State v. McMaster

• Decision Date: 13 December 1996
• Docket Number: No. 95-1159-CR,95-1159-CR
• Citation: 556 N.W.2d 673,206 Wis.2d 30
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Peter J. McMASTER, Defendant-Appellant-Petitioner.
• Court: Wisconsin Supreme Court

Page 673

556 N.W.2d 673

206 Wis.2d 30

STATE of Wisconsin, Plaintiff-Respondent, v. Peter J. McMASTER, Defendant-Appellant-Petitioner.

No. 95-1159-CR.

Supreme Court of Wisconsin.

Argued Oct. 31, 1996.

Decided Dec. 13, 1996.

For the defendant-appellant-petitioner there were briefs by Daniel P. Fay, Joseph M. Amidon and Law Firm of Daniel P. Fay, S.C., Pewaukee and oral argument by Joseph M. Amidon and Daniel P. Fay.

For the plaintiff-respondent the cause was argued by Maureen McGlynn Flanagan, Assistant Attorney General, with whom on the brief was James E. Doyle, Attorney General.

DONALD W. STEINMETZ, Justice.

The issue in this case is whether the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution prohibits the criminal prosecution of the defendant for violations of Wis.Stat. §§ 346.63 ¹ and 346.65, ² subsequent to the administrative suspension of his driving privileges under Wis.Stat. § 343.305(7) and (8). ³ We hold that the criminal prosecution of the defendant after the administrative suspension of his driving privileges is permitted because we find that the primary purpose of Wis.Stat. § 343.305 is remedial.

There is no dispute over the facts in this case. On July 16, 1994, Peter McMaster received a citation for operating while under the influence of an intoxicant in violation of Wis.Stat. §§ 346.63(1)(a) and 346.65. McMaster had previous convictions for violations of the drunk driving statutes and was therefore charged with a criminal offense. A blood alcohol test administered after his arrest showed an ethanol concentration of 0.178 percent in McMaster's blood. Because his blood alcohol concentration was above the prohibited level, McMaster's driving privileges were administratively suspended for six months in accordance with Wis.Stat. § 343.305(7). A citation was also issued charging McMaster with a violation of Wis.Stat. § 346.63(1)(a) and (b).

After his initial appearance before the trial court, McMaster filed a motion to dismiss, claiming that the criminal prosecution under Wis.Stat. § 346.63 was barred by the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution. ⁴ McMaster argued that because the State had already punished him for driving while intoxicated by revoking his driving privileges, he could not also be criminally prosecuted for the same offense. The circuit court for Waukesha County, Judge J. Mac Davis, denied the motion to dismiss based on its finding that the purpose of Wis.Stat. § 343.305 is remedial and therefore does not constitute punishment for double jeopardy purposes. McMaster was found guilty of operating a motor vehicle with a blood alcohol content in excess of 0.10 percent contrary to Wis.Stat. § 346.63(1)(b) and sentenced to 90 days in the county jail.

McMaster appealed to the court of appeals. The court of appeals affirmed the circuit court judgment of conviction. In its decision, the court found that Wis.Stat. § 343.305(7) and (8) is remedial in nature, noting that the fact that the statute may also serve some deterrent and punitive goals does not make its primary purpose one of punishment. State v. McMaster, 198 Wis.2d 542, 543 N.W.2d 499 (Ct.App.1995). Despite McMaster's urging, the court declined to consider this case under the United States Supreme Court case Department of Revenue of Montana v. Kurth Ranch, 511 U.S. 767, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994), because the holding in Kurth Ranch is limited to situations where taxes are imposed on illegal activities. Instead, the court found that the statute should be considered under United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989). Thus the court of appeals held that under Halper, Wis.Stat. § 343.305(7) and (8) is primarily remedial and does not constitute punishment for a double jeopardy claim.

This case presents a question of constitutional interpretation and a determination of statutory purpose. Whether a statute is considered punishment is a finding of constitutional fact and is an issue of law. State v. Woods, 117 Wis.2d 701, 715, 345 N.W.2d 457 (1984). Therefore, this court may decide the issue independently of the circuit court or the court of appeals. State v. Thierfelder, 174 Wis.2d 213, 218, 495 N.W.2d 669 (1993).

