State v. Mertz
| Decision Date | 08 December 1995 |
| Docket Number | No. 74027,74027 |
| Citation | 907 P.2d 847,258 Kan. 745 |
| Parties | STATE of Kansas, Appellant, v. John D. MERTZ, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. A trial court's decision that double jeopardy applies to uncontroverted facts is a determination of law. Thus, this court may exercise an unlimited, de novo standard of review.
2. The Fifth Amendment Double Jeopardy Clause of the United States Constitution states: "[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb." The double jeopardy guaranty is enforceable against the states through the Fourteenth Amendment. The double jeopardy protection guaranteed in the Kansas Constitution Bill of Rights is equivalent to the protection guaranteed in the United States Constitution.
3. The Double Jeopardy Clause of the United States Constitution provides three different types of protection for a person charged with a crime. Double jeopardy protection shields an accused from: (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.
4. The determination of whether a given civil sanction constitutes punishment for double jeopardy purposes requires a particularized assessment of the penalty which the sanction may fairly be said to serve. A civil as well as a criminal sanction constitutes punishment when the sanction as applied in the individual case serves the goals of punishment.
5. 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.
6. In determining if a civil proceeding has a retributive, deterrent, or remedial purpose, a court must use common sense. The court makes this determination from the objective viewpoint and not fromthe subjective viewpoint of the defendant.
7. The rules announced in United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989), concerning the issue of whether a civil sanction constitutes punishment so as to prohibit a criminal prosecution for the same offense are rules for the rare case.
8. A sanction which protects the public from harm or a sanction which revokes a privilege that is being abused carries a remedial purpose.
9. Legislation which is regarded as remedial in its nature includes statutes having for their purpose the promotion of justice and the advancement of public welfare and beneficial public objects, such as the protection of health, morals, and safety of society, or of the public generally.
10. The driver's license suspension sanction in this case serves a purpose which is solely remedial in that the sanction's purpose is to protect the public. The suspension sanction quickly removes dangerous drivers from the street to prevent them from injuring anyone. Any harmful effect which the sanction may have on the driver indicates that the sanction may appear to be punitive from the driver's perspective. Such harmful effects do not necessarily indicate that the sanction carries purposes of punishment such as deterrence and retribution. While certainly the sanction may be interpreted as having punitive effects, this does not mean the sanction must be interpreted as having punitive effects. Thus, the sanction does not serve the purpose of punishment. Rather, it protects the public safety as a solely remedial sanction.
11. In Kansas, a driver's license is not a natural right, but a privilege granted by the State. If a driver abuses this privilege, the State is entitled to take the privilege away.
12. A sanction which revokes a privilege is a remedial sanction, not a punitive sanction. Thus, the sanction in this case is remedial for two reasons. One, it is remedial because it protects the public welfare. Two, it is remedial because the suspension revokes a privilege which is being abused.
Glenn R. Braun, County Attorney, argued the cause, and Carla J. Stovall, Attorney General, was with him on the brief, for appellant.
Michael S. Holland, Russell, argued the cause and was on the brief, for appellee.
James G. Keller, of Kansas Department of Revenue, was on the brief, for amicus curiae Kansas Department of Revenue.
This is an appeal by the State from the trial court's dismissal of criminal charges (driving while under the influence of alcohol in violation of K.S.A.1994 Supp. 8-1567[a] ) on the ground of double jeopardy because the defendant, John D. Mertz, had already had his driver's license suspended and restricted for failing a breath test.
Mertz was arrested on September 1, 1994, in Ellis County, on suspicion of driving while under the influence of alcohol. The defendant submitted to a breath test which showed the alcohol concentration in his blood was .08 or more. As a result, the State filed criminal charges against the defendant pursuant to K.S.A.1994 Supp. 8-1567(a)(2) for driving while under the influence of alcohol.
While criminal charges were pending, the Department of Revenue, Division of Vehicles, held an administrative hearing on January 4, 1995. Based on the defendant's breath test of September 1, 1994, the Department of Revenue examiner suspended the defendant's driver's license for a period of 30 days and restricted it for an additional 330 days pursuant to K.S.A.1994 Supp. 8-1014.
