State v. Mullenix

• Decision Date: 16 April 2002
• Docket Number: No. WD 60052.,WD 60052.
• Citation: 73 S.W.3d 32
• Parties: STATE of Missouri, Appellant, v. Micah C. MULLENIX, Respondent.
• Court: Missouri Court of Appeals

73 S.W.3d 32

STATE of Missouri, Appellant, v. Micah C. MULLENIX, Respondent.

No. WD 60052.

Missouri Court of Appeals, Western District.

April 16, 2002.

David A. Baird, Pros. Atty., Nodaway County, Maryville, for appellant.

James R. Hall, Oak Grove, for respondent.

Before HOWARD, P.J., BRECKENRIDGE and NEWTON, JJ.

PATRICIA BRECKENRIDGE, Judge.

The State appeals from a judgment granting Micah Mullenix's motion to dismiss a charge against him of driving while intoxicated, because Mr. Mullenix's right to be free from double jeopardy precluded prosecuting him. The trial court ruled that sanctions taken by the Northwest Missouri State University (NMSU) student-faculty discipline committee, after Mr. Mullenix was arrested for driving while intoxicated on campus, barred the State from prosecuting Mr. Mullenix for driving while intoxicated. On appeal, the State argues that the trial court erred in granting Mr. Mullenix's motion because the administrative disciplinary sanctions taken by NMSU for violation of its campus conduct policy were neither criminal in form nor criminal in application. This court finds that Mr. Mullenix had the burden to prove his affirmative defense that his double jeopardy right to be free of multiple criminal punishments was violated by the criminal prosecution for driving while intoxicated. As a matter of law, he did not meet his burden because the Missouri legislature intended that the administrative disciplinary proceedings impose civil penalties, and there was no evidence that the administrative disciplinary scheme was so punitive that it transformed what was intended as a civil penalty into criminal. The judgment is reversed, and the cause remanded for further proceedings.

Factual and Procedural Background

In the record on appeal, there is no transcript from the hearing upon Mr. Mullenix's motion to dismiss. The trial court record indicates that only argument of counsel was heard, which was confirmed by the attorney for Mr. Mullenix on appeal. Nevertheless, the trial court considered documentary evidence that was attached to the petition or apparently submitted by Mr. Mullenix to the trial court. The facts within these documents are cited by both Mr. Mullenix and the State in their appellate briefs, so both parties apparently concede that these documents were properly before the trial court and properly considered as evidence.

The documentary evidence establishes that, in the fall of 2000, Micah Mullenix was a student at NMSU. On November 19, 2000, Mr. Mullenix was driving a vehicle through campus when he drove off the road into the grass and over a manhole in front of one of the campus buildings. While Mr. Mullenix was able to drive back onto the road, the vehicle was disabled from striking the manhole cover. A NMSU police officer came upon the vehicle parked in the west bound lane of West Seventh Street, and observed Mr. Mullenix standing outside the car. When the officer asked Mr. Mullenix why he was stopped in the road, Mr. Mullenix responded that his car had stopped running.

The officer detected an odor of intoxicants about Mr. Mullenix and, in response to the officer's inquiry, Mr. Mullenix admitted that he had been drinking. The officer administered field sobriety tests, which Mr. Mullenix failed. The officer then placed Mr. Mullenix under arrest for driving while intoxicated in violation of § 577.010, RSMo.2000.¹ The officer took Mr. Mullenix to the campus safety office, where the officer read Mr. Mullenix his Miranda² rights. Another officer administered a BAC verifier, and the result was that Mr. Mullenix's blood alcohol content was 0.168 percent.

Mr. Mullenix was given a traffic citation, labeled "Uniform Complaint and Summons," which charged him with the crime of driving while intoxicated in violation of § 577.010. He also was given a "Department of Campus Summons for Appearance in the Office of Student Affairs." The uniform complaint was forwarded to the prosecuting attorney for Nodaway County. On November 28, 2000, the State filed an information, charging Mr. Mullenix with the class B misdemeanor of driving while intoxicated.

On January 11, 2001, Mr. Mullenix appeared before the NMSU student-faculty discipline committee, which considered the charge of "(1) Violation of University policies, city ordinances or state and federal laws other than those listed in [the university] handbook—Driving While Intoxicated, a class `C' violation." Mr. Mullenix "pled in violation to the charge," and the committee voted to accept his plea. The committee placed Mr. Mullenix on strict campus conduct probation for the remainder of the calendar year and ordered him to attend one session of the "alcohol after hours" program, perform five hours of assigned service, and pay a $150 fine.

