State v. Hansen
| Decision Date | 26 January 1996 |
| Docket Number | No. S-95-312,S-95-312 |
| Citation | 249 Neb. 177,542 N.W.2d 424 |
| Parties | STATE of Nebraska, Appellee, V. Russell J. HANSEN, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Judgments: Appeal and Error. Regarding questions of law, an appellate court is obligated to reach a conclusion independent of determinations reached by the trial court.
2. Final Orders: Appeal and Error. There are three types of final orders which may be reviewed on appeal: (1) an order which affects a substantial right and which determines the action and prevents a judgment, (2) an order affecting a substantial right made during a special proceeding, and (3) an order affecting a substantial right made on summary application in an action after judgment is rendered.
3. Statutes: Words and Phrases. "Special proceeding" means every civil statutory remedy which is not encompassed in chapter 25 of the Nebraska Revised Statutes.
4. Double Jeopardy. The determination of a nonfrivolous double jeopardy claim affects the substantial right not to be tried twice for the same offense.
5. Double Jeopardy: Words and Phrases. In making the assessment of whether a sanction constitutes punishment for double jeopardy purposes, the labels "criminal" and "civil" are not of paramount importance.
6. Double Jeopardy. The Double Jeopardy Clause protects against three distinct abuses: (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense.
7. Double Jeopardy. While recourse to statutory language, structure, and intent is appropriate in identifying the inherent nature of a proceeding, or in determining the constitutional safeguards that must accompany those proceedings as a general matter, the approach is not well suited to the context of the "humane interests" safeguarded by the Double Jeopardy Clause's proscription against multiple punishments.
8. Penalties and Forfeitures. The determination whether a given civil sanction constitutes punishment in the relevant sense requires a particularized assessment of the penalty imposed and the purposes that the penalty may fairly be said to serve.
9. Criminal Law: Double Jeopardy. A defendant who already has been punished in a criminal proceeding may not be subjected to an additional civil sanction to the extent that the second sanction may not fairly be characterized as remedial, but only as a deterrent or retribution.
10. Statutes: Drunk Driving: Licenses and Permits: Revocation. Substantial remedial purposes underlie the administrative license revocation statutes, and their remedial character is not defeated by the fact that the statutes also play a role in deterring others from driving drunk.
11. Motor Vehicles: Licenses and Permits. Driving a motor vehicle is not a fundamental right, but is a privilege granted by the state.
12. Motor Vehicles: Licenses and Permits: Revocation. A license to operate a motor vehicle in this state is issued, not as a contract, but as a privilege, with the understanding that such license may be revoked for cause by the state.
13. Statutes: Licenses and Permits: Revocation. Although there is an element of deterrence, and thus a "sting" of punishment, incorporated in the administrative license revocation statutes, this element is present in any loss of license or privilege and is not the primary focus of the statutes.
14. Statutes: Drunk Driving: Licenses and Permits: Revocation. Under the administrative license revocation statutes, a driver's license is not suspended to deter the offender or seek retribution, but to protect the public against dangerous drunk drivers.
15. Statutes: Licenses and Permits: Revocation: Time. The period of revocation allowable under the administrative license revocation statutes is not excessive in relation to the remedial goal of protecting the public health and safety.
16. Double Jeopardy: Licenses and Permits: Revocation: Public Health and Welfare. When the government employs a licensing scheme to regulate an activity that affects the public health and safety, the administrative revocation of that license can legitimately serve to deter conduct and still remain remedial for double jeopardy purposes so long as the revocation is based on conduct that bears a direct relation to the government's remedial goals or to the proper administration and enforcement of the regulatory scheme.
17. Double Jeopardy: Drunk Driving: Licenses and Permits: Revocation. The Double Jeopardy Clause does not bar prosecuting a motorist for driving under the influence after the motorist's driver's license has been administratively revoked, because such revocation does not subject the offender to multiple punishment for the same offense.
William G. Line, of Kerrigan & Line, Fremont, for appellant.
Don Stenberg, Attorney General, and Kimberly A. Klein, Lincoln, for appellee.
