State v. Arbon

• Decision Date: 05 January 1996
• Docket Number: No. 950277-CA,950277-CA
• Parties: STATE of Utah, Plaintiff and Appellee, v. Bret Ray ARBON, and Kimberly Sue Milligan, Defendants and Appellants.
• Court: Utah Court of Appeals

Page 1270

909 P.2d 1270

STATE of Utah, Plaintiff and Appellee, v. Bret Ray ARBON, and Kimberly Sue Milligan, Defendants and Appellants.

No. 950277-CA.

Court of Appeals of Utah.

Jan. 5, 1996.

Jay D. Edmonds, Salt Lake City, and John Blair Hutchison, Ogden, for Appellants.

Todd A. Utzinger and Jan Graham, Salt Lake City, for Appellee.

Before DAVIS, BENCH and JACKSON, JJ.

OPINION

JACKSON, Judge:

Defendants Bret R. Arbon and Kimberly S. Milligan bring this interlocutory appeal to challenge the trial court's denial of their motions to dismiss criminal prosecutions against them for driving under the influence (DUI) in violation of Utah Code Ann. § 41-6-44 (1993). We affirm.

FACTS

In separate instances, defendants were arrested for DUI. Both failed chemical tests given after arrest, triggering the application of Utah Code Ann. § 53-3-223 (1994), under which their driver's licenses were suspended by the Driver License Division in administrative proceedings. Later, criminal charges for DUI were filed against each defendant. Defendants sought dismissal of their respective cases, arguing they had already been "punished" by having their licenses suspended. Thus, they asserted, the Double Jeopardy Clause of the Fifth Amendment barred further proceedings that could result in additional punishment.

The trial court rejected defendants' arguments and denied their respective motions to dismiss their cases. Defendants each brought an interlocutory appeal challenging the denial of their motions. This court consolidated their appeals.

ISSUE

The sole issue on appeal is whether, under the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution, an administrative driver's license suspension after a DUI arrest is "punishment" that precludes a second punishment in a criminal proceeding. This is a legal question of constitutional interpretation; thus, we review the trial court's conclusion for correctness. See State v. Davis, 903 P.2d 940, 943 (Utah App.1995).

ANALYSIS

The Fifth Amendment provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const. amend. V. This mandate extends to the states via the Fourteenth Amendment, Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 2062, 23 L.Ed.2d 707 (1969), and forbids, among other things, multiple punishments imposed in separate proceedings for the same offense, State v. Davis, 903 P.2d 940, 943 (Utah App.1995). We do not address the "separate proceedings" and "same offense" criteria, but consider whether the administrative suspension is "punishment" under the Double Jeopardy Clause. ¹ If it is not punishment, the Double Jeopardy Clause is not implicated and our inquiry ends.

In City of Orem v. Crandall, 760 P.2d 920 (Utah App.1988), we held the administrative license suspension scheme at issue did not impose punishment. Id. at 922. At that time, we used the more formalistic approach of simply looking at whether the proceeding itself was civil/administrative or criminal. Id. If a sanction was imposed in a civil/administrative proceeding, the sanction was not punishment under the Double Jeopardy Clause. Id.

However, since Crandall, the United States Supreme Court has disavowed that approach and recognized that "a civil as well as a criminal sanction constitutes punishment when the sanction ... serves the goals of punishment," which are retribution and deterrence. United States v. Halper, 490 U.S. 435, 448, 109 S.Ct. 1892, 1901-02, 104 L.Ed.2d 487 (1989); see also Department of Revenue v. Kurth Ranch, 511 U.S. 767, ----, 114 S.Ct. 1937, 1946, 128 L.Ed.2d 767 (1994) (stating "labels do not control in a double jeopardy inquiry"). Halper held 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, is punishment, as we have come to understand the term." ' " ² Davis, 903 P.2d at 947 (quoting Austin v. United States, 509 U.S. 602, ----, 113 S.Ct. 2801, 2806, 125 L.Ed.2d 488 (1993) (quoting Halper, 490 U.S. at 448, 109 S.Ct. at 1902)).

Thus, to determine whether the administrative license suspension scheme at issue is punishment for double jeopardy purposes, we must perform " 'a particularized assessment of the penalty imposed and the purposes that the penalty may fairly be said to serve.' " Davis, 903 P.2d at 947 (quoting Halper, 490 U.S. at 448, 109 S.Ct. at 1901). We focus on "no single 'key' factor," but examine the "totality of the circumstances," recognizing that "the specific analysis that applies to determine whether a sanction constitutes punishment within the meaning of the double jeopardy clause varies depending upon the sanction." Baldwin v. Department of Motor Vehicles, 35 Cal.App.4th 1630, 42 Cal.Rptr.2d 422, 430 (Cal.Ct.App.1995) (citing Kurth Ranch, 511 U.S. at ----, 114 S.Ct. at 1948). Therefore, in the context of an administrative license suspension, we do not strictly apply the Supreme Court's analyses from Halper, 490 U.S. at 448-52, 109 S.Ct. at 1902-04 (monetary sanction), Austin, 509 U.S. at ---- - ----, 113 S.Ct. at 2806-12 (civil forfeiture), and Kurth Ranch, 511 U.S at ----, 114 S.Ct. at 1948 (drug tax). ³ See Baldwin, 42 Cal.Rptr.2d at 429-30. Instead, we fashion an analysis informed by those cases, yet suited to the civil sanction at issue. See id.; State v. Higa, 897 P.2d 928, 933 (Haw.1995); State v. Jones, 340 Md. 235, 666 A.2d 128, 134 (1995); State ex rel. Schwartz v. Kennedy, 904 P.2d 1044, 1055 (N.M.1995).

