People v. Olson

• Decision Date: 18 April 1996
• Docket Number: No. 94CA1716,94CA1716
• Citation: 921 P.2d 51
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Andrew J. OLSON, Defendant-Appellant. . V
• Court: Colorado Court of Appeals

Page 51

921 P.2d 51

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Andrew J. OLSON, Defendant-Appellant.

No. 94CA1716.

Colorado Court of Appeals,

Div. V.

April 18, 1996.

Rehearing Denied June 27, 1996.

Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, and Beverly Fulton, Assistant Attorney General, Denver, for Plaintiff-Appellee.

David J. Akerson and Joseph Saint-Veltri, Denver, for Defendant-Appellant.

Opinion by Judge CASEBOLT.

Defendant, Andrew J. Olson, appeals the judgment of conviction entered after he was found guilty of driving while his ability was impaired by consumption of alcohol (DWAI), speeding, possession of a controlled substance, possession of marijuana, and possession of drug paraphernalia. Defendant's sole contention on appeal is that his conviction is barred by principles of double jeopardy because his driver's license was revoked in a civil proceeding under § 42-2-122.1, C.R.S. (1993 Repl.Vol. 17) for refusing to take a test for blood alcohol content pursuant to the Express Consent law, § 42-4-1301, C.R.S. (1995 Cum.Supp.).

At present, there are no Colorado appellate opinions addressing this question, although the supreme court currently has a similar issue before it in Deutschendorf v. State of Colorado, (Colo. No. 95SC531). Upon analysis of United States Supreme Court rulings and related law, we conclude that double jeopardy is not implicated by this process because an administrative driver's license revocation for failure to submit to a breath or blood alcohol test does not constitute "punishment" for the purposes of the Double Jeopardy Clause. Accordingly, we affirm.

I.

Initially, we reject the People's argument that the record on appeal does not contain sufficient information regarding the administrative revocation of defendant's driver's license and is therefore inadequate to determine the double jeopardy issue.

C.A.R. 10 governs designation of the appellate record. The purpose of the rule is to ensure that an appellate court will be given sufficient information to arrive at a just and reasoned decision. People in Interest of J.L.P., 870 P.2d 1252 (Colo.App.1994). The record need not be all-inclusive; rather, it will be deemed adequate if it contains sufficient information to enable the court to resolve the issues presented. City of Aurora v. Webb, 41 Colo.App. 11, 585 P.2d 288 (1978).

Here, the record contains testimony from a police officer indicating that defendant had refused to take a breath or blood alcohol test and this evidence is further confirmed by the arrest report. The record also contains a copy of defendant's driver history that documents the initial express consent license revocation and the later mandatory revocation, apparently after a hearing.

Accordingly, the record is adequate to determine that defendant's license was revoked for failure to take a breath or blood alcohol test.

II.

Next, the People assert that defendant has waived his double jeopardy argument because he failed to raise it in the trial court. We disagree.

Because the issue was not raised in the trial court, we apply a plain error standard of review. When plain error affecting substantial rights appears, an appellate court may address the error even though it is raised for the first time on appeal. Crim.P. 52(b).

In determining whether an issue involves plain error, we review the entire record to determine whether the asserted error so undermined the fundamental fairness of the trial itself as to cast serious doubt on the reliability of the judgment of conviction. Wilson v. People, 743 P.2d 415 (Colo.1987).

Here, defendant asserts that his conviction was unconstitutionally obtained in violation of the Fifth Amendment and Colo. Const. art. II, § 18. Such an error would be cognizable on appeal as plain error. See People v. Grant, 40 Colo.App. 46, 571 P.2d 1111 (1977) (plain error test applied in resolving double jeopardy claim). Accordingly, we will address the merits of defendant's contention.

III.

Defendant asserts that his criminal conviction is barred by principles of double jeopardy. We disagree.

The Double Jeopardy Clause of the Fifth Amendment protects against three distinct types of governmental action: a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and imposition of multiple punishments for the same offense. United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989). It is the third category that is at issue here.

In order to establish for double jeopardy purposes that multiple punishments are being imposed, a defendant must show that: (1) he or she is being subjected to separate proceedings; (2) the conduct precipitating the separate proceedings consisted of one offense; and (3) the penalties or sanctions in each of the proceedings may be considered "punishment." See Luk v. Commonwealth, 421 Mass. 415, 658 N.E.2d 664 (1995).