In this appeal, we are asked to determine whether the criminal prosecution of a motorist for driving under the influence of intoxicating liquor (DUI) after the motorist's driver's license has been administratively revoked violates the constitutional prohibition against double jeopardy.
Russell J. Hansen appeals from an order of the district court for Dodge County affirming the county court's overruling of Hansen's plea in bar to criminal DUI charges. The court found that the Double Jeopardy Clauses of the U.S. and Nebraska Constitutions are not applicable because the administrative revocation of Hansen's driver's license was remedial in nature and not punitive. We affirm the district court's finding that the Double Jeopardy Clauses do not bar the criminal prosecution of Hansen for DUI because the administrative revocation of his driver's license for 90 days was remedial in nature and that, thus, he is not subject to multiple punishment for the same offense.
Hansen alleges the district court erred in not finding that his criminal DUI prosecution was barred by the Double Jeopardy Clauses of the U.S. and Nebraska Constitutions because the DUI prosecution, in addition to the administrative revocation of his driver's license, subjects him to multiple punishment for the same offense.
Regarding questions of law, an appellate court is obligated to reach a conclusion independent of determinations reached by the trial court. State v. Lynch, 248 Neb. 234, 533 N.W.2d 905 (1995).
On November 12, 1994, Hansen was stopped by a deputy of the Dodge County Sheriff's Department in Scribner, Nebraska, for driving at night with a burned out taillight. Upon approaching Hansen's vehicle, the officer detected the odor of alcohol, observed that Hansen's face was flushed, and noted that Hansen's speech was dry mouthed and chalky. Hansen agreed to take a preliminary breath test, the results of which were over the legal limit of .10 grams of alcohol per 210 liters of breath. Hansen was then placed under arrest and transported to the Dodge County Judicial Center in Fremont, Nebraska. At the center, an official breath test was administered with a resultant reading of .143 grams of alcohol per 210 liters of breath. As a result, Hansen was given notice of revocation of his driver's license, a temporary driver's license, and a form to petition for an administrative hearing along with an addressed envelope.
On December 13, 1994, Hansen's driver's license was ordered revoked by the Department of Motor Vehicles for 90 days. At the same time, Hansen was also facing criminal prosecution in the county court for Dodge County for DUI, third offense. Hansen filed a plea in bar alleging that the criminal DUI prosecution was barred by the Double Jeopardy Clauses of the U.S. and Nebraska Constitutions, because he had already been punished for the same offense by having his driver's license administratively revoked. The county court overruled Hansen's plea in bar, and the district court affirmed.
Preliminarily, we believe it helpful to give a description of Nebraska's administrative license revocation statutes, Neb.Rev.Stat. §§ 60-6,205 to 60-6,208 (Reissue 1993). Under the statutes, a person who is arrested for driving under the influence of alcohol and who submits to a chemical test which discloses the presence of alcohol in any of the concentrations specified in Neb.Rev.Stat. § 60-6,196 (Reissue 1993), .10 of a gram or more of alcohol per 100 milliliters of blood or .10 of a gram or more of alcohol per 210 liters of breath, shall be served verbal notice by the arresting officer, as an agent of the director of the Department of Motor Vehicles, of the intention to immediately impound and revoke the driver's license of such person and that the revocation will be automatic 30 days after the date of the arrest. § 60-6,205(3).
The arresting officer is then required to take possession of the driver's license and to issue a temporary license, which is valid for 30 days. § 60-6,205(4). The arresting officer is also required to explain the administrative license revocation procedure and the rights of the arrested person, and to provide an addressed envelope and a petition form which may be used to request a hearing before the director of the Department of Motor Vehicles to contest the revocation. Id.
The burden of proof is on the State to make a prima facie case for revocation before the director. McPherrin v. Conrad, 248 Neb. 561, 537 N.W.2d 498 (1995); Mackey v. Director of Department of Motor Vehicles, 194 Neb. 707, 235 N.W.2d 394 (1975). However, once the officer's sworn report is provided, the director's order of revocation has prima facie validity. Id. It is then presumed that the revocation will occur unless the offender establishes grounds for reversal by a preponderance of...
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