] § 21-902 following a mandatory suspension of a driver's license pursuant to TR § 16-205.1 constitutes double jeopardy.

For the reasons set forth herein, we shall affirm the denial of appellant's Motion to Dismiss and shall remand the case for trial.

FACTS

At the hearing on the Motion to Dismiss, Corporal Henry Trabert of the Aberdeen Police Department testified that on November 3, 1990 at about 9:57 p.m. the Department received an anonymous call that a drunk driver was operating a tan Buick in the area of a 7-11 store on Bush Chapel Road in Aberdeen. The officer went to the area and around 10:10 p.m. observed appellant's vehicle leaving the store's parking lot. Trabert followed the vehicle and "observed the vehicle cross the solid double center line twice. The second time the vehicle crossed the center line, half of the vehicle was in the northbound lane."

Trabert stopped the vehicle and asked appellant for his license and registration. At that time, the officer "observed the smell of an alcoholic beverage coming from his breath. He also had red, glassy eyes." Appellant was then asked to exit the vehicle to perform three field sobriety tests: recitation of the alphabet, finger to nose, and walk a straight line. Appellant stated he could not recite the alphabet because he had never learned it, was only able to touch his finger, according to Trabert, "to the area between his nose and upper lip," and stated he could not walk a straight line because "he had injured his right leg." Following the tests, the officer checked appellant's license through the Motor Vehicle Administration and found appellant in violation of a court-ordered license restriction, directing him not to drive or attempt to drive a motor vehicle with Pursuant to TR § 16-205.1, appellant was advised of his right to take or refuse a breathalyzer test and the possible sanctions based on his decision. Appellant elected to take the test. The parties stipulated at the motion's hearing that the test revealed appellant's alcohol concentration to be 0.12 percent. Appellant's driver's license was then confiscated, and he was issued a temporary driver's license.

                alcohol in his blood.   Appellant was then placed under arrest
                

Appellant was charged by the police officer with driving while intoxicated and/or under the influence of alcohol, driving with alcohol in his blood in violation of a court-ordered license restriction, and failure to drive in a single lane. These offenses are set forth in TR §§ 21-902(a) and (b), 16-113(g) and 21-309(b), respectively.

On December 27, 1990 a hearing was conducted before an Administrative Law Judge in compliance with Md.State Gov't Code Ann. §§ 10-201 through 10-214 inclusive and TR §§ 12-202 through 12-208 inclusive. The judge determined that the arresting officer had "reasonable cause" to stop appellant. The judge also determined that appellant was employed, "does not drive in [the] course of employment," and lacks "public transportation to place of employment." The judge then concluded that appellant was subject to the provisions of TR § 16-205.1 and issued appellant a "restricted license for employment purposes only for 60 days."

On January 28, 1991 appellant appeared on the three charges in the District Court of Maryland for Harford County, at which time a jury trial was prayed, and the case was removed to the Circuit Court for Harford County.

LEGAL ANALYSIS

Appellant contends that the State's attempt to prosecute him for driving while intoxicated following the suspension of his license at an administrative hearing constitutes multiple punishment for the same offense and violates the prohibition against double jeopardy as discussed in United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989). The State counters that the administrative hearing did not place appellant in jeopardy, a necessary prerequisite of double jeopardy. The State argues that the hearing was merely a civil proceeding and that there is "no constitutional or common law double jeopardy concern raised by the State's prosecuting [appellant] on the pending traffic charges."

"The prohibition against double jeopardy, applicable in Maryland both as a common law principle and under the Fifth Amendment to the United States Constitution, prohibits successive prosecutions for the same offense as well as multiple punishment for the same offense." Parojinog v. State, 282 Md. 256, 260, 384 A.2d 86 (1978), citing Newton v. State, 280 Md. 260, 263-64, 373 A.2d 262 (1977). Specifically, "[t]he Double Jeopardy Clause of the Fifth Amendment protects against 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." Randall Book Corp. v. State, 316 Md. 315, 323, 558 A.2d 715 (1989); North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). Federal double jeopardy principles are controlling in determining whether a defendant has been placed twice in jeopardy in violation of the federal Constitution. Newton, 280 Md. at 263, 373 A.2d 262.

It is undisputed that the first two protections under the Double Jeopardy Clause are inapplicable to the instant appeal. Appellant is not facing a second prosecution after a prior conviction or acquittal. Rather, we are faced with the third protection under the provision--whether appellant is being exposed to multiple punishment. See United States v. Sanchez-Escareno, 950 F.2d 193, 198 (5th Cir.1991).

"Historically, the prohibition against multiple punishments was thought to arise only in criminal cases." Id. "It was generally recognized that the government has both an established right to impose criminal punishment and to extract civil damages. Hence, earlier cases noted this distinction and, for various reasons, refused to figure civil penalties into the double jeopardy equation." Id.; see Helvering v. Mitchell, 303 U.S. 391, 399, 58 S.Ct. 630, 633, 82 L.Ed. 917 (1938) (Congress may impose criminal and civil sanctions and since sanction imposed was civil, double jeopardy was inapplicable).

The decision in the recent Supreme Court case, United States v. Halper, supra, however, has given defense attorneys a new rack on which to hang their double jeopardy hat. In that case, Irwin Halper was convicted of submitting sixty-five false claims to the government for reimbursement of Medicare-covered services in violation of the federal criminal false claims statute, 18 U.S.C. § 287, and was sentenced to two years in prison and fined $5,000. Halper, 490 U.S. at 438, 109 S.Ct. at 1896. The Government then brought a claim against Halper under the civil False Claims Act, 31 U.S.C. §§ 3729-3731, seeking civil penalties, the most severe being a $2,000 fine for each false claim filed, for a total statutory penalty of more than $130,000. Id. The district court concluded that the penalty under the False Claims Act, in addition to that imposed in the criminal conviction, violated the Double Jeopardy Clause, declaring that "the total amount necessary to make the Government whole bears no rational relation to the $130,000 penalty the Government seeks." United States v. Halper, 660 F.Supp. 531, 533 (S.D.N.Y.1987).

On direct appeal, the Supreme Court agreed with the district court, holding that

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.

Halper, 490 U.S. at 448-49, 109 S.Ct. at 1902. "Simply put, a civil as well as a criminal sanction constitutes punishment when the sanction as applied in the individual case serves the goals of punishment." Id. at 448, 109 S.Ct. at 1901-02. The Court then went on to announce what it called the

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. The rule is one of reason: Where a defendant previously has sustained a criminal penalty and the civil penalty sought in the subsequent proceeding bears no rational relation to the goal of compensating the Government for its loss, but rather appears to qualify as "punishment" in the plain meaning of the word, then the defendant is entitled to an accounting of the...