Powers v. Com.

• Decision Date: 28 January 1998
• Citation: 694 N.E.2d 324,426 Mass. 534
• Parties: Paul W. POWERS v. COMMONWEALTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 324

694 N.E.2d 324

426 Mass. 534

Paul W. POWERS v. COMMONWEALTH.

Supreme Judicial Court of Massachusetts,

Norfolk.

Argued Nov. 3, 1997.

Decided Jan. 28, 1998.

Paul E. Troy, Boston, for Paul W. Powers.

Robert C. Cosgrove, Assistant District Attorney, for the Commonwealth.

Before WILKINS, C.J., and ABRAMS, LYNCH, GREANEY, MARSHALL and IRELAND, JJ.

LYNCH, Justice.

This appeal arises out of indictments charging Paul W. Powers (defendant) with multiple violations of G.L. c. 90, §§ 24 and 24L, based on his involvement in a serious motor vehicle accident. The defendant appeals from a ruling by a single justice of this court denying relief from a trial judge's denial of his motion to dismiss and denying leave to appeal from the judge's denial of his motion to suppress. The defendant did not comply with the requirements of S.J.C. Rule 2:21, 421 Mass. 1303 (1995), but instead proceeded in the regular appellate course, even though the denial of the defendant's motions to dismiss is an interlocutory matter and at first glance falls within the rubric of S.J.C. Rule 2:21. However, because the defendant's motion to dismiss is based on a double jeopardy claim, successful appellate review after conviction would not provide adequate relief. The defendant may pursue his appeal based on the double jeopardy issue pursuant to the regular appellate process. See McGuinness v. Commonwealth, 423 Mass. 1003, 667 N.E.2d 818 (1996); Costarelli v. Commonwealth, 374 Mass. 677, 680, 373 N.E.2d 1183 (1978). We therefore consider his double jeopardy claim. ¹

1. Facts. On July 21, 1995, at approximately 5:06 P.M., the defendant's truck veered into the opposite lane of traffic, struck a motorcycle carrying a driver and a passenger, and then hit another vehicle. As a result, the defendant and three other individuals sustained serious bodily injuries. The defendant was taken to a hospital immediately after the accident.

At the accident scene the police saw an empty beer can on the road next to the defendant's driver side door and several additional beer cans in his truck. ² The police report indicated "[c]onsumption of alcohol beverages by [the defendant was] a major contributing factor" of the accident. The police questioned the defendant at the hospital at 6:30 P.M. on July 21, 1995. They did not attempt to obtain a blood sample, but the hospital personnel had drawn one at 6:10 P.M. for routine purposes.

Two days later, the police interviewed the defendant again after he had been released from the hospital. The defendant told them that, during the afternoon hours before the accident, he had been at a cookout where he had consumed beer. On July 26, 1995, the Registrar of Motor Vehicles (registrar) notified the defendant that his driver's license was indefinitely revoked pursuant to G.L. c. 90, § 22(a), because the accident rendered him an immediate threat to public safety. On October 18, 1995, a grand jury returned three indictments charging violation of G.L. c. 90, § 24L (1) (operating recklessly causing serious bodily injury while driving under the influence of intoxicating liquor); three indictments charging violation of G.L. c. 90, § 24L (2) (operation while under the influence of intoxicating liquor causing serious bodily injury); one indictment charging violation of G.L. c. 90, § 24(1) (operating a motor vehicle while under the influence of intoxicating liquor); one indictment charging violation of G.L. c. 90, § 24(2)(a) (driving negligently so as to endanger); and one indictment charging violation of G.L. c. 85, § 2 (failing to drive safely within lane of traffic). ³

The defendant argues that the prosecution of the offenses under G.L. c. 90, §§ 24L and 24, would subject him to a second punishment for the same crime in violation of the double jeopardy clause of the Fifth Amendment to the United States Constitution and the common law of the Commonwealth. ⁴

General Laws c. 90, § 22 (a), allows the registrar to suspend an operator's license without a hearing "whenever the holder thereof has committed a violation of the motor vehicle laws of a nature which would give the registrar reason to believe that continuing operation by such holder is and will be so seriously improper as to constitute an immediate threat to the public safety." That section further provides:

"Upon such suspension or revocation, the registrar shall forthwith send written notice thereof to the licensee or registrant ... specify[ing] the time and place of the violation. The registrar may order the license of such operator or the registration certificate and number plates to be delivered to him ... and neither ... shall be reissued unless, upon examination or investigation, or after a hearing, the registrar determines that the operator shall again be permitted to operate. Said operator shall be entitled to a hearing within thirty days of the suspension or revocation...."

The defendant chose not to exercise his right to a hearing.

