State v. Hickam , 235 Conn. 614 ( 1995 )

CALLAHAN, J.

The sole issue in this appeal taken by the state¹ is whether the double jeopardy clause of the fifth amendment to the United States constitution prohibited the criminal prosecution of the defendant, Wendy R. Hickam, for operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes § 14-227a (a),² after her motor vehicle operator’s license had been suspended pursuant to General Statutes § 14-227b³ for the same conduct. The state appealed from the judgment of the trial court dismissing the criminal charges against the defendant on double jeopardy grounds. The trial court concluded that the administrative suspension of the defendant’s license pursuant to § 14-227b embodied an element of punishment that barred a subsequent criminal prosecution pursuant to § 14-227a as violative of the double jeopardy clause of the fifth amendment to the United States constitution.⁴ We reverse the judgment of the trial court.

The relevant facts are undisputed. On December 16, 1994, the defendant was arrested for operating a motor vehicle while under the influence of intoxicating liquor in violation of § 14-227a (a).⁵ Following the defendant’s arrest, the commissioner of motor vehicles suspended her motor vehicle operator’s license for a period of ninety days pursuant to § 14-227b (h) (1) (A).⁶ Prior to the defendant’s trial for allegedly operating a motor vehicle while under the influence in violation of § 14-227a (a), she moved to dismiss that charge, claiming that the ninety day suspension of her license was punishment and that any further prosecution or punishment was precluded by the double jeopardy clause of the fifth amendment. The trial court granted the defendant’s motion, concluding that the government imposed suspension had a deterrent purpose or effect and constituted punishment that barred any criminal prosecution for the same offense as violative of the double jeopardy clause. This appeal followed.

The double jeopardy clause of the fifth amendment to the United States constitution provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb . . . .” The double jeopardy clause protects against a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969). The third of these protections is at issue in the present case. We must determine, therefore, whether the administrative suspension of the defendant’s operator’s license constitutes punishment that presents an impediment to her prosecution pursuant to § 14-227a (a).

The defendant relies principally on United States v. Halper, 490 U.S. 435, 109 S. Ct. 1892, 104 L. Ed. 2d 487 (1989), to support her claim that the trial court correctly concluded that the suspension of her motor vehicle operator’s license barred further prosecution or punishment for her alleged violation of § 14-227a (a). In Halper, the defendant was convicted of sixty-five separate violations of the federal criminal false claims statute, 18 U.S.C. § 287. Each violation involved a billing to medicare for $12 for reimbursement for medical services worth only $3. The actual damage to the government as a result of the defendant’s scheme was $585. Upon his conviction of the criminal violations, the defendant was sentenced to two years imprisonment and fined $5000. Subsequently, the government filed a separate civil action against the defendant in an attempt to recover a $2000 penalty for each violation as authorized by the applicable statute. Thus, the government sought to collect $130,000 from the defendant. The United States District Court refused to impose most of the additional penalties against the defendant, concluding that the requested amounts bore no rational relationship to the government’s losses or costs, and that the assessment of the full amount would be an additional punishment that would violate the double jeopardy clause by punishing Halper a second time for the same offense. United States v.Halper, supra, 439. The government appealed directly to the United States Supreme Court pursuant to 28 U.S.C. § 1252. The narrow issue presented to the court was whether the attempted imposition of the civil fines against Halper by the government, following his criminal prosecution and punishment for the same underlying misconduct, violated the double jeopardy clause. Id., 447-50.

The court determined that the imposition of the full amount of the sought after monetary penalties would constitute punishment. It explicitly held that “under the Double Jeopardy Clause a defendant who already has been punished in a criminal prosecution may not be subjected to an additional civil sanction to the extent that the second sanction may not fairly be characterized as remedial, but only as a deterrent or retribution.” (Emphasis added.) Id., 448-49. The court recognized the difficulty in conducting this inquiry and indicated that a violation of the double jeopardy clause “can be identified only by assessing the character of the actual sanction imposed on the individual by the machinery of the state.” Id., 447.