Thereafter, Mr. Mullenix filed a motion to dismiss the criminal charges brought against him in Nodaway County. In his motion, Mr. Mullenix alleged that the prosecution of these charges violated his Fifth Amendment protection against double jeopardy. After hearing argument on Mr. Mullenix's motion, the court granted Mr. Mullenix's motion. The State appeals.

Standard of Review

This court examines questions of law de novo and defers "to the trial court's factual findings and credibility determinations." State v. Werner, 9 S.W.3d 590, 595 (Mo. banc 2000). The determination of whether the protections against double jeopardy apply is a question of law which this court reviews de novo. See State v. White, 931 S.W.2d 825, 828 (Mo.App.1996) (reviewing the denial of the defendant's double jeopardy claim de novo).

Proof of Double Jeopardy Fails

In its point on appeal, the State claims that the circuit court erred in sustaining Mr. Mullenix's motion to dismiss, in that double jeopardy does not apply because "administrative disciplinary sanctions by an educational institution for violation of its campus conduct policy are neither criminal in form, nor criminal in application." Therefore, the State argues that the sanctions taken by NMSU should not preclude the criminal prosecution of Mr. Mullenix for driving while intoxicated.

The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution provides that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." This protection is made applicable to the states through the Fourteenth Amendment. Milner v. State, 975 S.W.2d 240, 242 n. 3 (Mo.App.1998) (citations omitted). While Missouri's double jeopardy protection is derived from common law,³ State v. Frances, 51 S.W.3d 18, 21 (Mo.App.2001), "there is no readily discernible difference between the Fifth Amendment guarantee against double jeopardy, enforceable against the states through the Fourteenth Amendment, and the common law guarantee as applied in this State." State v. Treadway, 558 S.W.2d 646, 651 (Mo. banc 1977). Because double jeopardy is an affirmative defense, it is the defendant's burden to prove that double jeopardy applies. White, 931 S.W.2d at 828.

"Three distinct abuses are prevented by the Double Jeopardy Clause: (1) a subsequent prosecution for the same offense after acquittal; (2) a subsequent prosecution for the same offense after conviction; and (3) multiple punishments for the same offense." State v. Mayo, 915 S.W.2d 758, 759 (Mo. banc 1996) (citations omitted). The third of these abuses is at issue in this case. With regard to multiple punishments, the Double Jeopardy Clause does not prohibit all additional sanctions that could be considered punishment. Hudson v. U.S., 522 U.S. 93, 98-99, 118 S.Ct. 488, 493, 139 L.Ed.2d 450 (1997). "The Clause protects only against the imposition of multiple criminal punishments for the same offense, and then only when such occurs in successive proceedings." Id. at 99, 118 S.Ct. at 493 (citations omitted).

The United States Supreme Court has addressed whether impermissible multiple punishments occur when an individual is criminally prosecuted after an administrative body imposed sanctions upon the individual. See id. at 96, 118 S.Ct. at 491. In Hudson, the Court held that the initial inquiry in determining whether a punishment is criminal or civil is a matter of statutory construction. Id. at 99, 118 S.Ct. at 493. In its analysis, the Court stated that there is a two-part analysis to determine whether an administrative sanction is criminal or civil. Id. at 99, 101, 118 S.Ct. at 493, 494. The first prong is to determine whether the intent of the authorizing statute is to impose criminal or civil penalties. Id. at 99, 118 S.Ct. at 493. In determining whether Congress intended the sanction to be criminal or civil, the Court stated that, if the authority to impose the sanction is given to an administrative agency, there is prima facie evidence that Congress intended to provide for a civil sanction. Id. at 103, 118 S.Ct. at 495.

If the legislature intended the penalty to be civil, the second prong is to determine "`whether the statutory scheme [is] so punitive either in purpose or effect,' ... as to `transfor[m] what was clearly intended as a civil remedy into a criminal penalty.'" Id. at 99, 118 S.Ct. at 493 (quoting U.S. v. Ward, 448 U.S. 242, 248-49, 100 S.Ct. 2636, 2641, 65 L.Ed.2d 742 (1980), also quoting Rex Trailer Co. v. U.S., 350 U.S. 148, 154, 76 S.Ct. 219, 222, 100 L.Ed. 149 (1956)). In applying the second prong, the court stated that the seven factors enumerated in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 567-68, 9 L.Ed.2d 644 (1963), are useful guideposts. Hudson, 522 U.S. at 99-100, 118 S.Ct. at 493. Those factors are: "(1) `[w]hether the sanction involves an affirmative disability or restraint'; (2) `whether it has historically been regarded as punishment'; (3) `whether it comes into play only on a finding of scienter'; (4) `whether its operation will promote the traditional aims of punishment-retribution and deterrence'; (5) `whether the behavior to which it...