Luk v. Com.

Decision Date27 November 1995
Citation658 N.E.2d 664,421 Mass. 415
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

George F. Gormley, Cambridge (John D. Colucci with him), for the plaintiff.

David E. Edmonds, Assistant District Attorney, for the Commonwealth.

Scott Harshbarger, Attorney General, & Gail M. McKenna, Assistant Attorney General, for the Attorney General, amicus curiae, submitted a brief.


ABRAMS, Justice.

Anne W. Luk's driver's license was suspended for 180 days because she refused to take a breathalyzer test. 1 The Commonwealth also charged her with operating a motor vehicle while under the influence of intoxicating liquor (OUI). See G.L. c. 90, § 24(1)(a )(1) (1994 ed.). Luk moved to dismiss the OUI complaint asserting that to prosecute her on that complaint would violate the prohibition against double jeopardy contained in the Fifth Amendment to the United States Constitution, 2 as well as the common and statutory law of the Commonwealth. 3 The trial judge denied Luk's motion to dismiss. The judge ruled that Luk's refusal to take a breathalyzer test was a matter that would not be relitigated at the criminal trial and therefore double jeopardy principles did not apply.

Pursuant to G.L. c. 211, § 3 (1994 ed.), Luk correctly sought relief from a single justice of this court. See, e.g., Kater v. Commonwealth, 421 Mass. 17, 19, 653 N.E.2d 576 (1995); Cramer v. Commonwealth, 419 Mass. 106, 107 n. 1, 642 N.E.2d 1039 (1994); Koonce v. Commonwealth, 412 Mass. 71, 72, 587 N.E.2d 220 (1992). See also S.J.C.Rule 2:21, post 1303 (1995) (effective Nov. 15, 1995). The single justice denied relief. Luk appeals. We affirm the judgment of the single justice.

I. Facts. At approximately 2:20 A.M. on December 10, 1994, Wayland police Sergeant Daniel Sauro witnessed a red two-door Honda automobile drive off the road, ride over grass, and strike a stone wall. Luk was the sole occupant of the vehicle. Sauro approached the vehicle and determined that Luk appeared intoxicated. 4 He asked Luk to take a breathalyzer test. Luk refused. The officer confiscated her license in accordance with § 24(1)(f )(1). 5 Luk was issued a fifteen-day temporary driver's license and informed of her right to a hearing before the Registrar of Motor Vehicles (registrar).

On January 7, 1995, the registrar held a hearing regarding the suspension of Luk's license. The hearing officer upheld the suspension. Luk sought review in the District Court pursuant to G.L. c. 90, § 24(1)(g ). The District Court, after hearing, affirmed the decision of the registrar. Luk filed a claim of appeal.

On December 12, 1994, Luk was charged in the Framingham Division of the District Court Department with operating a motor vehicle while under the influence of intoxicating liquor. Luk filed a motion to dismiss asserting that a criminal prosecution would be in violation of double jeopardy principles. After her motion was denied by the trial judge and the single justice, Luk admitted to sufficient facts to warrant a finding of guilty. 6 The matter was continued without a finding until April 17, 1996. The judge required Luk to complete a driver alcohol education program pursuant to G.L. c. 90, § 24D (1994 ed.), and suspended her driver's license for forty-five days. See note 7, infra.

On April 28, 1995, Luk received notice from the registrar of an additional two-year license suspension because she had previously been convicted under G.L. c. 90, § 24. On June 7, 1995, the Board of Appeal on Motor Vehicle Liability Policies and Bonds affirmed the registrar's decision to suspend Luk's license for the additional two-year period. 7

II. Double jeopardy. The double jeopardy clause of the Fifth Amendment to the United States Constitution protects against three distinct abuses: 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. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). 8 It is the third protection that is at issue here. In order to show multiple punishments for double jeopardy purposes, a defendant must show the following three things: first, the administrative license suspension (ALS) imposed on her pursuant to c. 90, § 24(1)(f )(1), is "punishment"; second, the postrefusal license suspension results from the "same offense" for which she is subsequently being criminally punished; and third, the administrative license suspension and criminal case are "separate proceedings." Department of Revenue of Mont. v. Kurth Ranch, 511 U.S. 767, ----, 114 S.Ct. 1937, 1945, 128 L.Ed.2d 767 (1994).