2. Double jeopardy. The double jeopardy clause of the Fifth Amendment prevents multiple punishments for the same offense. ⁵ Luk v. Commonwealth, 421 Mass. 415, 419, 658 N.E.2d 664 (1995), citing North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076-2077, 23 L.Ed.2d 656 (1969). In order to fall within the multiple punishment ban the defendant must demonstrate that (1) his license suspension imposed pursuant to G.L. c. 90, § 22(a), was "punishment" (2) the indefinite suspension resulted from the "same offense" for which he is subject to criminal prosecution; and (3) the administrative suspension and the criminal case are "separate proceedings." Luk v. Commonwealth, supra, citing Department of Revenue of Mont. v. Kurth Ranch, 511 U.S. 767, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994).

The defendant and the Commonwealth agree for double jeopardy purposes that the pending criminal charges constitute a "separate proceeding" from the indefinite license revocation ordered pursuant to G.L. c. 90, § 22(a), and that both proceedings arise out of the "same offense." ⁶ Thus, our analysis centers on whether the indefinite license revocation under G.L. c. 90, § 22 (a), constitutes a "punishment" under double jeopardy jurisprudence.

Since our decisions in Luk v. Commonwealth, supra, and Leduc v. Commonwealth, 421 Mass. 433, 657 N.E.2d 755 (1995), the Supreme Court of the United States has clarified the proper analysis for determining whether civil sanctions constitute punishment. Hudson v. United States, --- U.S. ----, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997), ⁷ dictates that a determination "[w]hether a particular punishment is criminal or civil is, at least initially, a matter of statutory construction." Id. at ----, 118 S.Ct. at 493. ⁸ Accordingly, we must first ask whether the Legislature, "in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other." Id., quoting United States v. Ward, 448 U.S. 242, 248, 100 S.Ct. 2636, 2641, 65 L.Ed.2d 742 (1980). An examination of the statute demonstrates that the Legislature intended G.L. c. 90, § 22 (a), for the purposes of public safety rather than punishment.

General Laws c. 90, § 22(a), is one of several motor vehicle laws aimed at preserving the public safety. See Leduc v. Commonwealth, supra at 436, 657 N.E.2d 755; Luk v. Commonwealth, supra at 423, 658 N.E.2d 664; Commonwealth v. Dowler, 414 Mass. 212, 215 n. 6, 606 N.E.2d 1320 (1993).

In Luk v. Commonwealth, supra at 426-427, 658 N.E.2d 664, we noted that the purpose of a driver's license revocation is "to protect the public from future harm by depriving the unsafe or irresponsible driver of his or her authority to continue to operate a motor vehicle." Because its main purpose is public safety rather than punishment, revocation of a driver's license has been consistently characterized as nonpunitive and therefore civil. Id. See Leduc v. Commonwealth, supra.

Hudson v. United States, supra at ----, 118 S.Ct. at 493, quoting United States v. Ward, supra at 248-249, 100 S.Ct. at 2641-2642, then requires us to determine whether the statutory scheme was "so punitive either in purpose or effect" so as to "transfor[m] what was clearly intended as a civil remedy into a criminal penalty." Id., quoting Rex Trailer Co. v. United States, 350 U.S. 148, 154, 76 S.Ct. 219, 222-223, 100 L.Ed. 149 (1956). The Court stated that "only the clearest proof" will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty. Id. ⁹

We have determined that the license suspension under G.L. c. 90, § 24(1) (f ) (1), was "not overwhelmingly disproportionate to its remedial purposes or the harm caused society by drunk drivers." Luk v. Commonwealth, supra at 425, 658 N.E.2d 664. Similarly, we have affirmed that a driver's license may be revoked when the registrar believes that failure to revoke an operator's license will compromise public safety. Id. at 428, 658 N.E.2d 664.

The defendant offers nothing to demonstrate that the statute is clearly punitive, much less "the clearest proof" that would lead us to conclude that a license revocation is "so punitive in form and effect as to render [it] criminal despite [the Legislature's] intent to the contrary." Hudson v. United States, supra at ----, 118 S.Ct. at 495, quoting United States v. Ursery, 518 U.S. 267, 289-291, 116 S.Ct. 2135, 2148, 135 L.Ed.2d 549 (1996). The "revocation of a privilege voluntarily granted," such as an operator's license, "is characteristically free from the punitive criminal element." Id. See Luk v. Commonwealth, supra at 423, 658 N.E.2d 664, citing Helvering v. Mitchell, 303 U.S. 391, 399, 58 S.Ct. 630, 633, 82 L.Ed. 917 (1938). ¹⁰

In spite of the foregoing the defendant argues that, because the revocation of his license was for an indefinite period, it constitutes punishment because the suspension has the potential of lasting longer than any other suspension under...