Thereafter, the defendant filed a motion to dismiss the criminal charges. The defendant contended he had already been subject to punishment by the administrative suspension of his driver's license. Thus, he argues, the criminal charges exposed him to multiple punishments in violation of the double jeopardy clauses in the Fifth Amendment of the United States Constitution and § 10 of the Kansas Constitution Bill of Rights. The trial court granted the defendant's motion and dismissed the criminal charges.
The district court found that allowing the State to proceed with criminal charges against the defendant would constitute multiple punishment and thereby violate the double jeopardy protections. Relying on United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989), the district court pointed out that an administrative civil sanction could constitute "punishment" for double jeopardy purposes. Under Halper, a civil sanction qualifies as "punishment" for double jeopardy purposes if any purpose behind the sanction is punitive or deterrent. According to the trial court, the only civil sanction which does not qualify as "punishment" is one which has an exclusively remedial purpose.
The trial court found the suspension of a driver's license has a remedial purpose in that it keeps dangerous drunk drivers off the road. However, it also found the suspension has punitive and deterrent purposes. For instance, when a police officer asks a driver to take a breath test, the officer must warn the driver of the consequences of failing the test. Moreover, the driver may suffer a significant personal impact, including the loss of his or her job, if his or her license is suspended. According to the trial court, the warnings and severe consequences associated with a license suspension indicate the suspension has retributive and deterrent effects. Thus, the trial court found the Department of Revenue's ruling, license suspension for 30 days and license restriction for 330 days, constituted punishment against the defendant for driving while under the influence of alcohol. Allowing the State to punish the defendant again through criminal prosecution for the same offense would result in multiple punishment and expose the defendant to double jeopardy. To avoid violation of the double jeopardy clauses, the district court dismissed the criminal proceedings against the defendant.
The State appeals to this court from that decision. Jurisdiction is based upon K.S.A.1994 Supp. 22-3602(b)(1). We allowed the Kansas Department of Revenue to file an amicus curiae brief.
The trial court concluded that the administrative suspension of a driver's license constitutes "punishment" for double jeopardy purposes. This is a determination of law. Thus, this court may exercise an unlimited, de novo standard of review. See Dickerson v. Kansas Dept. of Revenue, 253 Kan. 843, 844, 863 P.2d 364 (1993); State v. Nelson, 249 Kan. 689, 692, 822 P.2d 53 (1991). The parties concur that this is the appropriate standard of review.
K.S.A. 8-1001 et seq., also called the Implied Consent Law, is the statute which authorizes the Department of Revenue to suspend a person's driver's license. A brief review of this law will be helpful in assessing the issues presented to this court. K.S.A.1994 Supp. 8-1001(a) states that any person who drives a car in Kansas is deemed to consent to a chemical test in order to determine the driver's blood alcohol concentration. Before a police officer conducts a test, the officer must provide the driver with certain warnings. K.S.A.1994 Supp. 8-1001(f)(1). Such warnings include: If a person refuses to submit to a chemical test, the person's driving privileges will be suspended for 1 year. K.S.A.1994 Supp. 8-1001(f)(1)(D). If the person consents to a test and the person's blood alcohol concentration registers .08 or more, then the person's driving privileges will be suspended for 30 days. K.S.A.1994 Supp. 8-1001(f)(1)(E). The results of the test or the refusal to submit to a test may be used against the person at a criminal trial for driving while under the influence of alcohol. K.S.A.1994 Supp. 8-1001(f)(1)(G), (H). Under K.S.A.1994 Supp. 8-1014(b) and (c), if a person registers .08 or more on a chemical test, the division of motor vehicles shall "suspend the person's driving privileges for 30 days," then restrict the person's driving privileges for an additional 330 days on the first occurrence.
I. DOUBLE JEOPARDY
The Fifth Amendment Double Jeopardy Clause of the United States...
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State v. Burnell, No. 18139.
...[r]evenue, nor did the administrative resolution of their civil cases in their favor constitute `acquit tals.'"); State v. Mertz, 258 Kan. 745, 750-51, 907 P.2d 847 (1995) ("even though the defendant's license has been administratively suspended, the defendant has not been `prosecuted' for ......
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