US v. Imngren

• Citation: 914 F. Supp. 1326
• Decision Date: 13 December 1995
• Docket Number: Criminal No. 95-00458-A,95-00459-A.
• Parties: UNITED STATES of America v. Prasit IMNGREN. UNITED STATES of America v. Kenneth JOHNSON.
• Court: U.S. District Court — Eastern District of Virginia

914 F. Supp. 1326

UNITED STATES of America v. Prasit IMNGREN.

UNITED STATES of America v. Kenneth JOHNSON.

Criminal Nos. 95-00458-A, 95-00459-A.

United States District Court, E.D. Virginia, Alexandria Division.

December 13, 1995.

Scott Lawson, Assistant United States Attorney, Alexandria, VA, for Plaintiff.

D. Curtis Danielson, Alexandria, Virginia, for Defendants.

MEMORANDUM OPINION

CACHERIS, Chief Judge.

The issue in this case is whether a driving license suspension for one year on all military installations constitutes double jeopardy to a person charged with driving under the influence. This Court finds the suspension for one year violates the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution.

This matter is before the Court on consolidated appeal filed by the United States in the cases styled United States v. Prasit Imngren, and United States v. Kenneth Johnson.

I.

On January 10, 1995, at Fort Belvoir, Defendant Johnson was stopped by military policemen for driving 63 miles per hour in a posted 35 mile per hour zone. Allegedly, the military policemen developed probable cause to believe that Defendant Johnson had been drinking and arrested him for DUI. Defendant Johnson was given a breath alcohol content ("BAC") test which showed a BAC of 0.07% by volume. The Fort Belvoir Garrison Commander then suspended Defendant Johnson's post driving privileges. Defendant Johnson was subsequently charged with DUI after having been previously convicted of a DUI offense within five years, in violation of 18 U.S.C. § 13 and Va.Code § 18.2-266(ii); reckless driving, in violation of 18 U.S.C. § 13 and Va.Code § 46.2-862(i); and driving with a suspended license, in violation of 18 U.S.C. § 13, and Va.Code § 46.2-301.

On March 23, 1995, at Fort Belvoir, Defendant Imngren was stopped for a traffic violation. Suspecting that Defendant Imngren was intoxicated, the military policeman asked him to take a BAC test. Defendant Imngren refused to take the test. The Fort Belvoir Garrison Commander then suspended Defendant Imngren's post driving privileges. Defendant Imngren was subsequently charged with DUI; refusing to take a BAC test, in violation of 18 U.S.C. § 3118(b); and failing to drive in a single lane, in violation of 32 C.F.R. 634.25(f) and Virginia law.

In each of these cases, the defendant was driving on a roadway in Fairfax County, Virginia, at a location within the boundaries of Fort Belvoir, a federal military installation post (hereinafter "post"), and within the special maritime and territorial jurisdiction of the United States. Each defendant had his post driving privileges suspended by the Fort Belvoir Garrison Commander after he was arrested for driving while under the influence of alcohol ("DUI") on Fort Belvoir.

Subsequently, each defendant was charged with DUI in the United States District Court for the Eastern District of Virginia, in violation of 18 U.S.C. 13, assimilating Va.Code Ann. § 18.2-266. A magistrate judge dismissed each defendant's DUI charge on the ground that the suspension of the defendant's post driving privileges constituted prior punishment under the Double Jeopardy Clause.

On consolidated appeal, the Government appeals the magistrate's dismissal of each defendant's DUI charge. Essentially, the Government argues that the magistrate judge's ruling should be reversed because Fort Belvoir's driving privilege suspension scheme is not punishment under the Double Jeopardy Clause.

II.

The Double Jeopardy Clause of the Fifth Amendment guarantees that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." U.S. Const. amend. V. The Double Jeopardy Clause provides three separate protections for criminal defendants: "(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." United States v. Halper, 490 U.S. 435, 440, 109 S.Ct. 1892, 1897, 104 L.Ed.2d 487 (1989).

While the majority of Double Jeopardy Clause cases involve the prohibition of two criminal prosecutions, the Double Jeopardy Clause also applies to civil actions by the Government, which prevents a defendant from being subject to both civil and criminal penalties, that are intended to be punitive. See, Halper, 490 U.S. at 448, 109 S.Ct. at 1901-02 ("Simply put, a civil as well as a criminal sanction constitutes punishment when the sanction as applied in the individual case serves the goals of punishment."). Therefore, if the Government takes civil action first and the civil sanction constitutes punishment, the Double Jeopardy clause bars a subsequent criminal trial. See, United States v. Mayers, 897 F.2d 1126, 1127 (11th Cir.) (per curiam), cert. denied, 498 U.S. 865, 111 S.Ct. 178, 112 L.Ed.2d 142 (1990) (the Halper principle applies whether civil penalty or criminal punishment comes first).

