State v. Burnell, No. 18139.

Decision Date24 March 2009
Docket NumberNo. 18139.
Citation290 Conn. 634,966 A.2d 168
CourtConnecticut Supreme Court
PartiesSTATE of Connecticut v. Michael BURNELL.

Jeffrey D. Brownstein, for the appellant (defendant).

Rita M. Shair, senior assistant state's attorney, with whom were Michael Dearington, state's attorney, and, on the brief, James Turcotte, supervisory assistant state's attorney, for the appellee (state).

NORCOTT, KATZ, PALMER, VERTEFEUILLE and ZARELLA, Js.

NORCOTT, J.

In this appeal, we consider whether the administrative suspension of a driver's license by the commissioner of motor vehicles (commissioner) constitutes a conviction for purposes of the federal1 and state2 constitutional protections against double jeopardy, thus barring further criminal prosecution for operating a motor vehicle while under the influence of an intoxicating liquor or drug. The defendant, Michael Burnell, appeals3 from the judgment of conviction, ren dered after a conditional plea of nolo contendere pursuant to General Statutes § 54-94a, of illegally operating a motor vehicle while under the influence of liquor or drugs or while having an elevated blood alcohol content in violation of General Statutes § 14-227a(a).4 On appeal, the defendant claims that the trial court improperly denied his motion to dismiss because his continued prosecution, after the commissioner already had suspended his license pursuant to General Statutes § 14-227b(c) and (e),5 violated his constitutional protections against double jeopardy. We disagree and, accordingly, we affirm the judgment of the trial court.

The record reveals the following relevant facts and procedural history. On the evening of January 13, 2006, a police officer stopped the defendant while he was operating his car in the town of Wallingford. He was arrested after failing field sobriety tests, and subsequent chemical tests showed his blood alcohol content to be 0.198 and 0.173 percent. The state charged the defendant in a two part information with driving while intoxicated in violation of § 14-227a,6 and failure to display lights in violation of General Statutes § 14-96a(a).

Subsequently, the department of motor vehicles (department) conducted an administrative hearing pur suant to § 14-227b(g),7 at which the hearing officer found that: (1) the police officer had probable cause to arrest the defendant for a violation specified in that statute; (2) the defendant was placed under arrest; (3) the defendant submitted to chemical analysis, the results of which "indicated a [blood alcohol content of 0.16 percent] or more"; and (4) the defendant was operating a motor vehicle at the time of his arrest. The commissioner ordered that the defendant's driver's license be suspended for ten months pursuant to § 14-227b(i).

The defendant subsequently moved, inter alia,8 to dismiss all the charges against him on the ground that trying him for his alleged violation of § 14-227a(a) would violate his state and federal constitutional protections against double jeopardy because he already had been "convicted" of the same offense in the administrative proceedings that were conducted pursuant to § 14-227b. The trial court denied the defendant's motion, relying on State v. Hickam, 235 Conn. 614, 626-28, 668 A.2d 1321 (1995), cert. denied, 517 U.S. 1221, 116 S.Ct. 1851, 134 L.Ed.2d 951 (1996), overruled in part on other grounds by State v. Crawford, 257 Conn. 769, 779-80, 778 A.2d 947 (2001), cert. denied, 534 U.S. 1138, 122 S.Ct. 1086, 151 L.Ed.2d 985 (2002), in which this court concluded that an administrative license suspension pursuant to § 14-227b was not a punishment and, therefore, the defendant's rights against double jeopardy were not violated by his subsequent prosecution for a violation of § 14-227a. Thereafter, the defendant entered a conditional plea of nolo contendere pursuant to § 54-94a.9 This appeal followed.

As we understand the defendant's claims on appeal, he contends that: (1) his federal constitutional protections against double jeopardy preclude his prosecution under § 14-227a because the commissioner's order suspending his license constitutes a "`[c]onviction'" as defined by General Statutes § 14-1(21);10 and (2) the criminal prosecution also is barred by the state constitution, which provides greater double jeopardy protections than does the federal constitution. We address each claim in turn.

