State v. Lawton

• Decision Date: 27 February 1992
• Docket Number: No. 91-0483-CR,91-0483-CR
• Citation: 482 N.W.2d 142,167 Wis.2d 461
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Timothy A. LAWTON, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 142

482 N.W.2d 142

167 Wis.2d 461

STATE of Wisconsin, Plaintiff-Respondent, v. Timothy A. LAWTON, Defendant-Appellant.

No. 91-0483-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Oct. 8, 1991.

Opinion Released Feb. 27, 1992.

Opinion Filed Feb. 27, 1992.

For the defendant-appellant the cause was submitted on the briefs of James H. Connors and Scott B. Edwards of Madison.

For the plaintiff-respondent the cause was submitted on the briefs of James E. Doyle, Atty. Gen. and Sharon Ruhly, Asst. Atty. Gen.

Before EICH, C.J., and DYKMAN and SUNDBY, JJ.

DYKMAN, Judge.

While traveling eastbound on a state highway, Timothy Lawton fell asleep at the wheel of his vehicle. The vehicle drifted into the westbound lane and collided with a motorcycle, killing both riders. Lawton was issued a traffic citation for operating a motor vehicle while intoxicated (OMVWI) as a first offender, contrary to sec. 346.63(1)(a), Stats. The district attorney subsequently charged Lawton with two counts of homicide by intoxicated use of a motor vehicle, contrary to sec. 940.09(1)(a), Stats., and two counts of homicide by use of a motor vehicle while having a blood alcohol concentration of 0.1% or more, contrary to sec. 940.09(1)(b), Stats.

Lawton pled no contest to the first offender OMVWI charge. He then moved to dismiss the homicide charges, arguing that the prosecution was barred by double jeopardy. The trial court denied Lawton's motion, reasoning that the OMVWI prosecution constituted a civil, rather than criminal, proceeding. We granted Lawton leave to appeal from the nonfinal order, and we now affirm.

I. DOUBLE JEOPARDY

A criminal defendant is protected against being placed twice in jeopardy by the fifth amendment to the United States Constitution and article I, section 8, of the Wisconsin Constitution. ¹ The United States Supreme Court has interpreted the double jeopardy clause as embodying a triumvirate of safeguards, protecting a defendant against: (1) a second prosecution for the same offense following acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969) overruled on other grounds, Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989); United States v. Mena, 933 F.2d 19, 29 (1st Cir.1991). This case implicates the second protection--prosecution after conviction for the same offense. See Ohio v. Johnson, 467 U.S. 493, 498-99, 104 S.Ct. 2536, 2540-41, 81 L.Ed.2d 425 (1984).

The prohibition on successive prosecutions protects "the defendant from multiple trials and multiple punishments for the same offense" and preserves "the finality of judgments." State v. Martin, 121 Wis.2d 670, 675, 360 N.W.2d 43, 46 (1985).

The underlying idea ... is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.

Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223-24, 2 L.Ed.2d 199 (1957). Multiple prosecutions also "give the State an opportunity to rehearse its presentation of proof, thus increasing the risk of an erroneous conviction for one or more of the offenses charged." Grady v. Corbin, 495 U.S. 508, 518, 110 S.Ct. 2084, 2092, 109 L.Ed.2d 548 (1990) (citations omitted).

A. Double Jeopardy Challenges in the Civil/Criminal Context

In case law culminating with United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989), the United States Supreme Court has employed a specific analysis to determine whether a penalty is civil or criminal for purpose of double jeopardy. In Helvering v. Mitchell, 303 U.S. 391, 58 S.Ct. 630, 82 L.Ed. 917 (1938), the defendant was acquitted of income tax fraud. The government then brought a civil action to recover the tax deficiency plus an additional fifty percent statutory penalty for fraud. The defendant argued that the civil action subjected him to double jeopardy because the statutory penalty was intended as a punishment rather than a tax. Id. at 395-98, 58 S.Ct. at 631-33.

The Court disagreed, holding that "[u]nless this sanction was intended as punishment, so that the proceeding is essentially criminal, the double jeopardy clause provided for the defendant in criminal prosecutions is not applicable," id. at 398-99, 58 S.Ct. at 633, and that the question of whether a civil penalty is actually a criminal sanction "is one of statutory construction." Id. at 399, 58 S.Ct. at 633 (citation omitted); see, e.g., United States ex rel. Marcus v. Hess, 317 U.S. 537, 63 S.Ct. 379, 87 L.Ed. 443 (1943); Rex Trailer Co. v. United States, 350 U.S. 148, 76 S.Ct. 219, 100 L.Ed. 149 (1956).

