State v. McClendon
| Decision Date | 01 May 1997 |
| Docket Number | No. 63066-6,63066-6 |
| Citation | 131 Wn.2d 853,935 P.2d 1334 |
| Court | Washington Supreme Court |
| Parties | The STATE of Washington, Petitioner, v. Doy Lee McCLENDON, Gil Crosby, Sally Parrish, Frank Sayre, Richard Triquart, Stephen Stark, Brian Hayton and Mark Booth, Respondents. |
James Kaufman, Whitman County Prosecutor, Colfax, for Petitioner.
Nuxoll, Libey & Ensley, Timothy Esser, Michael J. Pettit, Pullman, for Respondents.
The parties and a judge of the Whitman County Superior Court jointly seek review of a Whitman County District Court decision granting the respondents' motion to dismiss charges of driving while under the influence of intoxicating liquor in violation of RCW 46.61.502. We granted review. We reverse and remand for trial.
The sole question presented in this case is whether it is unconstitutional double jeopardy for the State of Washington to prosecute respondents for violation of RCW 46.61.502, driving a vehicle while under the influence of intoxicating liquor, when the Department of Licensing has previously issued each respondent a probationary license after test results showed each had a breath alcohol level of .10 percent or higher.
The cases against all eight respondents were dismissed by the Whitman County District Court, the Honorable David Frazier, on May 1, 1995. On May 9, 1995 the State of Washington appealed the cases to the Whitman County Superior Court. The judge, the Honorable Wallis W. Friel The eight respondents were initially charged in the Whitman County District Court by the Whitman County Prosecuting Attorney for violations of RCW 46.61.502, driving while under the influence of intoxicating liquor. In connection with the State's appeal, the parties on June 26, 1995 filed in the Whitman County Superior Court an "Agreed Narrative Report of Proceedings" dated June 16, 1995, which states:
and all parties asked this court for direct review. We granted review of the consolidated cases on October 5, 1995.
[Respondents] Doy L. McClendon, Gil Crosby, Sally Parrish, Frank Sayre, Richard Triquart, Stephen Stark, Brian Hayton and Mark Booth [were] arrested for suspicion of violating RCW 46.61.502 on 12/9/94, 11/19/94, 12/2/94, 1/31/95, 12/18/94, 2/3/95, 2/9/95 and 3/5/95 [respectively]. Each defendant submitted to a BAC Datamaster Verifier test in compliance with RCW 46.20.308 and all relevant Washington Administrative Code provisions. Each defendant registered a breath test result of .10 or higher. All defendants [were] issued temporary licenses and advised of their right to an administrative hearing pursuant to [RCW] 46.20.365. And, all defendants were issued probationary licenses as a result of their performances on the breath test.
Subsequent to the issuance of the probationary licenses the Whitman County Prosecutor's office initiated criminal actions in the Whitman County District Court for alleged violations of RCW 46.61.502 [based on] the same conduct. On February 16, 1995, Defense's Motion to Dismiss for Violation of Double Jeopardy was filed. On February 21, 1995, the State's response was filed. Argument on this issue was heard by Judge [David] Frazier on March 3 and March 8, 1995. Judge Frazier reserved ruling on the matter. On April 17, 1995, Judge Frazier ruled in favor of the State finding that subjecting a defendant to a civil proceeding which seeks imposition of a probationary driver's license did not constitute punishment. On April 18, 1995, defense counsel filed Defendant's Motion for Reconsideration. On April 27, 1995, Judge Frazier reversed his decision of April 17, 1995, ruling in favor of the defense and citing State v. Calle, 125 Wash.2d 769 [888 P.2d The Findings of Fact and Conclusions of Law entered by the District Court on May 1, 1995 stated:
155] (1995), but reserved ruling on the appropriate remedy. On May 1, 1995, over the objections of the State, on the ground of lack of notice, the above-entitled cases [were] consolidated and Findings of Fact and Conclusions of Law were entered granting the defense Motions to dismiss. On May 9, 1995, the State [Appellant] filed a timely Notice of Appeal.
1. The Defendant was arrested on suspicion of DUI. He/She agreed to take a breath test which registered .10 or above. Based on these facts, the arresting officer provided to the Washington State Department of Licensing a Report of Breath/Blood Test. Pursuant to RCW 46.20.365 the arresting officer issued to the Defendant a temporary license and the Washington State Department of Licensing initiated administrative action which resulted in the imposition of a five year requirement that Defendant drive on a probationary license.