In the instant cases, each defendant argued before the magistrate judge that the suspension of his right to operate a motor vehicle on all military installations¹ for the period of one year was a punishment proscribed by the Double Jeopardy Clause.

In making its determination that the Government's prosecution of each defendant in federal court constituted a successive attempt to impose punishment in violation of the Double Jeopardy Clause, the magistrate court held that the administrative license suspension pursuant to Army regulation 190-5² and each defendant's pending criminal prosecution constituted separate proceedings, and that the one year administrative license suspension pursuant to Army regulation 190-5 constituted punishment.

The Government concedes, as it must, that the administrative sanction was a separate proceeding for the same offense under the requirements of Halper, supra, 490 U.S. 435, 109 S.Ct. 1892; Austin v. United States, 509 U.S. 602, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993); and Department of Revenue of Montana v. Kurth Ranch, ___ U.S. ___, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994).³

The gravamen of the Government's argument is that the Army's driving privileges suspension regulation is remedial, not punitive, and thus, the Army's suspension of a drunken driver's military base driving privileges for one year does not constitute punishment under the Double Jeopardy Clause.

Thus, the issue before this Court today is whether the one year administrative license suspension pursuant to Army Regulation 190-5 constitutes punishment, and as such, bars a second prosecution in the present criminal proceedings based on the same conduct which caused each defendant to be "sanctioned" by the Fort Belvoir Garrison Commander.

The Supreme Court has refused to engage in semantics with respect to whether a sanction constitutes punishment for double jeopardy purposes. The Court has noted that the labels of criminal or civil "are not of paramount importance." Halper, 490 U.S. at 447, 109 S.Ct. at 1901. Rather, "the notion of punishment, as we understand it, cuts across the division between the civil and the criminal law, and for the purpose of assessing whether a given sanction constitutes multiple punishment barred by the Double Jeopardy Clause, we must follow the notion where it leads." Id. at 447-48, 109 S.Ct. at 1901.

In recognizing that the talismanic incantation of mere words cannot determine whether a civil sanction constitutes multiple punishments for double jeopardy purposes, the Supreme Court has set forth the following test: "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, as we have come to understand the term." Id. at 448, 109 S.Ct. at 1902.

More recently, the Supreme Court has reaffirmed its definition of punishment as stated in Halper. The Court restated that the initial double jeopardy inquiry is whether the regulation is solely remedial or has deterrent or retributory characteristics. See Austin, 509 U.S. at ___, 113 S.Ct. at 2806 (quoting Halper, 490 U.S. at 448, 109 S.Ct. at 1902) ("Fundamentally ...' 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 as we have come to understand the term."); Kurth Ranch, ___ U.S. at ___, 114 S.Ct. at 1945 (citing Halper) ("A defendant convicted and punished for an offense may not have a non-remedial civil penalty imposed upon him for the same offense in a separate proceeding.").

Consequently, the Supreme Court has made it clear that a civil sanction, designed even in part to deter or punish, constitutes punishment for double jeopardy purposes, regardless of whether it also has a remedial purpose. See United States v. $405,089.23 in U.S. Currency, 33 F.3d 1210, 1219 (9th Cir. 1994); United States v. Hudson, 14 F.3d 536, 540 (10th Cir.1994).

In the instant case, each defendant, after being arrested for DUI by the Fort Belvoir military police, was notified by letter that the Fort Belvoir Garrison Commander had suspended their privilege to operate a motor vehicle on all military installations for one year pursuant to Army regulation 190-5. The notice letter stated that the suspension was "administrative" in nature and informed each defendant that he could request a hearing before the Installation Driving Privileges Review Board ("IDPRB") to determine if his driving privileges would be restored pending resolution of the criminal charge, by submitting a written request to the Provost Marshal Office within 10 days of receipt of the letter.

Further, the notice stated that each defendant could present evidence and witnesses, and be represented by counsel at the IDPRB, but only at his own expense.⁴

Moreover, driving privileges could be reinstated only upon request, regardless of the outcome of the pending criminal charges. The...