The dispositive portion of this test in the situation here is whether the sanctions in the administrative license suspension imposed under § 42-2-122.1, C.R.S. (1994 Repl.Vol. 17) may be considered to be "punishment."

In United States v. Halper, supra, the defendant had previously been convicted of federal criminal fraud and thereafter was found civilly liable to the United States for the submission of false claims under a statute providing for a civil penalty plus double the amount of damages sustained by the government. The defendant claimed that the proceedings were barred by the Double Jeopardy Clause.

The Court held that the characterization of a statute as civil or criminal was not dispositive of whether the penalty imposed thereby was "punishment." Rather, it stated that a civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, constitutes punishment. Thus, concluding that the Double Jeopardy Clause may apply in civil proceedings, the court held that whether double jeopardy bars a second proceeding requires a particularized assessment of the penalty imposed and the purposes that the penalty may fairly be said to serve. See also Austin v. United States, 509 U.S. 602, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993) (in forfeiture action contemporaneous with criminal drug charge, Court concluded that forfeiture constituted payment to a sovereign as "punishment" for an offense and, as such, was subject to the limitations of the Eighth Amendment's excessive fines clause).

In Department of Revenue v. Kurth Ranch, 511 U.S. 767, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994), the defendants had used their family ranch to cultivate marijuana and were criminally prosecuted and convicted for possessing or conspiring to sell the drug. The State of Montana thereafter filed suit to collect its state tax on illegal drugs.

The Court determined that the drug tax was "punishment" because its imposition was conditioned on commission of a crime, the taxation rate was extreme, the purpose of the statute was solely to deter, the tax was imposed only after the taxpayer had been arrested for the precise conduct that gave rise to the tax obligation in the first place, and the tax was levied on goods that the taxpayer neither owned nor possessed when the tax was imposed.

Relying upon these principles, defendant argues here that, because a license revocation for failure to take an alcohol test deters and punishes the driver, license revocation therefore is "punishment" for purposes of double jeopardy analysis. We reject this reasoning.

In United States v. Halper, supra, the Court noted that in determining whether the legislative purpose in enacting a statutory provision is remedial or punitive, a court must look to the purposes that the sanctions serve, rather than any resulting effect of the sanction upon a defendant. The Halper Court stated that "whether a sanction constitutes punishment is not determined from the defendant's perspective, as even remedial sanctions carry the 'sting of punishment.' " United States v. Halper, supra (fn. 7). See also State ex rel. Schwartz v. Kennedy, 120 N.M. 619, 904 P.2d 1044 (1995) (rejecting argument that Halper stands for proposition that any administrative sanction which has a deterrent effect is punishment for double jeopardy purposes).

Here, § 42-2-122.1, C.R.S. (1993 Repl.Vol. 17) governs revocation of driver's licenses because of failure to submit to a breath or blood alcohol test. It provides, in pertinent part:

(1) The purposes of this section are:

(a) To provide safety for all persons using the highways of this state by quickly revoking the driver's license of any person who has shown himself to be a safety hazard by driving with an excessive amount of alcohol in his body and any person who has refused to submit to an analysis....

....

(c) ... to prevent the relicensing of any person until the department is satisfied that his alcohol problem is under control and he no longer constitutes a safety hazard to other highway users. (emphasis added)

Thus, the sanction of revocation is intended to serve the remedial purpose of fostering the safety of the general public who use the highways of the state. See Augustino v. Department of Revenue, 193 Colo. 273, 565 P.2d 933 (1977) (purpose of mandatory revocation penalty is to encourage the voluntary taking of a blood alcohol test which assists in prosecution of drunken driver and the reduction of accidents, injuries, and deaths); DeScala v. Motor Vehicle Division, 667 P.2d 1360 (Colo.1983) (revocation is means by which implied consent statute encourages drivers to cooperate with enforcement of traffic safety by submitting to chemical testing); Campbell v. Department of Revenue, 176 Colo. 202, 491 P.2d 1385 (1971) (revocation of driver's license because of prior driving convictions is not intended...