In holding that the civil penalty authorized by the statute was so disproportionate to the offense as to have violated the constitutional prohibition against multiple punishments, the court announced that this is “a rule for the rare case . . . where a fixed-penalty provision subjects a prolific but small-gauge offender to a sanction overwhelmingly disproportionate to the damages he has caused.” Id., 449. The court then remanded the case to the trial court in order to allow the government an opportunity to demonstrate its losses and costs because it had not previously challenged the assessment of damages. The government rather had chosen to litigate only the comprehensive double jeopardy issue that the Supreme Court decided. Id.

The defendant claims that Halper states and stands for the proposition that a civil sanction is punishment unless it can “fairly be said solely to serve a remedial purpose . . . .”⁷ (Emphasis added.) Id., 448. This language, however, is mere dicta and is inconsistent with Halper’s explicit holding. It was, nevertheless, the language upon which the trial court focused in concluding that the suspension of the defendant’s operator’s license was punishment that raised a double jeopardy bar. If the above quoted dicta from Halper were adhered to literally and in isolation as the proper standard by which to evaluate an administrative sanction, any such sanction that exhibited even a minuscule deterrent or retributive purpose would have to be denominated punishment for double jeopardy purposes.

As quoted earlier, the explicit holding of United States v. Halper, supra, 448-49, is: “We therefore hold that under the Double Jeopardy Clause a defendant who already has been punished in a criminal prosecution may not be subjected to an additional civil sanction to the extent that the second sanction may not fairly be characterized as remedial, but only as a deterrent or retribution.” (Emphasis added.) We cannot reconcile Halper’s explicit holding with the language relied upon by the trial court and the defendant in this case. The majority of courts that have addressed the issue of whether the imposition of a civil sanction constitutes punishment for puiposes of the double jeopardy clause, however, have applied Halper’s explicit holding, and have rejected the notion that Halper intended to characterize as punishment all civil or administrative sanctions that have any deterrent effect. See, e.g., Dept. of Revenue of Montana v. Kurth Ranch, 511 U.S. 767, 778-79, 114 S. Ct. 1937, 128 L. Ed. 2d 767 (1994); Garrity v. Fiedler, 850 F. Sup. 777, 778-79 (E.D. Wis. 1994); State v. Funke, 531 N.W.2d 124, 126-27 (Iowa 1995); State v. Savard, 659 A.2d 1265, 1268 (Me. 1995); State v. Strong, 158 Vt. 56, 61-62, 605 A.2d 510 (1992). The majority of courts have also concluded that administrative sanctions that have the remedial purpose of advancing public safety interests do not constitute punishment for purposes of double jeopardy analysis. See, e.g., United States v. Hudson, 14 F.3d 536, 542 (10th Cir. 1994) (administrative order barring defendants from future banking activities not bar to subsequent prosecution for related criminal offense); United States v. Furlett, 974 F.2d 839, 844-45 (7th Cir. 1992) (administrative ban on commodities trading not bar to subsequent criminal prosecution for same underlying misconduct); Schillerstrom v. State, 180 Ariz. 468, 470-71, 885 P.2d 156 (1994) (criminal prosecution not bar to subsequent administrative revocation of chiropractic license even though based on same behavior giving rise to prosecution); Loui v. Board of Medical Examiners, 78 Haw. 21, 25-29, 889 P.2d 705 (1995) (one year suspension from practice of medicine by board of medical examiners following criminal prosecution based on same conduct not barred by double jeopardy prohibition against multiple punishments).