A. Case law. Historically, previous criminal prosecution has not been considered a bar to subsequent civil action unless the objective of the civil action was punishment. 9 See Helvering v. Mitchell, 303 U.S. 391, 398-399, 58 S.Ct. 630, 632-633, 82 L.Ed. 917 (1938). It was constitutionally permissible for a State to impose both criminal and civil sanctions for the same act or omission; the double jeopardy clause required only that the State not punish nor attempt to punish twice for the same offense. Mitchell, supra at 399, 58 S.Ct. at 633. Because it is not disputed that the criminal prosecution in this case resulted in punishment, the question is whether the ALS pursuant to c. 90, § 24(1)(f )(1), barred that punishment as an impermissible second punishment for the offense of OUI.

In Mitchell, supra, the Supreme Court first announced the "statutory construction" test for determining whether a civil sanction is "punishment." This test required that the Court ask two questions. "First, we have set out to determine whether Congress, in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other.... Second, where Congress has indicated an intention to establish a civil penalty, we have inquired further whether the statutory scheme was so punitive either in purpose or effect as to negate that intention." United States v. Ward, 448 U.S. 242, 248-249, 100 S.Ct. 2636, 2641, 65 L.Ed.2d 742 (1980). With regard to the second inquiry, the Court has stated that "only the clearest proof could suffice to establish the unconstitutionality of a statute on such a ground." Flemming v. Nestor, 363 U.S. 603, 617, 80 S.Ct. 1367, 1376, 4 L.Ed.2d 1435 (1960). The statutory construction test was thus very deferential to the Legislature.

The appropriate analysis was redefined in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169, 83 S.Ct. 554, 567-568, 9 L.Ed.2d 644 (1963). 10 Kennedy listed seven factors to consider in determining if a statute imposes punishment. The factors were (1) whether the sanction involves an affirmative disability or restraint; (2) whether it has historically been regarded as 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 be rationally connected is assignable for it; and (7) whether it appears excessive in relation to the alternative purpose assigned. The Kennedy factors are useful, although neither exhaustive nor dispositive in double jeopardy analysis. 11

In United States v. Halper, 490 U.S. 435, 448, 109 S.Ct. 1892, 1901-1902, 104 L.Ed.2d 487 (1989), the United States Supreme Court determined that the double jeopardy clause requires a "particularized assessment of the penalty imposed and the purposes that the penalty may fairly be said to serve." The Supreme Court held that the statutory construction test is "not well suited to the context of the 'humane interests' safeguarded by the Double Jeopardy Clause's proscription of multiple punishments." Id. at 447, 109 S.Ct. at 1901. Under Halper, the labels "civil" and "criminal" are not dispositive. Id. Civil sanctions are punishment only if they cannot be explained without reference to a retributive or deterrent purpose. Double jeopardy is not implicated if the sanctions can be entirely explained by a nonpunitive purpose. 12 Halper announced "a rule for the rare case." Halper, supra at 449, 109 S.Ct. at 1902. It cautioned that double jeopardy should only be found in those cases where the civil sanction imposed for the same actions on which a criminal penalty has previously been imposed is overwhelmingly disproportionate to remedial aims. Id.

Post-Halper, the Supreme Court decided Department of Revenue of Mont. v. Kurth Ranch, supra. Kurth Ranch involved the constitutionality of a drug tax imposed after the conclusion of a prosecution against the criminal defendants based on possession of the same drugs. Although the Supreme Court relied on some of the factors from Kennedy and Halper 13 in invalidating the drug tax, it expressly limited Kurth Ranch to tax cases. Kurth Ranch, supra at ----, 114 S.Ct. at 1948. See State v. Toriello, 71 Ohio Misc.2d 81, 84, 654 N.E.2d 1075 (1995) ("The court finds that the facts and circumstances of Kurth Ranch are distinguishable from an ALS followed by a criminal prosecution for [an OUI] offense").

With this backdrop, we proceed to analyze the Massachusetts administrative license suspension statute under the above principles of double jeopardy.

B. The Massachusetts administrative license suspension statute: G.L. c. 90, § 24(1)(f)(1). In Massachusetts, one's right to operate a motor vehicle is a privilege voluntarily granted. See Roberto v. Department of Pub. Utils., 262 Mass. 583, 588, 160 N.E. 321 (1928) ("The certificate [to operate motor vehicle on specified route] was a privilege. It was neither a contract nor property, and its revocation deprived the petitioner of no vested rights"). Continued possession of...

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