State v. Zimmerman, Cr. N

Decision Date31 October 1995
Docket NumberCr. N
Citation539 N.W.2d 49
PartiesSTATE of North Dakota, Plaintiff and Appellee, v. Edwin ZIMMERMAN, Defendant and Appellant. STATE of North Dakota, Plaintiff and Appellee, v. Albert E. KNUTSON, Defendant and Appellant. os. 950163, 950164.
CourtNorth Dakota Supreme Court

Jeff Rotering, State's Attorney, Hettinger, for plaintiff and appellee.

T.L. Secrest, Hettinger, for defendants and appellants.

Monte L. Rogneby, Assistant Attorney General, amicus curiae on behalf of North Dakota Department of Transportation.

SANDSTROM, Justice.

Defendants Edwin Zimmerman and Albert Knutson appeal their criminal convictions for driving under the influence of alcohol. Each contends his criminal prosecution constituted double jeopardy because his driver's license previously had been suspended in an administrative proceeding relating to the same conduct.

That criminal prosecution and administrative driver's license suspension do not constitute double jeopardy has been viewed as firmly established by State v. Sinner, 207 N.W.2d 495 (N.D.1973). Defendants argue the result in these cases now must be different because of recent United States Supreme Court decisions in United States v. Halper, 490 U.S. 435, 440, 109 S.Ct. 1892, 1897, 104 L.Ed.2d 487, 496 (1989); and Department of Revenue of Montana v. Kurth Ranch, --- U.S. ----, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994). We conclude defendants' arguments overreach the holdings in those cases, and analysis of those cases supports the opposite result.

We acknowledge defendants may view the outcomes of both the criminal and administrative proceedings as punishments for the same offense. The perspective of the defendants, however, does not control double jeopardy analysis involving criminal and administrative proceedings. We conclude the criminal and administrative proceedings do not constitute double jeopardy because the administrative action serves the remedial goal of protecting the public from impaired drivers, and the suspension of the license is not greatly disproportionate to the remedial goal. We, therefore, affirm the convictions.

I

Knutson, on December 31, 1994, and Zimmerman, on February 5, 1995, were charged with driving under the influence of alcohol, in violation of N.D.C.C. Sec. 39-08-01. Their driver's licenses were administratively suspended--Knutson's for 91 days and Zimmerman's for two years. 1 Knutson and Zimmerman filed motions to dismiss the criminal charges on the ground that the administrative suspension of their driving privileges constituted punishment within the meaning of the double jeopardy clauses of the United States and North Dakota constitutions. The district court denied the motions.

After their motions to dismiss were denied, Knutson and Zimmerman entered conditional pleas of guilty under Rule 11(a)(2), N.D.R.Crim.P. Knutson was fined $250 and ordered to undergo an alcohol addiction evaluation. Zimmerman was sentenced to four days in jail, fined $500, and ordered to undergo an alcohol addiction evaluation. 2 Knutson and Zimmerman appealed, contending administrative suspension of a driver's license is punishment for double jeopardy purposes.

The district court had jurisdiction under Art. VI, Sec. 8, N.D. Const., and N.D.C.C. Sec. 27-05-06. This Court has jurisdiction under Art. VI, Sec. 2, N.D. Const., and N.D.C.C. Sec. 29-28-06. The appeals were timely under Rule 4(b), N.D.R.App.P.

II

State legislatures and the Congress have enacted increasingly tougher laws in response to the carnage on our nation's highways. Kobilansky v. Liffrig, 358 N.W.2d 781, 791 (N.D.1984)("We may also take judicial notice of the carnage caused by the drunk driver."); South Dakota v. Neville, 459 U.S. 553, 558-59, 103 S.Ct. 916, 920, 74 L.Ed.2d 748, 755 (1983)("The carnage caused by drunk drivers is well documented and needs no detailed recitation here.") In addition to stricter laws, and greater punishments, implied-consent laws require submission to blood-alcohol tests, or for suspension of the driver's license for failure to submit to the test.

A

Our legislature has adopted two primary methods of dealing with drunk drivers. To punish and deter drunk driving, the legislature has enacted criminal proceedings. The legislature has enacted civil proceedings to protect the traveling public by temporarily removing drunk drivers from the highways.

