Double Jeopardy vs. DUI: Is a License Revocation for Driving Under the Influence Punishment or a Remedial Sanction?

Transcription

1 Double Jeopardy vs. DUI: Is a License Revocation for Driving Under the Influence Punishment or a Remedial Sanction? I. NTRODUCTION Under Massachusetts law, an individual automatically loses his or her driver's license 1 if he or she fails a breathalyzer test 2 or refuses a chemical test. 3 Most states have similar laws enacted to protect the public from drunken drivers. 4 In Massachusetts, as in most states, the laws pertaining to driving under the influence (DUI) allow an immediate revocation of one's driver's license for failing or refusing the breathalyzer test, which can then be contested at an administrative hearing. 5 The defendant may also face subsequent criminal prosecution for the DUI charge. 6 Critics argue that these laws violate double jeopardy principles A criminal statute infringes upon double jeopardy standards unless three elements are present: both punishments must arise out of the same act or offense, there must be two separate proceedings with two separate punishments, and the statute or law in question must constitute a reme- 1. See MASS. GEN. LAWS ch. 90, 24 (1994 & Supp. 1996). 2. See id A person fails the test if his or her blood alcohol content is.10 or higher. See id 3. See i. 24(l)(f)(1). 4. See, e.g., OMO REV. CODE ANN (Banks-Baldwin 1995); MINN. STAT. ANN (West 1994); Tax. REv. Civ. STAT. ANN. art (West 1993), repealed by 1995 Tex. Sess. Law Serv. 165 (West); N.Y. VEH. & TRAP. LAW 1192 (McKinney 1995). 5. See generally MASS. GEN. LAWS ch. 90, 24 (1994 & Supp. 1996). 6. See id. 7. Blacks Law Dictionary defines double jeopardy as a "Fifth Amendment guarantee, enforceable against states through [the] Fourteenth Amendment, which protects against second prosecution for [the] same offense after acquittal or conviction, and against multiple punishments for [the] same offense." BLACKS LAW DICrIONARY 491 (6th ed. 1990). 239

2 240 CRIMINAL AND CIVIL CONFINEMENT [Vol. 23:239 dial action, not a punishment! The Massachusetts DUI statute does violate the double jeopardy clause of the Fifth Amendment of the United States Constitution.' First, the civil punishment of revoking the defendant's license and the DUI criminal prosecution arise out of the same offense. Second, a civil administrative hearing is a separate proceeding from a criminal proceeding. Finally, license revocation is a form of punishment, even though it may have a remedial basis. Most courts that have faced this issue do not dispute the first two elements, but focus instead on the issue of punishment." 0 Those courts that have held that DUI statutes do not violate double jeopardy principles, with the exception of New York," have stated that license revocation prior to an administrative hearing is remedial and not a form of punishment.' 2 A fine line exists between what is remedial and what is punishment. The problem with the interpretation of courts who hold that the DUI statutes fail to raise double jeopardy implications is that their arguments proving the remedial nature of license revocation are the 8. See generally Jesselyn McCurdy, Talking Points: Double Jeopardy/Administrative License Revocation, 29 PROSECUTOR 21 (1995). 9. See generally id. 10. See, e.g., Luk v. Commonwealth, 421 Mass. 415, 658 N.E.2d 664 (1995); Leduc v. Commonwealth, 421 Mass. 433, 657 N.E.2d 755 (1995); State v. Gustafson, No. 94 C.A. 232, 1995 WL , (Ohio App. 7d June 7, 1995); State v. Sims, No. 94 C.A , 1995 WL , (Ohio App. 12d Aug. 21, 1995); State v. Hanson, 532 N.W.2d 598 (Minn. 1995). 11. The New York Legislature drafted the its DUI statute to include license revocation in the criminal DUI proceeding. See People v. McLees, 631 N.Y.S.2d 990, 995 (Dist. Ct. Suffolk County 1995) (citing N.Y. VEH. & TRAF. LAW 1193(2)(e)(7) (McKinney 1995)). License suspension occurs during arraignment. See id. at See, e.g., Luk v. Commonwealth, 421 Mass. 415, 658 N.E.2d 664 (1995); Leduc v. Commonwealth, 421 Mass. 433, 657 N.E.2d 755 (1995); State v. Sims, No. 94 C.A , 1995 WL , (Ohio App. 7d June 7, 1995); and State v. Hanson, 532 N.W.2d 598 (Minn. 1995); see also United States v. Usery, 116 S. Ct (1996). In Usery, while ruling on an issue tangential to the one at hand, Justice Stevens hinted that if a case involving a double jeopardy claim for DUI sanctions was to be heard by the Court, it would most likely uphold the existing state rulings. See Usery, 116 S. Ct. at 2161 n.16 (Stevens, J., dissenting). As I have emphasized, the determination that 21 U.S.C. s. 881(a)(7) is a punitive statute is perfectly consistent with a conclusion that other types of sanctions are remedial. For example, I would expect that many types of administrative licensing sanctions are remedial in the relevant sense of our cases. Id. (Stevens, J., dissenting). As the following analysis in this Note proves, however, a determination that such sanctions are remedial is incorrect.

3 1997] DUI VS. DOUBLE JEOPARDY same arguments one would use to prove punishment. This Note focuses mainly on the Massachusetts DUI statute, 3 but its recommendations apply to the statutes of all states. Section 11 examines the history of double jeopardy, both in federal jurisprudence and in Massachusetts. Section I focuses on the constitutionality and application of the Massachusetts DUI statute. Section IV compares and contrasts the DUI statutes of New York and Ohio with that of Massachusetts. Because courts deciding this issue, regardless of what state, all focus on similar policy and statutory considerations, an examination of all fifty states is unnecessary. On the other hand, an analysis of the New York and Ohio statutes is appropriate for several reasons: the New York statute differs from the Massachusetts statute in that New York combined the license revocation with the criminal proceeding; and Ohio is one of the only states in which a court has ruled at the appellate level in favor of a defendant and found a double jeopardy violation. Section V analyzes the double jeopardy principles with regard to the DUI statutes discussed in Section IV, and focuses on the issue of punishment. Section VI recommends means by which Massachusetts and other states can change the drafting of their DUI statutes to avoid subjecting a party to double jeopardy. This recommendation will apply no matter how a state has, or will, rule on this issue. II. THE HISTORY OF DOUBLE JEOPARDY "[NIor shall any person be subject for the same offence to be twice put in jeopardy of life or limb."' 4 The Fifth Amendment to the United States Constitution protects an individual from being tried and punished twice for the same offense See generally, MASS. GEN. LAWS ch. 90, 24 (1994 & Supp. 1996). 14. U.S. CONST. amend. V (emphasis added). The amendment states: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger, nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall any person be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. I 15. See Commonwealth v. Woods, 414 Mass. 343, 344, 607 N.E.2d 1024, 1027 (1993). Woods, after drinking alcohol with friends, drove his father's car into a tree. See id. Two passengers were killed, and Woods and another passenger were seriously injured. See id. When Woods' blood alcohol level was tested several hours after the