I

The defendant first contends that, since the commissioner's order suspending his license pursuant to § 14-227b(i) constitutes a "`[c]onviction'" as defined by § 14-1(21), it is a conviction for purposes of the federal double jeopardy analysis under United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989), as modified by Hudson v. United States, 522 U.S. 93, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997), thereby precluding further prosecution of the criminal charge under § 14-227a.11 He further argues that State v. Hickam, supra, 235 Conn. at 614, 668 A.2d 1321, is distinguishable because that case was limited to the issue of whether an administrative suspension was a punishment, rather than a second prosecution or conviction for the same offense. In response, the state contends that the present case is controlled by our decision in Hickam. The state further relies on Fishbein v. Kozlowski, 252 Conn. 38, 49, 743 A.2d 1110 (1999), for the proposition that, the language of § 14-1(21) notwithstanding, administrative license suspension proceedings are civil and do not place the defendant or licensee in jeopardy. We agree with the state, and conclude that the commissioner's suspension of the defendant's driver's license pursuant to § 14-227b(i) was not a criminal conviction, and therefore, the continued criminal prosecution under § 14-227a did not violate his federal and state constitutional rights against double jeopardy.

The defendant's double jeopardy claim presents a question of law, over which our review is plenary. State v. Butler, 262 Conn. 167, 174, 810 A.2d 791 (2002). "The fifth amendment to the United States constitution provides in relevant part: No person shall ... be subject for the same offense to be twice put in jeopardy of life or limb.... The double jeopardy clause of the fifth amendment is made applicable to the states through the due process clause of the fourteenth amendment ....

"We have recognized that the [d]ouble [j]eopardy [c]lause consists of several protections: It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense." (Citation omitted; internal quotation marks omitted.) State v. Bletsch, 281 Conn. 5, 27, 912 A.2d 992 (2007); see also, e.g., North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), overruled on other grounds by Alabama v. Smith, 490 U.S. 794, 798-99, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989). It is the second protection against double jeopardy that is at issue in this appeal.

Our analysis necessarily begins with a review of our factually and procedurally similar decision in State v. Hickam, supra, 235 Conn. at 614, 668 A.2d 1321, even though that case involved the third double jeopardy protection. In Hickam, as in the present case, the defendant had been arrested for driving while intoxicated in violation of § 14-227a(a), and the commissioner had suspended her driver's license pursuant to § 14-227b prior to her criminal trial. Id., at 617, 668 A.2d 1321. In rejecting the defendant's double jeopardy claim, we noted that, under United States v. Halper, supra, 490 U.S. at 448-49, 109 S.Ct. 1892, "a civil or administrative sanction that serves a legitimate remedial purpose and is related rationally to that purpose does not give rise to a double jeopardy violation even if the sanction has some deterrent effect. Conversely, no matter what its label, a sanction or portion thereof that seeks only to punish triggers the protection of the double jeopardy clause."12 State v. Hickam, supra, at 623, 668 A.2d 1321. We observed that "most courts that have spoken directly to the issue of whether an administrative license suspension following an arrest for driving while intoxicated raises a double jeopardy bar to prosecution have consistently relied upon Halper's explicit holding and have determined that if a license suspension furthers the legitimate remedial goal of public safety, it is not punishment in the double jeopardy context even if it has an incidental deterrent or retributive effect."13 Id., at 622, 668 A.2d 1321. Noting that "the legislative history of § 14-227b reveal[ed] that a principal purpose for the enactment of the statute was to protect the public by removing potentially dangerous drivers from the state's roadways with all dispatch compatible with due process"; id., at 624, 668 A.2d 1321; we concluded that a postarrest license suspension under § 14-227b "is sufficiently remedial so that the administrative suspension does not bar a future prosecution for the same conduct that gave rise to the suspension." Id.

The defendant argues, however, that Hickam is distinguishable because the present case implicates the second double jeopardy protection, namely, that against multiple convictions or prosecutions for the same offense. We disagree. It is well settled that prosecutions or convictions for double jeopardy purposes arise only from proceedings that are "essentially criminal." (Internal quotation marks omitted.) Breed v. Jones, 421 U.S. 519, 528, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975); id., at 528-30, 95 S.Ct. 1779 (juvenile delinquency proceedings are essentially criminal because of impact on respondent and procedural protections afforded). Further, we have recognized "repeatedly that a license suspension hearing is not a criminal proceeding and that the subject of such a hearing is not entitled to all of the procedural...

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