2. Based on the same facts/incident, the Whitman County Prosecuting Attorney's Office issued a criminal citation charging the Defendant with the crime of DUI pursuant to RCW 46.61.502.
BASED ON THESE FINDINGS, the court concludes:
CONCLUSIONS OF LAW
1. The State of Washington, based upon the same facts, has initiated two separate and distinct proceedings against the Defendant.
2. The criminal proceeding seeks to punish the Defendant.
3. The civil proceeding brought by the Department of Licensing which seeks imposition of a probationary license also constitutes punishment as that term is considered under double jeopardy analysis pursuant to State v. Calle, 125 Wash.2d 769 (1995).
THEREFORE, IT IS HEREBY ORDERED:
1. That the criminal charge of DUI filed herein is dismissed with prejudice.
2. Costs are not awarded, but shall abide the outcome of any appeal.
On July 28, 1995, Appellant, Respondents, and the Honorable Wallis W. Friel, Whitman County Superior Court, filed a joint request for direct review by the Supreme Court. We granted review on October 5, 1995. Amicus Curiae, Washington Association of Prosecuting Attorneys, filed a brief in support of Appellant State of Washington on October 26, 1995.
Rule for Appeal of Decisions of Courts of Limited Jurisdiction (RALJ) 1.1(a) provides for review by the superior court of certain decisions of courts of limited jurisdiction, including final decisions of district courts. 1 There is no court rule or statute providing for certifying or transferring RALJ appeals from the superior court to the Supreme Court.
This Court's authority to make rules carries with it the inherent power to waive rules when justice requires it. 2 We have previously waived rules to promptly resolve issues relating to enforcement of laws governing driving while under the influence of intoxicating liquor or drugs. 3 Whether the double jeopardy clause prohibits the state
from prosecuting respondents for driving under the influence of intoxicating liquor after the Department of Licensing issues them probationary licenses is a significant question which deserves prompt resolution and merits waiver of the rules for review by this Court. We therefore waive the rule and accept these cases for direct review.
Because the Legislature in 1995 repealed or amended statutes relating to probationary licenses after these appeals were filed, we must first determine whether those changes affect this case. 4
The Legislature created the new category of "probationary license" in the "1994 Omnibus Drunk Driving Act" (Act), which took effect July 1, 1994. 5 Under the Act the Department of Licensing (Department) issued probationary licenses to persons under certain circumstances, including those violating RCW 46.61.502 6 or RCW 46.61.504 7 who take a test showing a blood alcohol concentration of .10 or higher. Respondents were issued probationary licenses under those statutes. 8
Under the 1994 Act, former RCW 46.61.5051 provided penalties for a person with a regular driver's license who The Legislature in 1995 repealed former RCW 46.61.5051 and former RCW 46.61.5052, effective September 1, 1995. 11 It then enacted RCW 46.61.5055, which outlines penalties for all persons convicted of violating RCW 46.61.502 or RCW 46.61.504, effective September 1, 1995. 12 Unlike former RCW 46.61.5052, RCW 46.61.5055 does not provide harsher mandatory minimum penalties for those holding probationary licenses than for those holding regular licenses under similar circumstances. 13
was convicted under RCW 46.61.502 and RCW 46.61.504. Former RCW 46.61.5052 outlined penalties for a person with a probationary license who was convicted of violating those statutes. Under the statutes a person with a probationary license was subject to mandatory minimum penalties which were harsher than those imposed upon a person with a regular driver's license under similar circumstances. For example, a person with a probationary license who violated RCW 46.61.502(1)(a) or RCW 46.61.504(1)(a) because of a blood alcohol level of at least .10, but less than .15, was subject to imprisonment of at least seven days, but not more than a year; a fine of at least $500.00, but not more than $5,000.00; and suspension of [935 P.2d 1339] that person's driver's license or permit for one year. 9 By comparison, a person holding a regular driver's license under similar circumstances, who had not been convicted of violating RCW 46.61.502 or RCW 46.61.504 within five years prior to the current violation, was subject to imprisonment for at least one day, but not more than a year; a fine of at least $350.00, but not more than $5,000.00; and suspension of that person's driver's license or permit for 90 days. 10
One of respondents' primary arguments is that a probationary license is punishment under double jeopardy...
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