4 CRIMINAL AND CIVIL CONFINEMENT [Vol. 23:239 In 1969, the Supreme Court extended the Fifth Amendment to the states through the Fourteenth Amendment. 6 Massachusetts' Declaration of Rights does not explicitly include a double jeopardy clause, but Massachusetts courts have recognized the concept throughout the commonwealth's history. 7 The double jeopardy clause serves to prevent the government from subjecting a party to repeated attempts at conviction, thereby exposing that party "to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity."'" Three basic protections stem from this clause. A person is protected against a second prosecution for the same offense after acquittal, against a second prosecution for the same offense after conviction, and against multiple punishments for the same offense. 9 In order for an individual to invoke the protections of the proscriptions against double jeopardy, he or she must prove three elements: the punishments must have arisen out of the same act or offense, both prosecutions must have occurred in separate proceedings and must have resulted in separate punishments, and the penalty imposed must have been a punishment and not remedial in nature.' 0 Courts traditionally examined these elements only in dual criminal proceedings, 2 ' but have since extended the inquiry to dual prosecution in a criminal and subsequent civil proceeding.' accident, it registered.03. See id. Woods was found guilty of "vehicular homicide by negligent operation in violation of G.L. c. 90, 24G(a)... [and] operating after the suspension of his license pursuant to G.L. c. 90, 24N." Id. In order to prove vehicular homicide by negligent operation of a motor vehicle, the State may introduce evidence of driving under the influence of alcohol. See id. This court concluded that such evidence did not violate double jeopardy, even though Woods was acquitted during a bench trial of the charge of operating a motor vehicle under the influence of alcohol. See id. at See Benton v. Maryland, 395 U.S. 784, 787 (1969). 17. See Thames v. Commonwealth, 365 Mass. 477, 477, 312 N.E.2d 569, 570 (1974). 18. Grady v. Corbin, 495 U.S. 508, 518 (1990) (quoting Green v. United States, 355 U.S. 184, 187 (1957)). 19. See North Carolina v. Pearce, 395 U.S. 711, 717 (1969). 20. See McCurdy, supra note 8, at See generally Blockburger v. United States, 284 U.S. 299 (1932). The defendant faced dual criminal prosecution under two separate sections of the Harrison Narcotic Act. See id. at The Harrison Narcotic Act forbids the sale of drugs if not sold in conformity with required internal revenue code forms. See Harrison Narcotic Act, 26 U.S.C. 692 (1994). 22. See Department of Revenue v. Kurth Ranch, 511 U.S. 767 (1994) (extending double jeopardy analysis to include civil tax penalties for drug possession); United States v. Halper, 490 U.S. 435 (1989) (extending double jeopardy to include civil

5 1997] DUI VS. DOUBLE JEOPARDY A. The Punishments Arise Out of the Same Act or Offense A punishment is said to arise out of the same act or offense if, "to establish an essential element of an offense charged in [the second] prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted." ' In other words, if a person has violated two distinct statutory provisions, double jeopardy will not bar a subsequent prosecution under one, after a conviction or acquittal under the other, if each separate provision requires "proof of an additional fact [or element] which the other [provision] does not."' In Blockburger v. United States,' the government charged the defendant with violating the Harrison Narcotic Act. 26 Section one of the Act made it an offense to sell "any of the forbidden drugs except in or from the original stamped package," while section two made it an offense to sell "any of such drugs not in pursuance of a written order of the person to whom the drug is sold." ' The Court concluded that the statute, on its face, created two separate offenses. 28 Since each offense required proof of different elements they were not the same and therefore raised no double jeopardy issue." It follows then that if two events arise out of the same transaction, they still may not comprise the same conduct for double jeopardy purposes. Double jeopardy may also bar a prosecution if one of the offenses is a "lesser included" element of another offense. 3 ' For example, in sanctions under the civil False Claims Act, 31 U.S.C (1994)). 23. Grady, 495 U.S. at Blockburger, 284 U.S. at U.S. 299 (1932). 26. See id, at 300. The Harrison Narcotic Act states that: It shall be unlawful for any person to purchase, sell, dispense, or distribute any of the aforesaid drugs [opium and other narcotics] except in the original stamped package or from the original stamped package; and the absence of appropriate tax-paid stamps from any of the aforesaid drugs shall be prima facie evidence of a violation of this section by the person in whose possession same may be found.... It shall be unlawful for any person to sell, barter, exchange, or give away any of the drugs specified in secribn 691 of this title, except in pursuance of a written order of the person to whom such article is sold, bartered, exchanged, or given on a form to be issued in blank for that purpose by the Commissioner of Internal Revenue. Id. at 301 (quoting 26 U.S.C. 692, 696 (1930)). 27. Id. at See id. at See id. 30. See Commonwealth v. Woods, 414 Mass. 343, 350, 607 N.E.2d 1024, 1030 (1993). 31. See Costarelli v. Commonwealth, 374 Mass. 677, 683, 373 N.E.2d 1183, 1188

6 CRIMINAL AND CIVIL CONFINEMENT [Vol. 23:239 Costarelli v. Commonwealth, 2 the court found that since the unauthorized use of a motor vehicle is a "lesser included crime of larceny of a motor vehicle," 33 a dismissal of the lesser charge by a previous court barred a subsequent prosecution for larceny. 4 Similarly, double jeopardy principles barred the adjudication of unauthorized use. 35 In Commonwealth v. Woods, 36 however, the court did not consider driving under the influence in the same manner as negligent operation of a motor vehicle. 7 In order to prove DUI, the Commonwealth had to show that the defendant was intoxicated; in order to prove negligent operation, however, the Commonwealth only needed to show that the defendant consumed alcohol prior to operating his car: the level of intoxication was irrelevant for negligent operation. 38 The Commonwealth only needed to show that the defendant failed to exercise reasonable care in order to prove negligent operation. 9 B. Both Prosecutions Occur in Separate Proceedings and Result in Separate Punishments A legislature may authorize multiple punishments so long as it does so by containing the punishments within the same proceeding.' Such punishments, however, violate double jeopardy principles if they are given in separate proceedings. 4 ' Proceedings are deemed separate when both arise from similar or related facts, but are subsequently prosecuted in different courts and under different docket numbers. 42 Furthermore, the legislature may provide criminal and civil punishments within one proceeding without placing a party in double jeopardy. 43 (1978) Mass. 677, 373 N.E.2d 1183 (1978). 33. Id. at 683, 373 N.E.2d at See id. at 682, 373 N.E.2d at See id. at , 373 N.E.2d at Mass. 343, 607 N.E.2d 1024 (1993). 37. See id. at 350, 607 N.E.2d at See id 39. See id 40. See Missouri v. Hunter, 459 U.S. 359, 365 (1983). 41. See McCurdy, supra note 8, at See People v. McLees, 631 N.Y.S.2d 990, 993 (Dist. Ct. Suffolk County 1995). United States v. Halper, 490 U.S. 435 (1989), is an example of two separate proceedings. The State tried the defendant, sentenced him to two years in prison and $5,000 in fines, and then subjected him to a civil suit. See id at See State v. Gustafson, No. 94 C.A. 232, 1995 WL , at *1 (Ohio App. 7d June 7, 1995). People v. McLees, 631 N.Y.S.2d 990 (Dist. Ct. Suffolk County 1995), is an example of a single proceeding. The defendant was tried in one

7 1997] DUI VS. DOUBLE JEOPARDY C. The Penalty Imposed Is a Punishment and Is Not Remedial in Nature No party may be punished twice for the same offense and, if a defendant is sentenced for a new conviction on the same offense, prior punishment for such an offense must be credited.' If a sanction serves a remedial purpose instead of punishment, however, double jeopardy does not bar its application. 4 " Moreover, punishment can be either civil or criminal in form. 6 A sanction, either criminal or civil, constitutes punishment when it serves the goals of punishment. 47 In United States v. Halper," for example, the Court found that a civil sanction of over $130,000 was a punishment since the government incurred actual damages of only $ In United States ex rel. Marcus v. Hess," however, a civil sanction of $315,000 was considered remedial since "proceedings [were] designed to 'protect the government from financial loss'-rather than to 'vindicate public justice."' 51 In Halper, the Supreme Court held that the government may not subject a citizen to a subsequent civil sanction, following punishment in a criminal prosecution, unless the civil sanction is remedial. 52 The Supreme Court based its holding on the idea that a civil sanction is not solely remedial, but is also a form of retribution or deterrence, especially where the sanction is excessive in relation to its nonpunitive purpose 3 court and under one docket number for all events arising from the DUI arrest. See id. at See North Carolina v. Pearce, 395 U.S. 711, 717 (1969). 45. See Halper, 490 U.S. at See id. at See id. at 448. According to the Halper Court, the goals of punishment are retribution and deterrence. See id U.S. 435 (1989). 49. See il at U.S. 537 (1943). The defendants, electrical contractors, were indicted for defrauding the United States through collusive bidding on public works projects. See id. at 539. Subsequently, a group of private plaintiffs brought charges under 31 U.S.C. 3730(b) which provided that "a person guilty of defrauding the Government was subject to a civil penalty of $2,000 for each violation, double the amount of actual damages, and the costs of the suit." Halper, 490 U.S. at (citing Hess, 317 U.S. at 540). 51. Halper, 490 U.S. at 444 (quoting Hess, 317 U.S. at ). 52. See kd at See id at 449. Halper was first sentenced to two years in prison and $5,000 in fines for criminal violation of the False Claims Act. See id. at 437. The government brought a subsequent civil suit against Halper under 31 U.S.C , the