In 1923, our legislature made operating a motor vehicle while intoxicated a misdemeanor punishable by a fine of $25 to $500, or imprisonment in a county jail for up to one year, or both fine and imprisonment, and authorized sentencing judges to suspend any sentence of imprisonment and preclude the offender from driving for a period of up to two years. S.L.1923, Ch. 254, Secs. 1 & 2 (codified as C.L.1913, Secs. 2976t10 and 2976t11 (1925 Supp.)). Our present criminal statute, N.D.C.C. Sec. 39-08-01, makes it a misdemeanor to drive or be in actual physical control of any vehicle upon a highway while the person has a blood alcohol concentration of at least ten one-hundredths of one percent by weight or is under the influence of intoxicating liquor. N.D.C.C. Sec. 39-08-01, requires a sentence of a fine of at least $250 and an order for addiction evaluation for a first offense and provides increasingly severe mandatory punishments for subsequent offenses.

In 1959, our legislature enacted the Implied Consent Act providing that a person operating a motor vehicle on public highways was deemed to have consented to a chemical test to determine the alcohol content of his or her blood, providing for a six-month revocation of a driver's license for refusal to submit to testing, and making chemical test results admissible evidence. S.L.1959, Ch. 286. Over the years, the Legislature has continued to increase DUI and Actual Physical Control (APC) prohibitions and penalties. See, e.g., S.L.1983, Ch. 415; S.L.1995, Ch. 378.

Our present Implied Consent Act is contained in Chapter 39-20, N.D.C.C. Any person who operates a motor vehicle on a highway is deemed to have consented to a chemical test to determine the alcohol content of his or her blood. N.D.C.C. Sec. 39-20-01. A person's refusal to submit to a chemical test results in revocation of the person's operator's license for one to three years, depending on the number of previous suspensions or revocations. N.D.C.C. Sec. 39-20-04. Under N.D.C.C. Sec. 39-20-04.1, if a chemical test shows an arrested person was driving or in physical control of a vehicle while having a blood alcohol concentration of at least ten one-hundredths of one percent by weight, the person's operator's license is suspended for 91 days, 365 days, or two years, depending on the number of times the person has violated N.D.C.C. Sec. 39-08-01 or has had his license suspended or revoked under Ch. 39-20, N.D.C.C.

B

Congress has enacted laws providing economic incentives for states to toughen driving under the influence laws, and to suspend or revoke driver's licenses through expedited administrative proceedings. 23 U.S.C. Sec. 410.

III

In State v. Sinner, this Court found there was no double jeopardy when the same conduct resulted in criminal prosecution and a separate administrative suspension of a driver's license.

Protection against double jeopardy is afforded by both our federal and state constitutions. "[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb...." Fifth Amendment, U.S. Const. "No person shall be twice put in jeopardy for the same offense...." Art. I, Sec. 12, N.D. Const.

Administrative proceedings suspending drivers' licenses are civil in nature, separate and distinct from any criminal proceedings from an arrest for violating N.D.C.C. Sec. 39-08-01, and dismissal or acquittal of a related criminal charge is irrelevant to the administrative proceedings. See, e.g., Williams v. North Dakota State Highway Comm'r, 417 N.W.2d 359 (N.D.1987); Pladson v. Hjelle, 368 N.W.2d 508 (N.D.1985); Asbridge v. North Dakota State Highway Comm'r, 291 N.W.2d 739 (N.D.1980); Clairmont v. Hjelle, 234 N.W.2d 13 (N.D.1975).

In Sinner, this Court held administrative suspension of a driver's license due to criminal convictions for traffic violations is not double jeopardy because it is not a penalty:

"5. A driver whose license has been administratively suspended due to his convictions for driving infractions is not thereby twice put in jeopardy for the same offense, because the administrative suspension of the driver's license is an exercise of the police power for the protection of the public rather than the imposition of an additional penalty."

Sinner at 496-97, Syllabus p 5 (N.D.1973).

This Court's decisions since Sinner are consistent with it. "The use of the public highways is not an absolute right ..., it is instead a privilege which a person enjoys subject to the control of the State in its valid exercise of its police power." State v. Kouba, 319 N.W.2d 161, 163 (N.D.1982). A driver "must abide by the laws of our state which are intended to make travel on our highways reasonably safe for all." Kouba. While "loss of driving privileges is not insubstantial and may entail economic hardship and personal inconvenience," Kobilansky v. Liffrig, 358 N.W.2d 781, 787 (N.D.1984), "a driver's license is subject to control and regulation by the state," and a driver's license may be revoked or suspended for violating laws intended to make highway travel reasonably safe. North Dakota Dep't of Transp. v. DuPaul, 487 N.W.2d 593, 598 (N.D.1992).

IV

The United States Supreme Court has not directly addressed the issue of double jeopardy in cases of criminal prosecution for DUI/APC, and administrative license suspension. In related matters, it has upheld the constitutionality of administrative suspension of a driver's licence for failure to submit to a blood alcohol test as required under an implied consent law. Neville. In addition, the United States Supreme Court has held Miranda...

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