Finally, most courts that have spoken directly to the issue of whether an administrative license suspension following an arrest for driving while intoxicated raises a double jeopardy bar to prosecution have consistently relied upon Halper’s explicit holding and have determined that if a license suspension furthers the legitimate remedial goal of public safety, it is not punishment in the double jeopardy context even if it has an incidental deterrent or retributive effect. See Baldwin v. Dept. of Motor Vehicles, 35 Cal. App. 4th 1630, 42 Cal. Rptr. 2d 422, 427-30 (1995) (administrative license suspension based on drunk driving arrest may not be fairly characterized as deterrent or punitive measure and does not bar further prosecution or punishment); State v. Murray, 644 So. 2d 533, 535 (Fla. App. 1994) (administrative license suspension does not prohibit subsequent criminal prosecution because primary purpose of suspension is public safety as opposed to punishing offender); State v. Higa, 79 Haw. 1, 897 P.2d 928, 932-34 (1995) (license suspension is remedial in that it protects public by removing potentially dangerous drivers from state roadways and does not bar subsequent criminal prosecution); State v. Funke, supra, 531 N.W.2d 126-27 (license suspension that principally serves remedial purpose does not implicate double jeopardy protection against multiple punishments and therefore does not bar subsequent criminal prosecution); Butler v. Dept. of Public Safety & Corrections, 609 So. 2d 790, 797 (La. 1992) (license suspension bears rational relationship to legitimate governmental purpose of promoting public safety and does not serve as bar to subsequent criminal prosecution); State v. Savard, supra, 659 A.2d 1268 (license suspension serves as means to ensure public safety and subsequent criminal prosecution based on same conduct is not prohibited by double jeopardy clause); State v. Jones, 340 Md. 235, 666 A.2d 128 (1995) (administrative license suspension following drunk driving arrest serves remedial purpose and therefore not bar to criminal prosecution); State v. Hanson, 532 N.W.2d 598, 601-602 (Minn. App. 1995) (ninety day revocation of driver’s license fairly characterized as remedial and therefore does not prohibit criminal prosecution); State v. Cassady, 140 N.H. 46, 662 A.2d 955, 959 (1995) (administrative license suspension following drunk driving arrest does not bar subsequent prosecution because it is not so punitive as to constitute punishment in violation of double jeopardy clause); Tench v. Commonwealth, 21 Va. App. 200, 462 S.E.2d 922 (1995) (license suspension following drunk driving arrest serves remedial purpose and therefore double jeopardy not bar to subsequent criminal prosecution).

Accordingly, after a review of Halper and its interpretation by other jurisdictions, we conclude that Halper stands for the proposition that a civil or administrative sanction that serves a legitimate remedial purpose and is related rationally to that purpose does not give rise to a double jeopardy violation even if the sanction has some deterrent effect. Conversely, no matter what its label, a sanction or portion thereof that seeks only to punish triggers the protection of the double jeopardy clause.

Having determined that the explicit holding of Halper, rather than the test utilized by the trial court, enunciates the proper standard by which to measure a civil or administrative sanction for purposes of the double jeopardy clause, we must determine whether Connecticut’s statute mandating an administrative license suspension under defined circumstances, following an arrest for driving while under the influence, is fairly characterized as remedial. We conclude that the statute is sufficiently remedial so that the administrative suspension does not bar a future prosecution for the same conduct that gave rise to the suspension.

In determining whether a suspension pursuant to § 14-227b is punishment or is remedial for double jeopardy purposes, we need to assess the nature of the administrative sanction imposed upon the individual and the purposes that it serves. United States v. Halper, supra, 490 U.S. 448. We note at the outset that the question of whether a sanction constitutes punishment is not to be answered from the perspective of the person affected because not infrequently “remedial sanctions carry the sting of punishment.” Id., 447 n.7. Consequently, one against whom any administrative action has been taken might well be of the opinion that he or she was indeed being “punished.” Additionally, the label that the legislature attaches to the sanction does not control our double jeopardy inquiry because “[i]t is commonly understood that civil proceedings may advance punitive as well as remedial goals, and, conversely, that both punitive and remedial goals may be served by criminal penalties.” Id., 447.