8 246 CRIMINAL AND CIVIL CONFINEMENT [Vol. 23:239 III. CONSTITUIONALITY OF THE MASSACHUSETTS DUI STATUTE Any person who operates a motor vehicle in Massachusetts risks immediate suspension of his or her license for a period of forty-five days if found guilty of driving under the influence or for refusing to submit to a chemical test upon request by a police officer.' A person may also face a fine with a minimum of $500 and maximum of $5000, imprisonment with a maximum of two and one-half years, or both a fine and imprisonment. 55 Before one determines whether this statute violates the principles of double jeopardy, the statute must first be civil False Claims Act, and the district court found Halper civilly liable. See id at 438. The Act called for a $2,000 fine per count and Halper was found guilty of 65 counts. See id. The court found that since the Government's actual loss was $585, a sanction of $130,000 constituted a punishment since it "bore no rational relation" to the Government's actual loss. See id. at 439 (citation omitted). 54. See MAss. GEN. LAWS ch. 90, 24(l)(f)(1) (1994 & Supp. 1996). Whoever operates a motor vehicle upon any way or in any place to which the public has right to access, or upon any way or in any place to which the public has access as invitees or licensees, shall be deemed to have consented to submit to a chemical test or analysis of his breath or blood in the event that he is arrested for operating a motor vehicle while under the influence of intoxicating liquor.... Such test shall be administered at the direction of a police officer, as defined in section one of chapter ninety C, having reasonable grounds to believe that the person arrested has been operating a motor vehicle upon such way or place while under the influence of intoxicating liquor. If the person arrested refuses to submit to such test or analysis, after having been informed that his license or permit to operate motor vehicles or right to operate motor vehicles in the commonwealth shall be suspended for at least a period of one hundred and twenty days, but not more than one year for such refusal, no such test or analysis shall be made and he shall have his license or right to operate suspended in accordance with this paragraph for a period of one hundred and twenty days; provided, however, that any person who is under the age of twenty-one or who has been previously convicted of a violation under this section or a like violation by a court of any other jurisdiction within ten years of the date of the charge in question shall have his license or right to operate suspended forthwith for a period of one hundred and eighty days for such refusal; and provided, further, that any person previously convicted two or more times for a violation under this section or a like violation by a court of any other jurisdiction within ten years of the date of charge in question, shall have his license or right to operate suspended forthwith for a period of one year for such refusal. If a person refuses to take a test under this section, the police officer shall do the following: (i) immediately and on behalf of the registrar take custody of such person's driver license or permit issued by the Commonwealth.... Id. 55. See id. 24(1)(a)(1); see also infra note 57 and accompanying text.

9 1997] DUI VS. DOUBLE JEOPARDY 247 found constitutional. The United States Supreme Court has upheld the constitutionality of the Massachusetts DUI statute. 56 A. Supreme Court Analysis In Mackey v. Montrym 5 the defendant was involved in an automobile collision and was arrested for operating a motor vehicle under the influence of alcohol. 8 The arresting officer claimed that the defendant was "'glassy eyed,' unsteady on his feet, slurring his speech, and emitting a strong alcoholic odor from his person." 9 The defendant refused to take a breathalyzer test when initially asked, and was refused the test twenty minutes later when he decided to comply; willingness to comply occurred after the defendant consulted with his attorney.' The lower court dismissed the initial charge because of the police officer's refusal to give the defendant the test when he decided to take it." After the defendant demanded return of his license pursuant to the above dismissal, and such license was not returned, the defendant filed suit arguing that 24(1)(f) of the Massachusetts General Laws was unconstitutional on its face. 62 Since the statute failed to grant presuspension hearings, the district court found the statute unconstitutional as violative of the Due Process Clause of the Fifth Amendment of the United States Constitution. 63 The district court denied the Registrar of Motor Vehicle's motions for a stay and modification of the 56. See Mackey v. Montrym, 443 U.S. 1 (1979) U.S. 1 (1979). MASS. GEN. LAWS ch. 90, 24 (1994 & Supp. 1996) is relevant to this case because the government charged the defendant in Mackey with driving under the influence. See Mackey, 443 U.S. at 4. MASS. GEN. LAWS ch. 90, 24(1)(a)(1) (1994 & Supp. 1996) reads: Whoever, upon any way or in any place to which the public has a right of access, or upon any way or in any place to which members of the public have access as invitees or licensees, operates a motor vehicle while under the influence of intoxicating liquor, or of marijuana, narcotic drugs, depressants or stimulant substances, all as defined in section one of chapter ninety-four C, or the vapors of glue shall be punished by a fine of not less than five hundred nor more than five thousand dollars or by imprisonment for not more than two and one-half years, or both such fine and imprisonment. Id. 58. See Mackey, 443 U.S. at Id. 60. See id. at See id. at See id at See Motrym v. Panora, 429 F. Supp. 393 (D. Mass. 1977).

10 CRIMINAL AND CIVIL CONFINEMENT [Vol. 23:239 judgment.' The Registrar's motion cited Dixon v. Love, 65 in which the Supreme Court upheld an Illinois statute authorizing suspension of a driver's license prior to a hearing. 66 The district court in Mackey, however, claimed that Dixon was distinguishable.' The Supreme Court reversed the district court's holding and held the statute constitutional. 68 In order to determine whether the Massachusetts statute erroneously deprives an individual of due process, three elements must be considered: the private interest that will be affected by the official action; the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. 9 The private interest involved in Mackey was the license to operate a motor vehicle. 7 " "[T]he driver's interest in [the] continued possession and use of [a] license pending the outcome of [a] hearing... is a substantial one...."' The Court reasoned that "the Commonwealth will not be able to make a driver whole for any personal inconvenience and economic hardship suffered by reason of any delay in redressing an erroneous suspension through postsuspension review procedures." 72 In minimizing the risk of erroneous deprivation, the Court required only that there be "something less than an evidentiary hearing..." [a]nd, when prompt postdeprivation review is available for correction of administrative error, [the Supreme Court has] generally required no more than that the predeprivation procedures used be designed to provide a reasonably reliable basis for concluding that the facts justifying the official action are as a responsible governmental official warrants them to be See Motrym v. Panora, 438 F. Supp (D. Mass. 1977) U.S. 105 (1977). The Supreme Court ruled on this case after the original hearing of Mackey. See Mackey, 443 U.S. at See Love, 431 U.S. at See Motrym, 438 F. Supp. at The Mackey Court, however, did not explain why Dixon was distinguishable. 68. See Mackey, 443 U.S. at Id. at 10 (quoting Mathews v. Eldridge, 424 U.S. 319, 335 (1976)). 70. See id. at Id. (citing Love, 431 U.S. at 112). 72. Id. at 11 (citing Love, 431 U.S. at 113). 73. Id. (quoting Love, 431 U.S. at 113).

