State ex rel. Schwartz v. Kennedy

Decision Date18 October 1995
Docket NumberNo. 22904,22904
Citation1995 NMSC 69,904 P.2d 1044,120 N.M. 619
PartiesSTATE of New Mexico, ex rel., Robert M. SCHWARTZ, Second Judicial District Attorney, Petitioner, v. Hon. Roderick T. KENNEDY, Judge of the Metropolitan Court, Respondent, and Greg Baca and Ray Holguin, Real Parties in Interest.
CourtNew Mexico Supreme Court


¶1 In this case we answer the question whether a conviction for driving while intoxicated (DWI), NMSA 1978, § 66-8-102 (Repl.Pamp.1994), following the revocation of the defendant's driver's license in a civil proceeding for failing or refusing a chemical test for blood-alcohol content administered pursuant to the Implied Consent Act, NMSA 1978, §§ 66-8-105 to -112 (Repl.Pamp.1994), constitutes double jeopardy. We conclude that double jeopardy is not implicated by this process because an administrative driver's license revocation under the Implied Consent Act does not constitute "punishment" for the purposes of the Double Jeopardy Clause.


¶2 In November 1994 Greg Baca and Gary Holguin were arrested for DWI, in separate incidents, by officers of the Albuquerque Police Department. Baca submitted to a breath test to determine his blood alcohol content. Because Baca's test revealed that his blood alcohol content was in excess of .08 percent, the Motor Vehicle Division (MVD) of the New Mexico Department of Transportation revoked his driver's license pursuant to the Implied Consent Act, § 66-8-112(F). Holguin refused to submit to a chemical test to determine his blood alcohol content. Because Holguin refused to take the test, the MVD revoked his driver's license pursuant to the Implied Consent Act, § 66-8-112(F).

3. Baca and Holguin were each charged with aggravated DWI, § 66-8-102(D). 1 These charges were dismissed by the Honorable Roderick T. Kennedy of the Bernallilo County Metropolitan Court on the grounds that the Double Jeopardy Clauses of the United States and New Mexico Constitutions prohibit the State from seeking to punish individuals twice in separate proceedings for a single act of driving while intoxicated, once by revoking their driver's licenses in administrative proceedings under the Implied Consent Act, and a second time in criminal prosecutions under Section 66-8-102.

4. On behalf of the State, Robert Schwartz, the Second Judicial District Attorney, petitioned this Court to issue a writ of superintending control to Judge Kennedy (Respondent), directing him to withdraw his dismissals of the charges against Baca and Holguin. The question whether double jeopardy prohibits the State from subjecting an accused drunk driver to both an administrative driver's license revocation proceeding and a criminal prosecution was briefed for the State by the Attorney General, by Baca and Holguin as the real parties in interest, and by the New Mexico Criminal Defense Lawyer's Association as amicus curiae for Respondent.

5. The parties presented oral argument on the petition June 14, 1995, and that same day we issued a writ from the bench ordering Respondent to vacate the dismissals and to reinstate the cases on his docket. This opinion contains the Court's rationale for granting the writ of superintending control.


6. We first address the question why the Court entertained this petition for writ of superintending control. Baca and Holguin insist that the State should follow normal appellate procedure. Ordinarily the State would appeal Respondent's rulings to the district court. See SCRA 1986, 7-703 (Supp.1995). In the event of an unfavorable ruling by the district court, it could appeal to the Court of Appeals, see SCRA 1986, 12-102(B) (Cum.Supp.1995), and eventually petition for writ of certiorari, see SCRA 1986, 12-502 (Cum.Supp.1995). Baca and Holguin argue that their cases are more appropriately reviewed through appeals, and therefore contend that this Court should not grant immediate review by way of writ. See SCRA 1986, 12-504(C)(1) (Cum.Supp.1995) ("If it appears to a majority of the court that the petition [for writ of superintending control] ... concerns a matter more properly reviewable by appeal ... it may be denied without a hearing.").