An examination of the legislative history of § 14-227b reveals that a principal purpose for the enactment of the statute was to protect the public by removing potentially dangerous drivers from the state’s roadways with all dispatch compatible with due process. Legislators expressed the hope that “this bill [would] save lives . . . [because] anywhere from 20-30 people, Connecticut residents [would] be spared . . . .” 32 H.R. Proc., Pt. 30, 1989 Sess., p. 10,562, remarks of Representative Christopher Burnham. Legislators also hoped that the bill would send a “message that we will not tolerate drunken drivers on our roads . . . [and] the loss of life and property on our roads as a result of drunken drivers.” 32 S. Proc., Pt. 12, 1989 Sess., p. 3979, remarks of Senator Anthony V. Avallone. Other legislators noted that there was a “need to do . . . something stronger than we have done by strictly our criminal laws, something that will use the administrative process in a prompt and sure fashion to make sure that those who drive and drink, don’t do so for very long.” Id., p. 3985, remarks of Senator Richard Blumenthal. “This bill goes a long way toward restoring . . . the safety that we all expect and deserve in traveling on our roads.” Id., p. 3986, remarks of Senator James H. Maloney.

We acknowledge that the legislative history of § 14-227b contains evidence that the ninety day suspension of an operator’s license was intended to some extent to furnish a deterrent to driving while under the influence of intoxicating liquor. We note, however, that a deterrent purpose does not automatically mark an administrative action as punitive for double jeopardy purposes. Dept. of Revenue of Montana v. Kurth Ranch, supra, 511 U.S. 780. Indeed, it is difficult to envision any administrative sanction that does not have some incidental deterrent effect. Accordingly, although various legislators, to some degree, envisioned that the ninety day suspension would deter individuals from driving while intoxicated, a determination that the suspension period primarily serves a remedial purpose is not foreclosed. The legislation’s deterrent effect must be considered in conjunction with the equally important public safety purpose that § 14-227b was obviously enacted to serve. On balance, we conclude that any deterrent purpose manifested by the legislative history of § 14-227b is incidental to its overall remedial purpose of removing from the highways those who have exhibited a propensity to drive while under the influence of alcohol.

We conclude that the principal thrust of § 14-227b is to protect the public by temporarily revoking, prior to conviction, the operating privileges of those who have demonstrated a reckless disregard for the safety of others, while at the same time providing procedures to afford due process to those that come within its ambit. While any remedial statute or regulation likely embodies a certain element of deterrence, the remedial purpose of § 14-227b outweighs its incidental deterrent effect. We conclude further that the ninety day suspension period mandated by § 14-227b is not disproportionate to the public safety interest that is served by the expeditious suspension of the operating privileges of an individual who has been administratively found to have operated a motor vehicle with a blood alcohol content of 0.10 of 1 percent or more. An administrative suspension of operating privileges pursuant to § 14-227b is rationally related to the legislature’s assessment that public safety on our highways is furthered by the prompt removal from behind the wheel, even if only temporarily, of those individuals who have been arrested for operating under the influence. Succinctly put, the ninety day suspension period is not “so divorced from any remedial goal that it constitutes ‘punishment’ for the purpose of double jeopardy analysis.” United States v. Halper, supra, 490 U.S. 443.

The fact that the operating privileges of a driver arrested for operating a motor vehicle while under the influence are allowed to be retained temporarily for a thirty day period does not affect our determination that § 14-227b is remedial. An operator’s license is a privilege that the state may not revoke without furnishing the holder of the license due process as required by the fourteenth amendment. Bell v. Burson, 402 U.S. 535, 539, 91 S. Ct. 1586, 29 L. Ed. 2d 90 (1971).⁸ Consequently, the legislature has simply provided to a driver who has been arrested the opportunity to contest the loss of his or her license, while retaining operating privileges until a final determination on an extended suspension can be made after a hearing. The short period of retention of driving privileges pending a hearing was obviously intended to eliminate any possible due process concerns and does not defeat the statute’s remedial purpose of expeditiously removing potentially dangerous drivers from the road for a period of time. State v. Hanson, supra, 532 N.W.2d 602; see also State v. Stevens, 224 Conn. 730, 739, 620 A.2d 789 (1993) (Connecticut’s statutory scheme reflects “an unambiguous policy aimed at ensuring that our highways are safe from the carnage associated with drunken drivers”).