11 1997] DUI VS. DOUBLE JEOPARDY 249 Massachusetts law requires that two police officers witness a driver's refusal to submit to a chemical test 74 Since police officers by their training and experience are suited to fulfill this role, "the risk of erroneous observation or deliberate misrepresentation of the facts by the reporting officer in the ordinary case seems insubstantial." 75 Furthermore, the government's interest in the safety of its citizens outweighs an individual's private interest in maintaining a license until he or she is afforded a proper hearing. 76 Such a statute serves as a deterrent, provides incentive to take a chemical test, and removes drunk drivers from the road, thereby making public roads safer. 77 Due to the low risk of erroneous deprivation and the strong weight of the government's interest in protecting its citizens, and even though individuals have a private interest in maintaining their licenses until after a hearing, the United States Supreme Court found the Massachusetts DUI statute constitutional." IV. A. Statutory Comparison STATUTORY ANALYSIS This Section looks at the DUI statutes of Massachusetts, Ohio, and New York. This analysis includes a comparison of the drafting and procedural layouts of each statute. The areas compared include criminal sanctions, consent to chemical tests, failure of a chemical test, refusal to take a chemical test, administrative hearings, and other civil penalties. 1. Criminal Sanctions Both Massachusetts and New York impose a fine, imprisonment, or both on anyone arrested for driving under the influence of alcohol 79 For first time offenders, Massachusetts imposes either a fine between $500 and $5000, imprisonment up to two and one-half years, or both." 0 In New York, first time offenders face either a fine of $300 to $500, 74. See Mackey, 443 U.S. at Id. 76. See id. at See id. 78. See id at See MASS. GEN. LAWS ch. 90, 24(1)(a)(1) (1994 & Supp. 1996); N.Y. VEH. & TRAF. LAW 1193(1) (McKinney 1995); see also supra note See MAss. GEN. LAWS ch. 90, 24(1)(a)(1) (1994 & Supp. 1996); see also supra note 53.

12 250 CRIMINAL AND CIVIL CONFINEMENT [Vol. 23:239 imprisonment for fifteen days, or both. 8 ' Generally, the criminal sanctions increase in direct relationship to the number of prior convictions of an individual. 8 2 Individuals arrested in New York with two or more prior convictions of driving under the influence 'can face a fine of $750 to $1500, imprisonment for 180 days, or both. 3 In Massachusetts, individuals convicted four or more times face a fine of $2000 to $50,000, imprisonment for two and one-half to five years, or both. s ' Massachusetts and New York, above and beyond criminal sanctions of fines and imprisonment, also suspend one's license for DUI In Massachusetts the suspension lasts one year to life, depending on the number of prior convictions, 6 and in New York the suspension lasts ninety days Consent to Chemical Tests Massachusetts, Ohio, and New York all have mandatory consent provisions. The statutes assert that any individual who operates a motor vehicle in the state, or has a license in the state where the arrest occurred implicitly consents to participation in a chemical test if probable cause exists to believe the individual is operating a motor vehicle under the influence of alcohol. 8 The chemical tests utilized to determine the blood alcohol level of an individual are accomplished by analyzing either breath, blood, urine, or saliva. 9 All three statutes also require that the arresting officer inform the arrestee of consequences for both refusal and failure of the test prior to administration.' 81. See N.Y. VEH. & TRAF. LAW 1193(l)(a) (McKinney 1995). 82. See, e.g., id.; MASS GEN. LAws ch. 90, 24(1)(a)(1) (1994 & Supp. 1996). 83. See MASS. GEN. LAWS ch. 90, 24(1)(a)(1) (1994 & Supp. 1996). 84. See id.; see also supra note 57 and accompanying text. 85. See N.Y. VEH. & TRAF. LAW 1193(1)(2) (McKinney 1995); MASS. GEN. LAWS ch. 90, 24(1)(a)(1) (1994 & Supp. 1996). 86. See MASS. GEN. LAWS ch. 90, 24(l)(a)(1) (1994 & Supp. 1996). 87. See N.Y. VEH. & TRAF. LAW 1193(l)(2) (McKinney 1996). Such suspensions are not alternatives for license revocations imposed for failing or refusing a chemical test. The government may impose both types of suspensions at the same time. See id.; MASS. GEN. LAWS ch. 90, 24(1)(a)(1) (1994 & Supp. 1996). 88. See MAsS. GEN. LAWS ch. 90, 24(1)(f)(1) (1994 & Supp. 1996); OHio REv. CODE ANN (A) (Banks-Baldwin Supp. 1995); N.Y. VEH. & TRAF. LAW 1194(2)(a) (McKinney Supp. 1995). 89. Saliva tests only occur in New York and not in Massachusetts or Ohio. See MASS. GEN. LAWS ch. 90, 24(1)(f)(1) (1994 & Supp. 1996); Omo REv. CODE ANN (A) (Banks-Baldwin 1995); N.Y. VEH. & TRAF. LAW 1194(2)(a) (McKinney Supp. 1995). Massachusetts only tests blood and breath. 90. See MASS. GEN. LAWS ch (1)(f)(1) (1994 & Supp. 1996); OHIo REv.

13 1997] DUI VS. DOUBLE JEOPARDY 3. Failure of a Chemical Test A person is deemed legally intoxicated in Massachusetts if his or her blood alcohol level (BAL) registers.08 or greater. 9 ' In Ohio, if a driver's BAL registers.10 or greater, or if a urine test registers.14 or greater, he or she is considered intoxicated. 2 Finally, in New York, a driver is considered intoxicated if his or her BAL registers.10 or greater.9 In Massachusetts, failing a chemical test results in suspension of one's drivers license for no more than ninety days. 94 Such revocation, however, will not occur for fifteen days. 95 The arresting officer will immediately confiscate the individual's driver's license, but will issue a fifteen day temporary permit. 96 Upon failure of a chemical test, Ohio police officers must inform an individual that his or her driver's license will be revoked "independent of any [other] penalties or sanctions [that may be] imposed." ' Unlike Massachusetts and New York, the suspension is immediate. 98 But, simi- CODE ANN (a) (Banks-Baldwin Supp. 1995); N.Y. VEH. & TRAF. LAW 1194(2)(a) (McKinney Supp. 1995). 91. See MASS. GEN. LAWS ch. 90, 24(1)(f)(2) (1994 & Supp. 1996). 92. See OHIo REv. CODE ANN (Banks-Baldwin 1995). 93. See N.Y. VEH. & TRAF. LAW 1192 (McKinney 1995). 94. See MASS. GEN. LAWS ch. 90, 24(1)(f)(2) (1994 & Supp. 1996). 95. See id. this provision states: If a person's blood alcohol percentage is not less than eight one-hundredths [.08]... such police officer shall... immediately... take custody of such person's drivers license.... The license suspension shall become effective fifteen days after the offender has received the notice of intent to suspend from the police officer. The license to operate a motor vehicle shall remain suspended until the disposition of the offense for which the person is being prosecuted, but in no event shall such suspension pursuant to this paragraph exceed ninety days. Id. 96. See id 97. Omo REV. CODE ANN (D)(1)(a) (Banks-Baldwin 1995). 98. See id. this provision states: If a person under arrest... is asked by a police officer to submit to a chemical test... and the test results indicate that his blood contained a concentration of ten hundredths [.10] of one gram or more by weight of alcohol..., the arresting officer shall... serve a notice of suspension upon the person that advises the person that, independent of any penalties or sanctions imposed upon him.... his driver's or commercial driver's license or permit or nonresident operating privilege is suspended, that the suspension takes effect immediately...

14 252 CRIMINAL AND CIVIL CONFINEMENT [Vol. 23:239 lar to Massachusetts, the license is confiscated immediately. 9 Such a' license suspension can last from ninety days to three years, depending on the number of prior convictions." 4. Refusal of a Chemical Test All three states suspend an individual's driver's license if he or she refuses to submit to a chemical test. In Massachusetts, the commonwealth may suspend the license for 120 days to one year.'' Even though confiscation of the license occurs immediately, the actual suspension does not occur for fifteen days. The arresting officer will issue a fifteen day temporary driving permit to the accused." The Ohio statute calls for immediate suspension of one's license for a period of one to three years, depending on the number of prior refusals." 03 There is no issuance of a temporary driving permit." New York, however, is different from Massachusetts and Ohio. Those who refuse a chemical test in New York lose their driver's license, but the authorities do not revoke the license until the accused appears at his or her arraignment. 5 The report of the police officer is presented at the arraignment, and based on such report as the judge may order, a temporary suspension of the accused's license may oc- 99. See id See id See MASS. GEN. LAWS ch. 90, 24(l)()(1) (1994 & Supp. 1996) See id See OHIo REv. CODE ANN (E)(1) (Banks-Baldwin 1995). If a defendant has not refused to consent to a chemical test within the past five years from the date arrested, the statute requires a one year suspension; one prior refusal requires a two year suspension; two prior refusals requires a three year suspension; three or more prior refusals requires a five year suspension. See id See id See N.Y. VEH. & TRAF. LAW 1194(2)(b) (McKinney 1995). The text states: If such person having been placed under arrest or after a breath test indicates the presence of alcohol in the person's system... and having been informed that the person's license or permit to drive... shall be immediately suspended and subsequently revoked for refusal to submit to such chemical test... whether or not the person is found guilty of the charge for which such person is arrested, refuses to submit to such chemical test... a written report of such refusal shall be immediately made by the police officer before whom such refusal was made.... The report shall be presented to the court upon arraignment of the arrested person. The license or permit to drive... shall, upon the basis of such written report, be temporarily suspended by the court without notice pending the determination of a hearing as provided in paragraph (c) of this subdivision....