7. This Court, under authority granted by the New Mexico Constitution, has "superintending control over all inferior courts." N.M. Const. art. VI, § 3. "The power of superintending control is the power to control the course of ordinary litigation in inferior courts." District Court v. McKenna, 118 N.M. 402, 405, 881 P.2d 1387, 1390 (1994) (quoting State v. Roy, 40 N.M. 397, 421, 60 P.2d 646, 661 (1936)), cert. denied, --- U.S. ----, 115 S.Ct. 1361, 131 L.Ed.2d 218 (1995). In Roy we observed:

The power of superintending control is an extraordinary power. It is hampered by no specific rules or means for its exercise. It is so general and comprehensive that its complete and full extent and use have practically hitherto not been fully and completely known and exemplified. It is unlimited, being bounded only by the exigencies which call for its exercise.

40 N.M. at 422, 60 P.2d at 662 (emphasis added) (quoting Annotation, Superintending Control and Supervisory Jurisdiction of the Superior Over the Inferior or Subordinate Tribunal, 51 L.R.A. 33, 111 (Burdett A. Rich ed. 1901)); see also McKenna, 118 N.M. at 405, 881 P.2d at 1390 ("[O]ur jurisdiction under superintending control seemingly is boundless....").

8. We have traditionally limited our exercise of the power of superintending control to exceptional circumstances, such as cases in which "the remedy by appeal seems wholly inadequate ... or where otherwise necessary to prevent irreparable mischief, great, extraordinary, or exceptional hardship[, or] costly delays and unusual burdens of expense." McKenna, 118 N.M. at 405, 881 P.2d at 1390 (alterations in original) (quoting State ex rel. Transcontinental Bus Serv., Inc. v. Carmody, 53 N.M. 367, 378, 208 P.2d 1073, 1080 (1949) (citation omitted)). Nonetheless, we may exercise our power of superintending control "even when there is a remedy by appeal, where it is deemed to be in the public interest to settle the question involved at the earliest moment." State ex rel. Townsend v. Court of Appeals, 78 N.M. 71, 74, 428 P.2d 473, 476 (1967); see also State Racing Comm'n v. McManus, 82 N.M. 108, 110, 476 P.2d 767, 769 (1970) (holding that questions "of great public interest and importance" may require this Court to use its power of superintending control).

9. The question whether the State is barred from prosecuting an individual for DWI (DWI) once the individual has been subjected to an administrative hearing for driver's license revocation based on the same offense as the criminal charge is one of great public importance requiring the use of our power of superintending control. New Mexico has a serious problem with drunk drivers, with one of the highest rates in the nation of DWI-related fatalities. Our citizens are obviously concerned by this dangerous situation, and through their elected representatives have established a system providing punishment for drunk drivers along with remedial measures for the protection of the population. Respondent's ruling has placed this system in doubt. Under Respondent's ruling, the State would essentially be unable to prosecute defendants charged with DWI because in almost every case the driver's license revocation hearing precedes the corresponding criminal prosecution. Trial courts throughout the state are in a position of uncertainty regarding how to proceed with DWI prosecutions, and some courts have chosen to follow Respondent's lead by dismissing such cases on double jeopardy grounds. In order to provide a prompt and final resolution to this troubling question we agreed to consider the petition for writ of superintending control.


10. New Mexico's two-tier approach to DWI cases came about as a result of federal efforts to encourage states to decrease the prevalence of drunk drivers on the nation's highways. In 1983, Congress established a program that allowed the Secretary of Transportation to "make grants to those States which adopt and implement effective programs to reduce traffic safety problems resulting from persons driving while under the influence of alcohol." 23 U.S.C. § 408(a) (1988). To qualify for a basic incentive grant, a State must adopt a program providing for the prompt suspension of the driver's license of any individual whom a law enforcement officer has probable cause to stop for an alcohol-related traffic offense, and who is determined by a chemical test to be intoxicated or who refuses to submit to such a chemical test. 23 C.F.R. § 1309.5(a)(1) (1995). The legislatures of thirty-seven states, perhaps inspired by the availability of federal funding for alcohol-traffic-safety programs, have provided for the administrative suspension or revocation of an individual's license to drive when the individual has been arrested for DWI and has either refused to take or failed a chemical test. Respondent, however, ruled that this scheme, in which individuals suspected of drunk driving are subject to having their driver's licenses revoked in an administrative proceeding, as well as criminal prosecution for the same underlying act, violates the Double Jeopardy Clauses of the Fifth Amendment of the United States Constitution and Article II, Section 15 of the New Mexico Constitution.

11. We note that Respondent is...

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