In United States v. One Assortment of 89 Firearms, 465 U.S. 354, 104 S.Ct. 1099, 79 L.Ed.2d 361 (1984), the defendant was acquitted of criminal charges for dealing in firearms without a license. The government then instituted an in rem action for forfeiture of the seized firearms. Quoting from its decision in United States v. Ward, 448 U.S. 242, 248-49, 100 S.Ct. 2636, 2641-42, 65 L.Ed.2d 742 (1980), ² the Court delineated a methodology for examining double jeopardy challenges in the civil/criminal context:

Our inquiry in this regard has traditionally proceeded on two levels. First, we have set out to determine whether Congress, in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other. Second, where Congress has indicated an intention to establish a civil penalty, we have inquired further whether the statutory scheme was so punitive either in purpose or effect as to negate that intention.

89 Firearms, 465 U.S. at 362-63, 104 S.Ct. at 1105 (citations omitted).

In the recent decision of United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989), the Court emphasized the second part of the Ward methodology. In Halper, the defendant defrauded the government of $585 by filing false Medicare claims. The defendant was convicted of sixty-five counts of violating the criminal false-claims statute. The government then brought an action for statutory penalties in excess of $130,000 under the civil false-claims statute. Id. at 437-38, 109 S.Ct. at 1895-96.

The Halper court observed 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." Id. at 448, 109 S.Ct. at 1902 (citation omitted).

[T]he 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. Simply put, a civil as well as a criminal sanction constitutes punishment when the sanction as applied in the individual case serves the goals of punishment.

Id. at 448, 109 S.Ct. at 1901-02. The Court found the disparity between the expense to the government and the defendant's $130,000 liability "sufficiently disproportionate that the sanction constitutes a second punishment in violation of double jeopardy." Id. at 452, 109 S.Ct. at 1904. ³

Halper indicates the continuing validity of the methodology employed by the courts in Mitchell and 89 Firearms in examining double jeopardy challenges in the criminal/civil context. These cases "establish that a civil sanction will not trigger an inquiry under the double jeopardy clause unless the statute under which it is imposed is criminal in nature." Elizabeth S. Jahncke, United States v. Halper, Punitive Civil Fines, and the Double Jeopardy and Excessive Fines Clauses, 66 N.Y.U.L.REV. 112, 128 (1991). ⁴ With this analysis in mind, we reexamine our decision in State v. Schulz. ⁵

B. State v. Schulz

In State v. Schulz, 100 Wis.2d 329, 302 N.W.2d 59 (Ct.App.1981), the defendant moved for dismissal of two charges of homicide by intoxicated use of a motor vehicle, contending that his previous prosecution for a first offender OMVWI arising out of the same incident barred the subsequent prosecution on double jeopardy grounds. Id. at 330, 302 N.W.2d at 60. At the time Schulz was decided, a first offender of sec. 346.63(1), Stats. (1979-80), was subject to the following penalties: (1) monetary forfeiture of not less than $100 nor more than $500, sec. 346.65(2)(a)1, Stats. (1979-80); (2) license revocation for not less than three months nor more than six months or rehabilitation treatment in lieu of all or part of the revocation, sec. 343.30(1q)(a), (b) and (c), Stats. (1979-80); and (3) compulsory attendance at a driver safety school, sec. 345.60, Stats. (1979-80). In addition, if the offender did not pay the forfeiture, the court could order imprisonment. Section 345.47(1)(a), Stats. (1979-80).

We concluded that the removal by the legislature in 1971 of fines or imprisonment as penalties for violation of sec. 346.63(1), Stats., evidenced "a legislative intent to establish a civil penalty." Schulz, 100 Wis.2d at 331, 302 N.W.2d at 61 (citing sec. 778.01, Stats. ⁶ ). We further concluded that the penalties were not so punitive in purpose or effect to negate the intent of the legislature. We held:

The potential forfeiture of $500 is not sufficient to trigger the protection of the double jeopardy clause. See Ward. Loss of license or the possibility of imprisonment as a means of enforcing the forfeiture is not so punitive as to cause us to conclude that jeopardy should attach. See State ex rel. Prentice v. County Court, 70 Wis.2d 230, 234 N.W.2d 283 (1975); [State v.] Albright [, 98 Wis.2d 663, 298 N.W.2d 196 (Ct.App.198...