15 1997] DUI VS. DOUBLE JEOPARDY cur." Similar to Massachusetts and Ohio, a refusal of a test in New York still results in a license suspension, even if the individual is later deemed innocent of driving under the influence." 5. Administrative Hearings Statutes governing DUI usually provide an individual the opportunity to appeal a license suspension for failure or refusal of a chemical test. An individual arrested in Massachusetts or New York must be given a hearing within fifteen days of arrest to appeal the license suspension for refusal of a chemical test.' If the person failed the chemical test in Massachusetts, they have ten days from his or her arrest to request an appeal before the court in which the criminal charges are pending." Ohio allows an appeal at the accused's initial appearance, which occurs within five days-after the arrest." ' In Massachusetts, the issues on appeal are limited, however, to whether there was probable cause for the arrest, whether the police actually arrested the driver, and whether the accused actually refused or failed the chemical test."' In Ohio, the statute limits appeals to determinations of whether there was probable cause, whether the officer asked the party to submit to a chemical test, whether the party was informed of the consequences of a failure or refusal of such test, and whether the party in fact refused or failed such a test."' Finally, in New York, the issues are whether probable cause that the party was driving under the influence existed, whether the police lawfully arrested the party, whether the party was informed of consequences for the failure or refusal of a chemical test "in clear unequivocal language," and whether the party in fact refused to take the required chemical test offered by the police officer.' See id See iu See MAss. GEN. LAWS ch. 90, 24(l)(g) (1994 & Supp. 1996); N.Y. VEH. & TRAF. LAW 1194(2)(c) (McKinney 1995) See MAss. GEN. LAWS ch. 90, 24(l)(g) (1994 & Supp. 1996) See OHIo REv. CODE ANN (E)(1), (G)(2), (H)(1) (Banks-Baldwin 1995) See MAss. GEN. LAWS ch. 90, 24(1)(f)(2) (1994 & Supp. 1996) See Ouo REv. CODE ANN (H)(1) (Banks-Baldwin 1995) See N.Y. VEH. & TRAF. LAW 1194(2)(c) (McKinney 1995).

16 CRIMINAL AND CIVIL CONFINEMENT [Vol. 23: Other Civil Penalties New York also imposes a civil fine of between $200 and $500 upon any individual whose driving privileges are suspended or revoked under this particular statute." 4 V. DOUBLE JEOPARDY ANALYSIS OF THE MASSACHUSETrS DUI STATUTE As mentioned in Part II, the Fifth Amendment to the United States Constitution protects an individual from being tried and punished twice for the same offense." 5 An argument of double jeopardy depends on proving three elements: whether the punishments arose out of the same act or offense; whether both prosecutions occur in separate proceedings and result in separate punishments; and whether the penalty imposed is punishment and not remedial in nature The Massachusetts DUI statute places individuals charged with DUI and with failing a breathalyzer test in jeopardy of being tried and punished twice. A criminal hearing and a civil administrative hearing are two separate proceedings. The charge of operating a motor vehicle while intoxicated is the same act or offense as failing a breathalyzer test and a license revocation is a punishment. A person charged with DUI and refusal of a breathalyzer test, however, is not placed in double jeopardy under the Massachusetts DUI statute. In this instance, the charge of operating a motor vehicle while intoxicated is not the same charge as refusal of a breathalyzer. A. Same Act or Offense The Fifth Amendment of the United States Constitution prohibits the government from prosecuting a citizen twice for the same act or offense. If a person is charged under two different statutes, they are the same act or offense if proof of one requires proof of the same elements as the other," 7 or if one charge is a lesser included crime of the other charge."' The Commonwealth charges individuals arrested in Massachusetts for driving under the influence under a statute which 114. See id. 1194(2)(d)(2) See U.S. CoNsT. amend. V See McCurdy, supra note 8, at See Blockburger v. United States, 284 U.S. 299, 304 (1932) (citing Gavieres v. United States, 220 U.S. 338, 342 (1911)) See Costarelli v. Commonwealth, 374 Mass. 677, 683, 373 N.E.2d 1183, 1188 (1978) (citing Jeffers v. United States, 432 U.S. 137, (1977) (plurality opinion)).

17 1997] DUI VS. DOUBLE JEOPARDY criminalizes driving under the influence and a separate statute that punishes the refusal or failure of a chemical blood test. Refusing to submit to a chemical blood test is a separate act or offense from operating a motor vehicle under the influence of alcohol. The elements required to prove operation of a motor vehicle under the influence of alcohol are: "(1) operation of a vehicle, (2) on a public way, (3) under the influence of alcohol." 119 ' Refusing to submit to a chemical blood test requires proof that: "(1) the police officer [had] reasonable grounds to believe the individual had been operating a motor vehicle while under the influence of intoxicating liquor on a public way; (2) the individual was placed under arrest; and (3) such person refused to submit to a blood or breath test."' ' 0 Both charges require proof of different elements. License revocation for refusing to submit to a chemical blood test and driving under the influence of alcohol, therefore, are two separate offenses and multiple punishments will not result in double jeopardy. At a hearing contesting a license revocation for refusal to submit to a chemical test, the government need not prove that the accused was intoxicated at the time of operating the motor vehicle; it only needs to show actual refusal to submit to the test itself."' In order to show operation under the influence, the prosecution does not have to prove that the accused refused a chemical test.' " The prosecution must show, however, that the accused was intoxicated at the time he or she was operating the motor vehicle." For example, individuals can have a legal amount of alcohol (or none) in their blood at the time they are stopped by an officer. If individuals refuse to submit to a chemical test, they would still have their licenses suspended even though they would not be found guilty of operating a motor vehicle under the influence since they were not intoxicated at the time they operated the car. Because both charges require proof of different elements, and neither is a lesser included crime of the oth Luk v. Commonwealth, 421 Mass. 415, 430, 658 N.E.2d 664, 673 (1995) (citing Commonwealth v. O'Connor, 420 Mass. 630, 631, 650 N.E.2d 800, 800 (1995)) Id. at , 650 N.E.2d at 674 (citing MAss. GEN. LAWS ch. 90, 24(l)(g) (1994 & Supp. 1996)) See MAss. GEN. LAWs ch. 90, 24(1)(f)(1) (1994 & Supp. 1996); OHIo REv. CODE ANN (H)(1) (Banks-Baldwin 1995); N.Y. VEH. & TRAF. LAW 1194(2)(c) (McKinney 1995); see also supra note 54 and accompanying text See Luk, 421 Mass. at 431, 658 N.E.2d at See id. at 430 n.17, 658 N.E.2d at 673 (citing MAss. GEN. LAWS ch. 90, 24(1)(a)(1) (1994)).