A party challenging a statute must show it to be unconstitutional beyond a reasonable doubt. State v. Carpenter, 197 Wis.2d 252, 263, 541 N.W.2d 105 (1995). There is a strong presumption in favor of the constitutionality of the statute. See id. Therefore, McMaster bears "the burden of overcoming the strong presumption that [Wis.Stat. § 343.305(7) and (8) ] does not subject a person to multiple punishment." Id. at 264, 541 N.W.2d 105. A careful analysis of the statute itself in light of controlling precedent is necessary to determine if the challenged statute is in fact violative of the Double Jeopardy Clause.

Historically, the United States Supreme Court has held that civil sanctions imposed in separate proceedings from a criminal prosecution stemming from the same incident do not violate the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution. For example, in Various Items of Personal Property v. United States, 282 U.S. 577, 51 S.Ct. 282, 75 L.Ed. 558 (1931), the Waterloo Distilling Corporation was ordered to forfeit a distillery, warehouse, and denaturing plant on the ground that the corporation conducted its business in violation of federal law. The corporation had been convicted of criminal violations prior to the initiation of the forfeiture proceeding and argued that the forfeiture action violated the Double Jeopardy Clause. Basing its decision in part on long-standing common law principles, the Court unanimously held that the clause was inapplicable to civil forfeiture actions. The Court did not again consider a double jeopardy case involving civil forfeiture until 40 years later, when it reaffirmed the rule of Various Items. In One Lot Emerald Cut Stones v. United States, 409 U.S. 232, 93 S.Ct. 489, 34 L.Ed.2d 438 (1972) (per curiam), the Court upheld a civil forfeiture of jewels following an acquittal on a smuggling charge against a double jeopardy challenge. In United States v. One Assortment of 89 Firearms, 465 U.S. 354, 104 S.Ct. 1099, 79 L.Ed.2d 361 (1984), the Court unanimously upheld the civil forfeiture of firearms following the acquittal of the gun owner on a charge of the illegal sale of firearms. The Court stated that "[u]nless the forfeiture sanction was intended as punishment, so that the proceeding is essentially criminal in character, the Double Jeopardy Clause is not applicable." 89 Firearms, 465 U.S. at 362, 104 S.Ct. at 1105.

The Court in 89 Firearms concluded that whether a statute is criminal and punitive, or civil and remedial, is a matter of statutory interpretation. As such, the Court adopted a two-prong test established in United States v. Ward, 448 U.S. 242, 248, 100 S.Ct. 2636, 2641, 65 L.Ed.2d 742 (1980), to aid courts in the exercise of statutory interpretation:

'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). The theme in all of these cases is consistent: forfeitures of this type are primarily remedial sanctions that do not constitute punishment for purposes of a double jeopardy analysis.

Despite the consistent trend in Various Items and its progeny, three United States Supreme Court cases in recent years have created some confusion in the area of double jeopardy jurisprudence. In 1989, the Supreme Court decided United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989). Halper involved a situation where a man was convicted of 65 counts of violating the criminal false-claims statute involving $585 actual loss. After he was sentenced in the criminal proceeding, the government brought an action under the civil False Claims Act, exposing Halper to a potential liability of $130,000. Because the Court found that the penalty was "entirely unrelated" to the actual damages suffered, it held that the civil penalty was a "second punishment" in violation of the Double Jeopardy Clause. Halper, 490 U.S. at 447-49, 109 S.Ct. at 1901-02. The Court noted that "the labels 'criminal' and 'civil' are not of paramount importance," for "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.

The Halper decision seemed to indicate the beginning of a changing tide in modern jurisprudence, particularly with respect to the civil/criminal distinction. It was followed by the Court's decision in Austin v. United States, 509 U.S. 602, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993). In Austin, the government initiated civil forfeiture proceedings against a body shop and a mobile home after the owner pleaded guilty to a drug offense. Relying on the distinction in Halper between punitive and remedial goals, the Court held that the Eighth Amendment's Excessive Fines Clause applies to in rem civil forfeiture proceedings and, because the forfeiture at issue did not serve solely a remedial purpose, it was invalidated by the Court. Id. at 622, 113 S.Ct. at 2812.

The case of Department of Revenue of Montana v. Kurth Ranch, 511 U.S. 767, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994), shed more confusion on the proper means of analyzing statutes to determine if they are punitive in nature. In Kurth Ranch, the Court concluded that the imposition of a drug tax on the parties after their criminal...