Considering Halper, Austin, and Kurth Ranch, together with myriad other state cases applying their principles in the context of administrative driver's license suspensions for DUI, we proceed as follows: We first place the statutory scheme at issue in its historical context, examining past uses of license suspensions to determine if their purposes have been perceived to be punitive or nonpunitive. See Austin, 509 U.S. at ----, 113 S.Ct. at 2812; State v. Zerkel, 900 P.2d 744, 751 (Alaska Ct.App.1995); Jones, 666 A.2d at 135; Davis, 903 P.2d at 948. Then, we review the statutory scheme itself for overall purpose and legislative intent. Zerkel, 900 P.2d at 751; State v. Savard, 659 A.2d 1265, 1268 (Me.1995); Jones, 666 A.2d at 135; Kennedy, 904 P.2d at 1055-56; State v. Strong, 158 Vt. 56, 605 A.2d 510, 513 (1992).

Historical Context

In determining that administrative driver's license suspensions for DUI violations have traditionally been viewed as "remedial" or protective--not punitive--we find support in (1) prior pronouncements of the United States Supreme Court, the Utah Supreme Court, see City of Cleveland v. Miller, 68 Ohio Misc.2d 52, 646 N.E.2d 1213, 1216 (1995); cf. Davis, 903 P.2d at 945 (using state supreme court authority to label civil forfeiture punitive), and other state courts; and (2) analogy to other licensing schemes, see Savard, 659 A.2d at 1268.

As far back as 1938, the United States Supreme Court stated, "One [sanction] which is characteristically free of the punitive criminal element is revocation of a privilege voluntarily granted." Helvering v. Mitchell, 303 U.S. 391, 399, 58 S.Ct. 630, 633, 82 L.Ed. 917 (1938). Certainly a state-issued driver's license is a "privilege voluntarily granted." State v. Fox, No. MV94315260, 1995 WL 559000, at * 3 (Conn.Super.Ct. Sept. 13, 1995); Nolen v. State, 218 Ga.App. 819, 463 S.E.2d 504, 507 (1995); Johnson v. State, 95 Md.App. 561, 622 A.2d 199, 205 (1993); Savard, 659 A.2d at 1267; State v. Young, 3 Neb.App. 539, 530 N.W.2d 269, 278 (1995); cf. Utah Code Ann. § 53-3-207(1)(a) (1994). Thus, revocation or suspension of a driver's license has traditionally been outside the Supreme Court's notion of punishment under the Double Jeopardy Clause.

Further, the Utah Supreme Court long ago declared, "The purpose of this administrative procedure is not to punish the inebriated drivers; such persons are subject to separate criminal prosecution for the purpose of punishment. The administrative revocation proceedings are to protect the public, not to punish individual drivers." Ballard v. State, 595 P.2d 1302, 1305 (Utah 1979). Other states agree that the historical purpose of driver's license suspension after a DUI arrest is remedial--i.e., to protect the public from unsafe drivers--not punitive. See, e.g., State v. Hanson, 532 N.W.2d 598, 601 (Minn.Ct.App.1995).

Indeed, suspensions of various types of government-issued licenses generally serve the remedial purpose of protecting the public. See Jones, 666 A.2d at 136. For instance, aside from drivers, Utah requires licensure of those practicing in a broad range of professions with the potential to injure consumers through malfeasance or negligence. Utah Code Ann. §§ 58-1-101 to 58-66-608 (1994 & Supp.1995) (ranging from architects and accountants to physicians and social workers). Likewise, certain kinds of businesses that could be harmful to public health may not be operated without licenses. See, e.g., id. § 2-1-16 (1995) (airport); id. § 4-11-4 (bee raising); id. § 4-32-4 (slaughterhouse). To ensure public protection, licensees typically must show their capability by meeting certain standards such as reaching a specific level of education or passing an examination before receiving a license. See generally id. §§ 58-1-101 to 58-66-608 (1994 & Supp.1995) (listing requirements for each type of professional or occupational license).

Traditionally, the ultimate goal of licensing schemes is to prevent unethical or inept persons from participating in an activity which requires a license. See Jones, 666 A.2d at 136. In revoking a conditionally issued license for noncompliance with the conditions of its issuance, the state simply means to guard the public from those who are unfit for the regulated activity. Kennedy, 904 P.2d at 1056. Accordingly, "courts have repeatedly held that revocation [or suspension] of a license for violation of...