18 CRIMINAL AND CIVIL CONFINEMENT [Vol. 23:239 er, they are separate acts and offenses for the purposes of the Fifth Amendment of the United States Constitution." u Because failure of a chemical blood test and operation of a motor vehicle under the influence of alcohol are the same act and offense, conviction for both violates double jeopardy principles. Proof of failure of a chemical blood test requires proof that: "(1) the police officer have reasonable grounds to believe the individual had been operating a motor vehicle under the influence of intoxicating liquor on a public way; (2) the individual was placed under arrest; and (3) such person [failed] a blood or breath test."'" In Massachusetts, a person is considered intoxicated if a chemical test of the person's blood or breath registers.08 or greater.' The elements necessary to prove operation of a motor vehicle under the influence of alcohol are: "(1) operation of a vehicle, 2 7 (2) on a public way, (3) under the influence of alcohol.' Both charges, operating under the influence and failure of a chemical test, require proof that the accused was intoxicated at the time he or she operated the vehicle. Each requires proof that the accused's BAL was.08 or greater while operating a motor vehicle. Failure of a chemical test could be considered a lesser included offense of driving under the influence. In order to prove operation of a motor vehicle while intoxicated, the prosecution must show that the accused failed a chemical test and was, therefore, intoxicated while operating a vehicle on a public way. Operating a motor vehicle under the influence of alcohol and failure of a chemical blood test, therefore, are the same act or offense for purposes of the Fifth Amendment of the United States Constitution. B. Separate Proceedings with Separate Punishments A legislature may authorize multiple punishments as long as they are contained within the same proceeding." 2 If such punishments are contained within separate proceedings, however, they violate double jeopardy principles. 29 Proceedings are deemed separate when both arise from similar or related facts but are subsequently prosecuted in different 124. See id. at 430, 658 N.E.2d at Id. at 431, 658 N.E.2d at 674 (citing MASS. GEN. LAWS. ch. 90, 24(1)(g) (1994)) See MASS. GEN. LAWS ch. 90, 24(l)(f)(2) (1994 & Supp. 1996) Luk, 421 Mass. at 430, 658 N.E.2d at 673 (citing MASS. GEN. LAWS ch. 90, 24(1)(g)(1) (1994)) See Missouri v. Hunter, 459 U.S. 359, 365 (1983) See McCurdy, supra note 8, at 21.

19 1997] DUI VS. DOUBLE JEOPARDY courts and under different docket numbers. 3 ' Furthermore, the legislature may provide criminal and civil punishments within one proceeding without placing a party in double jeopardy.' In Massachusetts, a civil license revocation for failure or refusal of a chemical test is a separate proceeding from a criminal hearing charging the accused with operating a motor vehicle under the influence of alcohol. A defendant charged with the crime of operating under the influence will be brought before a district court judge.' If the same defendant fails or refuses a chemical test, his or her license is immediately confiscated and he or she is given a fifteen day temporary driving permit.' Within that fifteen day period, the accused may appeal to the Registrar of Motor Vehicles to have his or her license reinstated. 34 The actual suspension begins fifteen days after arrest. 13 ' These are obviously two separate proceedings, in separate courts, under separate docket numbers, yet both arise from the same set of facts. If punishment is rendered in both proceedings for each offense, the statutes have violated the accused's right to be free from double jeopardy. The New York DUI statute, however, contains only one proceeding. A defendant who fails or refuses a chemical blood test in New York will have his or her license suspended or revoked at arraignment and not at a separate civil administrative hearing. 36 The State will also address the charges for operating a motor vehicle under the influence of alcohol at arraignment. Based on this statutory construction, some New York courts have found that the New York DUI statute does not place arrested citizens in double jeopardy. 37 In People v. McLees,1 3 ' a New York court held that the State prosecuted the license revocation and the criminal charge for operating a. motor vehicle under the influence of alcohol under one single proceeding, and therefore, did not place the defendant in double jeopardy See United States v. Halper, 490 U.S. 435, 443 (1989) See id. at See Luk, 421 Mass. at 418, 658 N.E.2d at See MASS. GEN. LAWS ch. 90, 24(1)(f) (1994 & Supp. 1996) See il 24(l)(g) See id. 24(1)(t) See N.Y. VEH. & TRAP. LAW 1194(2) (McKinney 1995) See, e.g., People v. McLees, 631 N.Y.S.2d 990 (Dist. Ct. Suffolk -County 1995); People v. Frank, 631 N.Y.S.2d 1014 (N.Y. Crim. Ct. New York County 1995); People v. Condarco, 633 N.Y.S.2d 930 (N.Y. Crim. Ct. Queens County 1995) N.Y.S.2d 990 (Dist. Ct. Suffolk County 1995) See id. at 994.

20 CRIMINAL AND CIVIL CONFINEMENT [Vol. 23:239 Police arrested McLees for driving under the influence." 4 Since his chemical test registered a BAL of.18, McLees was held in police custody until his arraignment"' where the State charged him with operating a motor vehicle under the influence of alcohol and having a BAL level greater than The court then suspended his license at the arraignment, insisting that it would remain suspended until the criminal proceedings were complete.43 The defendant claimed that this provision placed him in double jeopardy. 1 " This case is distinguishable from other state DUI cases. Other state DUI statutes and cases involve a criminal proceeding and a separate civil proceeding. McLees involved only one criminal proceeding. 45 The State addressed all issues in "the same criminal action, conducted in and by the same court under the same caption and docket number." 146 Massachusetts, Ohio, and other states with similarly drafted statutes may want to give serious consideration to redrafting their DUI statute to ensure that the prosecution deals with the license revocation issue during the criminal prosecution for operating a motor vehicle under the influence of alcohol. Since the government may subject a person to multiple punishments encompassed in one proceeding, 47 a statute ensuring unity of proceedings would not infringe upon double jeopardy standards See id See id See id See id. at See McLees, 631 N.Y.S.2d at See id 146. Id. at 993; see also People v. Gerstner, 638 N.Y.S.2d 559 (N.Y. Sup. Ct. Monroe County 1996). Gerstner further supports this position by asserting that: Judicial opinions throughout New York are divided as to whether suspension of a driver's license pending prosecution and the prosecution of a violation of Vehicle and Traffic Law 1192 occur within the same proceeding... It is evident, however, from a fundamental reading of the statutes, that the legislature contemplated and provided for, within the same criminal proceeding, the imposition of criminal sanctions for violating Vehicle and Traffic Law 1192(2) or 1192(3) subsequent to a suspension pending prosecution under Vehicle and Traffic Law 1192(2)(e)(7).... Therefore, it is obvious to this Court that suspension pending prosecution is imposed within the structure of a single criminal prosecution. Gerstner, 638 N.Y.S.2d at See Missouri v. Hunter, 459 U.S. 359, 365 (1983).

21 1997] DUI VS. DOUBLE JEOPARDY 259 C. Multiple Punishment The Fifth Amendment protects against multiple punishments for the same offense."' A criminal prosecution does not bar civil prosecution as long as only one of the proceedings imposes a punishment. 149 A sanction is a form of punishment when it has a goal of retribution or deterrence, regardless of whether the sanction is criminal or civil in nature." If the sanction has a remedial goal, however, it is not punishment and, therefore,, the Fifth Amendment does not impede it.15 A sanction is punishment if it has both a retributive or deterrent purpose and a remedial purpose, but it is not punishment if it has only a remedial purpose."' On November 27, 1995, the Massachusetts Supreme Judicial Court ruled that the Massachusetts DUI statute does not violate the Fifth Amendment of the United States Constitution since a license revocation is not a form of punishment In Luk,'" local police stopped Anne W. Luk when her car swerved off the road and hit a stone wall." Police asked Luk to take a breathalyzer test and, when she refused, her license was taken away and she was issued a fifteen day temporary permit.' 56 Police then informed her that she had a right to appeal the suspension to the Registrar of Motor Vehicles within the next fifteen days.' 57 Five days after Luk's initial suspension, the district court found her guilty of driving under the influence of alcohol, suspended her license for forty-five days, and required her to participate in an alcohol education program.1 5 ' Luk requested a hearing before the Registrar after her criminal appearance in district court.' 59 At the hearing, the Registrar affirmed the suspension of her driver's license for 180 days for refusing the breathalyzer test. 6 " Three months after the hearing, appealing her civil 148. See Commonwealth v. Luk, 421 Mass. 415, 419, 658 N.E.2d 664, 667 (1995) See id. at 420, 658 N.E.2d at See United States v. Halper, 490 U.S. 435, (1989) See id at See i& at 447., 153. See, e.g., Leduc v. Commonwealth, 421 Mass. 433, 435, 657 N.E.2d 755, 756 (1995) See Luk, 421 Mass. at 417, 658 N.E.2d at See i& 156. See id at , 658 N.E.2d at See iu See id See id. at 418, 658 N.E.2d at See Luk, 421 Mass. at 418, 658 N.E.2d. at 667.