Moreover, the legislature’s decision to limit to only ninety days the suspension of a driver whose blood alcohol content tested to be 0.10 of 1 percent or more does not vitiate the statute’s remedial purpose. While the legislature might have opted for a substantially longer suspension period, we cannot say that its decision not to do so is unreasonable or not rationally related to concerns of public safety, a remedial purpose. “[W]e must defer to the Legislature in determining the remedial action necessary to achieve its goals. See [United States v. Ward, 448 U.S. 242, 249, 100 S. Ct. 2636, 65 L. Ed. 2d 742 (1980)].” State v. Strong, supra, 158 Vt. 61; see Quinnett v. Newman, 213 Conn. 343, 347, 568 A.2d 786 (1990).⁹

In sum, we conclude that the administrative suspension of the defendant’s operator’s license had a legitimate remedial purpose and does not bar her criminal prosecution for allegedly violating § 14-227a (a).

The judgment is reversed and the case is remanded to the trial court for further proceedings consistent with this opinion.

In this opinion PETERS, C. J., and BORDEN, NORCOTT, KATZ and PALMER, Js., concurred.

1 The plaintiff appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

2 General Statutes § 14-227a provides in relevant part: “Operation while under the influence of liquor or drug or while impaired by liquor, (a) Operation while under the influence. No person shall operate a motor vehicle while under the influence of intoxicating liquor or any drug or both. A person commits the offense of operating a motor vehicle while under the influence of intoxicating liquor or any drug or both if he operates a motor vehicle on a public highway of this state or on any road of a district organized under the provisions of chapter 105, a purpose of which is the construction and maintenance of roads and sidewalks, or on any private road on which a speed limit has been established in accordance with the provisions of section 14-218a, or in any parking area for ten or more cars or on any school property (1) while under the influence of intoxicating liquor or any drag or both or (2) while the ratio of alcohol in the blood of such person is ten-hundredths of one per cent or more of alcohol, by weight.”

3 General Statutes § 14-227b provides in relevant part: “Implied consent to test. Suspension of license for refusing to submit to test or having elevated blood alcohol content. Hearing, (a) Any person who operates a motor vehicle in this state shall be deemed to have given his consent to a chemical analysis of his blood, breath or urine ....

“(c) If the person arrested refuses to submit to such test or analysis or submits to such test or analysis, commenced within two hours of the time of operation, and the results of such test or analysis indicate that the ratio of alcohol in the blood of such person is ten-hundredths of one per cent or more of alcohol, by weight, the police officer, acting on behalf of the commissioner of motor vehicles, shall immediately revoke and take possession of the motor vehicle operator’s license or, if such person is a nonresident, suspend the nonresident operating privilege of such person, for a twenty-four-hour period and shall issue a temporary operator’s license or nonresident operatingprivilege to suchperson valid fortheperiod commencing twenty-four hours after issuance and ending thirty days after the date such person received notice of his arrest by the police officer. The police officer shall prepare a written report of the incident and shall mail the report together with a copy of the completed temporary license form, any operator’s license taken into possession and a copy of the results of any chemical test or analysis to the department of motor vehicles within three business days. The report shall be made on a form approved by the commissioner of motor vehicles and shall be subscribed and sworn to under penalty of false statement as provided in section 53a-157b by the arresting officer. If the person arrested refused to submit to such test or analysis, the report shall be endorsed by a third person who witnessed such refusal. The report shall set forth the grounds for the officer’s belief that there was probable cause to arrest such person for manslaughter in the second degree with a motor vehicle or assault in the second degree with a motor vehicle or for operating a motor vehicle while under the influence of intoxicating liquor or any drug or both or while his ability to operate such motor vehicle is impaired by the consumption of intoxicating liquor, and shall state that such person had refused to submit to such test or analysis when requested by such police officer to do so or that such person submitted to such test or analysis, commenced within two hours of the time of operation, and the results of such test or analysis indicated that the ratio of alcohol in the blood of such person was ten-hundredths of one per cent or more of alcohol, by weight.