22 CRIMINAL AND CIVIL CONFINEMENT [Vol. 23:239 revocation, the Registrar suspended Luk's license for an additional two years due to a prior conviction under the Massachusetts DUI statute. 6 ' Luk appealed the 180 day suspension and additional two year suspension, claiming that since the criminal court had already punished her, the two year suspension subjected her to double jeopardy. 62 Luk claimed that the license suspension for refusing to take the breathalyzer test was a second punishment after the district court took away her license for forty-five days aid required her to complete an alcohol education class. 163 The Supreme Judicial Court, however, disagreed.' The Supreme Judicial Court stated that a license revocation is similar to an injunction or restraining order. 65 The purpose of such a sanction is to keep reckless drivers off the road, thus protecting the public.' 66 Because the primary purpose of the license revocation is public safety and not punishment, the court claimed it was remedial in nature and, therefore, not violative of the Fifth Amendment. 67 The court also justified its ruling by stating that the operation of a motor vehicle is a privilege and not a right,' 68 similar to the revocation of a physician's license. 69 The court appeared to ignore the implications of the ruling in United States v. Halper 70 In Halper, the United States Supreme Court held that "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.'' "[I]n determining whether a particular civil 161. See id See id, 163. See id. at 419, 658 N.E.2d at See id. at , 658 N.E.2d at See id. at 426, 658 N.E.2d at See Luk, 421 Mass. at 426, 658 N.E.2d at See id. at 427, 658 N.E.2d at See id. at 428, 658 N.E.2d at See Kvitka v. Bd. of Registration, 407 Mass. 140, 551 N.E.2d 915 (1990) (holding that the revocation of a physician's license was not a violation of double jeopardy because it was considered remedial and not punishment) U.S. 435 (1989). In Halper, a civil forfeiture was considered punishment. See id. at 452. There is "no reason to believe that 'punishment' is defined differently under the Fifth Amendment's double jeopardy clause than it is under the Eighth Amendment's excessive fines clause." State v. Hickam, 668 A.2d 1321, 1329 (Conn. 1995) (Berdon, J., dissenting). Historically, courts have not construed forfeiture as serving a remedial purpose. See United States v. $405, United States Currency, 33 F.3d 1210, 1221 (9th Cir. 1994) Halper, 490 U.S. at 448 (emphasis added). The Tenth Circuit Court of Ap-

23 19971 DUI VS. DOUBLE JEOPARDY sanction constitutes criminal punishment, it is the purpose actually served by the sanction in question, not the underlying nature of the proceeding giving rise to the sanction, that must be evaluated."' 72 In Austin v. United States," 3 the nation's highest Court affred that a sanction designed to deter or punish, even in part, constitutes punishment regardless of whether or not it also has a remedial purpose. Basically, in order for a sanction to be remedial, it cannot be explained as retributive or deterrent. Since a license revocation, as recognized by the Supreme Judicial Court, does have an underlying goal of deterrence as well as a remedial public safety goal, 74 the revocation should be considered a sanction. One cannot discuss the purpose of a license suspension without looking at its deterrent effects. A suspension is not a sanction if it is wholly remedial. License revocation does not protect the public until after an individual has already driven under the influence and possibly injured herself or an innocent party.' This does not propeals has interpreted Halper as meaning that: [I]f a particular remedial sanction can only be understood as also serving punitive goals, then the person subjected to the sanction has been punished despite the fact that the sanction is also remedial....to conclude otherwise effectively invalidates the Double Jeopardy Clause by allowing multiple punishments for the same conduct merely because the punishments also serve remedial purposes. We therefore must conclude that if a sanction is not exclusively remedial, but can only be explained as also affecting deterrence or retribution, it is punishment for double jeopardy analysis. United States v. Hudson, 14 F.3d 536, 540 (10th Cir. 1994). The Supreme Court recently affirmed a similar interpretation of Halper. See United States v. Usery, 116 S. Ct. 2135, (1996) (Stevens, J., dissenting). It is the majority that has misread Halper, Austin, and Kurth Ranch by artificially cabining each to a separate sphere... and treating the three as if they concerned unrelated subjects. In fact, all three were devoted to the common enterprise of giving meaning to the idea of "punishment," a concept that plays a central role in the jurisprudence of both the Excessive Fines Clause and the Double Jeopardy Clause. Id. at (Stevens, J., dissenting) Halper, 490 U.S. at 447 n U.S. 602, 610, 622 (1993) See Commonwealth v. Luk, 421 Mass. 415, 427, 658 N.E.2d 664, 672 (1995) The dissenting opinion in Tench v. Commonwealth, 462 S.E.2d 922, 928 (Va. 1995) (Benton, J., dissenting), argued that while the Virginia legislature intended that the Virginia DUI statute have a remedial purpose, such purpose had not been achieved: Citing the legislative intent to reduce "alcohol-related crashes, fatalities, and injuries," the majority finds that the license suspension is a remedial sanction "because its purpose is to protect the public from intoxicated drivers and to

24 CRIMINAL AND CIVIL CONFINEMENT [Vol. 23:239 mote public safety. DUI statutes can be explained as a deterrent. All one really needs to do is look at the increase in sanctions for repeat offenders. In Massachusetts, citizens who repeatedly violate the Massachusetts DUI statute are subject to the following: one prior conviction invokes a criminal suspension of two years; two prior convictions invokes a criminal suspension of eight years; three prior convictions invokes a criminal suspension of ten years; and four or more prior convictions invokes a criminal suspension for life. This evidences the legislature's deterrent intent. If the Massachusetts legislature was not interested in deterring repeat offenses under this statute, sanctions for repeat offenders would not be so severe. If the legislature sought to promote public safety and protect the public from reckless drivers, it should have taken measures to ensure that such individuals arrested for DUI do not commit the offense again. This could be achieved by tying the license revocation to an educational or treatment program. The Massachusetts DUI statute does authorize the courts to require an offender to complete an alcohol educational program, 17 but it is not tied to the license revocation and is typically only invoked for repeat offenders. Refusal to submit to a chemical test results in suspension of a license for between 120 days and one year, 77 and failure of a chemical test results in suspension of a license for ninety days." 7 These dates are not tied to any particular legislative purpose. If the Massachusetts legislature sought a truly remedial effect, then it should require violators of the Massachusetts DUI statute reduce alcohol related accidents." Even though the legislature may have intended a remedial purpose, the license suspension statute contains significant punitive aspects that do not support a remedial purpose. The summary suspension scheme of the [statute] automatically returns the license to the arrested driver after seven days without requiring any further proceeding or findings. Such a suspension proceeding serves to punish for the charged criminal act..... mhe very existence of the summary sanction of the statute serves as a deterrent.... [T]he legislature [clearly] intended to deter drunk driving by imposing a swift punishment. The Supreme Court of Virginia has stated that '[ilt is not necessary to do violence to logic or reasoning in arriving at the conclusion that the purpose of the statute is not only to punish drunken drivers but to prevent such drivers from using the highways to the hazard of other citizens." Id. (citing Mackey v. Montrym, 443 U.S. 1, 18 (1979); Commonwealth v. Ellett, 4 S.E.2d 762, 767 (Va. 1939)) See MASS. GEN. LAWS ch. 90, 24(l)(a), (1)(b) (1994 & Supp. 1996) See idl 24(l)(f)(1) See id 24(l)(f)(2).

25 1997] DUI VS. DOUBLE JEOPARDY to attend alcohol education and treatment classes for the duration of the suspension. This would strengthen the argument that this is a remedial measure which promotes public safety.' 79 The Court of Appeals of Ohio found that state's DUI statute violative of the Fifth Amendment of the U.S. Constitution because a license revocation is punishment. 8 The state suspended Gustafson's driver's license for operating a motor vehicle under the influence of alcohol' and for refusing to take a breathalyzer."' Unlike Luk, however, the Ohio court found that the state's DUI statute violated principles of double jeopardy.' The Ohio court agreed that a DUI statute, by its nature, serves as a deterrent to drinking and driving." 4 In [a] society where public transportation is either non-existent or is, at best, inadequate and entire commercial shopping areas are located in suburbs surrounding our cities, we can no longer view a driver's license as merely a privilege which is given by the State and which is subject to revocation at any time. Having a driver's license has now taken on greater meaning." A driver's license may not have been considered a right in the past 179. Judge Berdon's dissenting opinion in State v. Hickam, 668 A.2d 1321, 1331 (Conn. 1995) (Berdon, J., dissenting), which analyzes Connecticut's DUI law, supports this assertion: The twenty-four hour suspension imposed under b is purely remedial because it is "clearly focused on public safety... The manifest purpose is to protect others by prohibiting a person who has just been arrested for driving under the influence from operating a vehicle while he or she may still be intoxicated. The second sanction,... the ninety-day suspension, however, lacks such a remedial purpose. Upon arrest, an individual's operator's license is seized and a temporary license is issued. The temporary license is effective twenty-four hours after the arrest and remains valid for up to thirty days, thereby restoring the individual's right to operate a vehicle. The ninety-day suspension does not commence until the person has a hearing to determine whether the police officer had probable cause to arrest and other related matters that would justify depriving him of the license.... If the ninety-day suspension... was truly remedial, the arrestee's right to operate a vehicle would not be restored for the thirty-day period. Id. at 1331 (Berdon, J., dissenting). This statute is similar to the Massachusetts DUI statute. Both statutes grant a temporary license upon arrest, pending a hearing See State v. Gustafson, No. 94 C.A. 232, 1995 WL at *1 (Ohio App. 7d June 7, 1995) See id 182. See id 183. See id at * See id at * Id. at *1, *4.

26 264 CRIMINAL AND CIVIL CONFINEMENT [Vol. 23:239 because a person had to apply to the state for a license, but the need now supports one's livelihood. If an individual cannot work, she cannot support her life. The curtailment of a citizen's ability to provide for her basic needs clearly acts as punishment. The Ohio DUI statute is very similar to the Massachusetts statute, as previously discussed.' 86 Both statutes criminalize the operation of a motor vehicle while under the influence of alcohol," s and both suspend a driver's license for failing or refusing a chemical test as a separate offense from operating under the influence."' The main difference is that Ohio suspends and confiscates the license immediately upon arrest. ' 9 Massachusetts, however, confiscates the license immediately, but grants a fifteen day temporary operating license to the accused." 9 A distinguishing statutory argument, however, can be made between Luk and Gustafson. In Luk, the police arrested the defendant for refusing to submit to a chemical test and operating a motor vehicle under the influence of alcohol. 9 ' Based on the double jeopardy analysis in the earlier part of this section, 92 Luk was not placed in double jeopardy. As stated above, refusal to submit to a chemical blood test and operation of a motor vehicle while intoxicated are two separate offenses.' A court, therefore, can issue a separate punishment under each offense.' 94 Hence, the overall outcome of Luk is correct but the court's reasoning regarding the issue of punishment is not. Based on a detailed evaluation of the Massachusetts DUI statute, Gustafson, and Halper, one must conclude that a license revocation is a form of punishment See supra notes and accompanying text See MASS. GEN. LAWS oh. 90, 24(1)(f)(1), (f)(2) (1994); OHiO REv. CODE ANN (D)(1) (Banks-Baldwin 1995); see also supra note 50 and accompanying text See MASS. GEN. LAWS ch. 90, 24(1)(a)(1) (1994); OHIO REv. CODE ANN (Banks-Baldwin 1995); see also supra note 53 and accompanying text See OHIO REV. CODE ANN (D)(1) (Banks-Baldwin 1995) See MASS. GEN. LAWS ch. 90, 24(1)(f)(1), (f)(2) (1994); see also supra notes 50, 86 and accompanying text See Commonwealth v. Luk, 421 Mass. 415, 417, 658 N.E.2d 664, 667 (1995) See supra notes and accompanying text See supra notes and accompanying text See supra notes and accompanying text.

27 1997] DUI VS. DOUBLE JEOPARDY VI. CONCLUSION AND RECOMMENDATION A license revocation under the Massachusetts statute for failure to submit to a chemical test constitutes a violation of double jeopardy principles, whereas a license revocation for refusal of a chemical test does not. A charge for driving under the influence and for failure of a chemical test arise out of the same act or offense since, to prove both, the State must show that the driver's BAL exceeded the legal limit. Refusal of a chemical test, however, does not require proof that the defendant was intoxicated or that the arrestee's BAL level was over the legal limit. Proof of refusal of submission to the chemical test is all that is necessary. Therefore, a charge for DUI and for refusal of a chemical test do not arise out of the same act or offense. The criminal prosecution for driving under the influence is a separate proceeding from the civil license revocation. Both proceedings occur within different time periods, in different courts, and under different docket numbers. Police confiscate a driver's license immediately upon arrest, and issue a fifteen day temporary license. Within that fifteen day period, a defendant may appeal the license suspension at a hearing before the Registrar of Motor Vehicles, and not to the court which heard the criminal proceeding. License revocation is punishment, and not a remedial sanction. Courts which find otherwise do so due to the legislative history designating such sanctions as serving the public good by keeping drunk drivers off the road. Such a sanction, however, does not protect the public from drunk drivers. The statute takes away an individual's license after they have committed a crime. A police officer may only obtain probable cause that an individual is driving under the influence from erratic driving, reckless driving, or a car accident resulting in injury to either the drunk driver, an innocent party, or both. If the probable cause resulted from a car accident, the drunk driver most likely damaged city or private property in the accident, injured, or killed someone. This is not public protection. To protect the public, legislatures must aim to inform citizens of the consequences of the crime before it occurs. This can be accomplished by tying license revocation to an alcohol education and treatment program that lasts the length of the suspension time period. Furthermore, since driving has become such an important and necessary mode of transportation for individuals to travel to and from work and home, courts can no longer regard a driver's license as a trivial privilege. Depriving a citizen of his or her driver's license will cause immeasurable inconvenience and damage. The party may have to find another mode of transportation to and from work, or to the grocery

28 CRIMINAL AND CIVIL CONFINEMENT [Vol. 23:239 store, or to pick up his or her children from school. The alternative means may become expensive or unduly burdensome on all parties involved, or there may not be an alternative means of transportation at all. License suspension or revocation serves the purpose of punishing drunken driving by causing severe inconvenience, thus showing violators that their offense is not worth the consequences. Massachusetts, and other states with similarly drafted statues, can redraft their statutes to avoid violating double jeopardy principles.' 95 Driving under the influence is an act of careless disregard for the life and safety of one's self and others, and should not be taken lightly. Due to loopholes in statutes, however, creative attorneys are finding ways to keep drunk drivers on the streets. The New York statute does not violate double jeopardy standards because it suspends an individual's driver's license at arraignment. The license suspension and the criminal charges are heard before one court under one docket number. By redrafting the Massachusetts statute' 96 so that the license suspension for failure or refusal of a chemical test is contained within the same proceeding as the criminal prosecution for driving under the influence, the statute will not violate double jeopardy principles. Courts finding permissible the double punishment of criminal DUI culpability and civil license revocation for failure to take a chemical test are engaging in judicial activism. While the intention of these judges may be honorable, choosing an outcome based on emotion and practicality, and interpreting the law incorrectly to fit a prechosen outcome is judicial activism at its utmost. Courts must base decisions upon precedent. If current statutes fail to address the problem of drunk-driving adequately, the legislature, and not the courts, should be the vehicle through which to accomplish this goal. Melissa M. Tartaro 195. Judge Berdon of the Connecticut Supreme Court stated: Although deterring persons from operating motor vehicles while under the influence of alcoholic beverages is a laudable objective, it cannot be done through multiple punishments that transgress the double jeopardy clause of the United States Constitution. In order to accomplish the underlying commendable purpose of decreasing the incidence of driving while under the influence, the legislature surely can fashion a statutory scheme that does not offend the Constitution. State v. Hickam, 668 A.2d 1321, 1329 (Conn. 1995) (Berdon, J., dissenting) These recommendations also apply to any similarly drafted DII statute.