“(d) Upon receipt of such report, the commissioner of motor vehicles shall suspend any license or nonresident operating privilege of such person effective as of a date certain, which date shall be not later than thirty days after the date such person received notice of his arrest by the police officer. Any person whose license or operating privilege has been suspended in accordance with this subsection shall automatically be entitled to a hearing before the commissioner to be held prior to the effective date of the suspension. The commissioner shall send a suspension notice to such person informing such person that his operator’s license or nonresident operating privilege is suspended as of a date certain and that he is entitled to a hearing prior to the effective date of the suspension and may schedule such hearing by contacting the department of motor vehicles not later than seven days after the date of mailing of such suspension notice.”

4 The fifth amendment to the United States constitution is made applicable to the states by the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 793-96, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969).

5 The defendant was also arrested for failure to drive on the right in violation of General Statutes § 14-230 (a).

6 General Statutes § 14-227b (h) provides in relevant part: “The commissioner shall suspend the operator’s license . . . and revoke the temporary operator’s license ... for a period of: (1) (A) Ninety days, if such person submitted to a test or analysis and the results of such test or analysis indicated that the ratio of alcohol in the blood of such person was ten-hundredths of one per cent or more of alcohol, by weight . . .

7 The defendant also relies on Austin v. United States, 509 U.S. 602, 113 S. Ct. 2801, 125 L. Ed. 2d 488 (1993), to support her claim that a sanction must be solely remedial for it to avoid being denominated punishment for purposes of the double jeopardy clause. In Austin, the court held that the civil forfeiture of a defendant’s property following his conviction and sentencing on drug charges constituted punishment and, therefore, was prohibited by the excessive fines clause of the eighth amendment. Id., 2812. The court reasoned that because the civil forfeiture did not serve solely a remedial purpose, it was subject to the limitations of the eighth amendment. Id.

The defendant’s reliance on Austin, however, is misplaced. First, Austin did not deal with whether the forfeiture constituted a multiple punishment for purposes of the double jeopardy clause, but focused instead on whether the forfeiture was excessive for purposes of the excessive fines clause. Id. Second, the court exhaustively analyzed the historical underpinnings of civil forfeiture, and determined that the traditional view of civil forfeiture as punishment combined with an obvious deterrent and retributive legislative intent, led to the conclusion that the forfeiture at issue could only be properly characterized as punishment. Id. Third, in a more recent case involving a double jeopardy analysis of whether a tax could properly be characterized as punishment; Dept. of Revenue of Montana v. Kurth Ranch, 511 U.S. 767, 114 S. Ct. 1937, 128 L. Ed. 2d 767 (1994); the court referred to the explicit holding of Halper and held that the tax statute was fairly characterized as punishment. Id., 777. The court accepted that the tax served to deter, but noted that such deterrence does not in and of itself automatically cause a tax to be characterized as a punishment. Id., 776-77. The court focused on various punitive factors of the tax that outweighed, under the particular circumstances of that case, any remedial purpose. Id., 777.

8 Contrary to the assertion of the dissent, we do not claim that Bell v. Burson, supra, 402 U.S. 535, requires a hearing prior to the suspension of an operator’s license. As the dissent notes, the state may satisfy due process concerns by providing a hearing either before or after depriving one of the property interest. In this instance, the legislature has chosen to provide a hearing prior to the suspension.

9 Additionally, we note the suspension period increases for subsequent violations of § 14-227b, indicating that the legislature was determined to remove from the roadways for longer periods of time those who repeatedly have exhibited a propensity to drive while under the influence. For example, for a second violation, the offender loses his or her operator’s license for a period of one year, and for three or more violations, the suspension period increases to two years. General Statutes § 14-227b (h).