State v. Lawton , 167 Wis. 2d 461 ( 1992 )

DYKMAN, J.

While traveling eastbound on a state highway, Timothy Lawton fell asleep at the wheel of his vehicle. The vehicle drifted into the westbound lane and collided with a motorcycle, killing both riders. Lawton was issued a traffic citation for operating a motor vehicle while intoxicated (OMVWI) as a first offender, contrary to sec. 346.63(l)(a), Stats. The district attorney subsequently charged Lawton with two counts of homicide by intoxicated use of a motor vehicle, contrary to sec. 940.09(l)(a), Stats., and two counts of homicide by use of a motor vehicle while having a blood alcohol concentration of 0.1% or more, contrary to sec. 940.09(l)(b), Stats.

Lawton pled no contest to the first offender OMVWI charge. He then moved to dismiss the homicide charges, arguing that the prosecution was barred by double jeopardy. The trial court denied Lawton's motion, reasoning that the OMVWI prosecution constituted a civil, rather than criminal, proceeding. We granted Lawton leave to appeal from the nonfinal order, and we now affirm.

I. DOUBLE JEOPARDY

A criminal defendant is protected against being placed twice in jeopardy by the fifth amendment to the United States Constitution and article I, section 8, of the Wisconsin Constitution.¹ The United States Supreme Court has interpreted the double jeopardy clause as embodying a triumvirate of safeguards, protecting a defendant against: (1) a second prosecution for the same offense following acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717 (1969); United States v. Mena, 933 F.2d 19, 29 (1st Cir. 1991). This case implicates the second protection — prosecution after conviction for the same offense. See Ohio v. Johnson, 467 U.S. 493, 498-99 (1984).

The prohibition on successive prosecutions protects "the defendant from multiple trials and multiple punishments for the same offense" and preserves "the finality of judgments." State v. Martin, 121 Wis. 2d 670, 675, 360 N.W.2d 43, 46 (1985).

The underlying idea ... is that the State -with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.

Green v. United States, 355 U.S. 184, 187-88 (1957). Multiple prosecutions also "give the State an opportunity to rehearse its presentation of proof, thus increasing the risk of an erroneous conviction for one or more of the offenses charged." Grady v. Corbin, 495 U.S. 508, 518 (1990) (citations omitted).

A. Double Jeopardy Challenges in the Civil/Criminal Contest

In case law culminating with United States v. Halper, 490 U.S. 435 (1989), the United States Supreme Court has employed a specific analysis to determine whether a penalty is civil or criminal for purpose of double jeopardy. In Helvering v. Mitchell, 303 U.S. 391 (1938), the defendant was acquitted of income tax fraud. The government then brought a civil action to recover the tax deficiency plus an ádditional fifty percent statutory penalty for fraud. The defendant argued that the civil action subjected him to double jeopardy because the statutory penalty was intended as a punishment rather than a tax. Id. at 395-98.

The Court disagreed, holding that ”[u]nless this sanction was intended as punishment, so that the proceeding is essentially criminal, the double jeopardy clause provided for the defendant in criminal prosecutions is not applicable," id. at 398-99, and that the question of whether a civil penalty is actually a criminal sanction "is one of statutory construction." Id. at 399 (citation omitted); see, e.g., United States ex rel. Marcus v. Hess, 317 U.S. 537 (1943); Rex Trailer Co. v. United States, 350 U.S. 148 (1956).

In United States v. One Assortment of 89 Firearms, 465 U.S. 354 (1984), the defendant was acquitted of criminal charges for dealing in firearms without a license. The government then instituted an in rem action for forfeiture of the seized firearms. Quoting from its decision in United States v. Ward, 448 U.S. 242, 248-49 (1980),² the Court delineated a methodology for examining double jeopardy challenges in the civil/criminal context:

Our inquiry in this regard has traditionally proceeded on two levels. First, we have set out to determine whether Congress, in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other. Second, where Congress has indicated an intention to establish a civil penalty, we have inquired further whether the statutory scheme was so punitive either in puipose or effect as to negate that intention.

89 Firearms, 465 U.S. at 362-63 (citations omitted).

In the recent decision of United States v. Halper, 490 U.S. 435 (1989), the Court emphasized the second part of the Ward methodology. In Halper, the defendant defrauded the government of $585 by filing false Medicare claims. The defendant was convicted of sixty-five counts of violating the criminal false-claims statute. The government then brought an action for statutory penalties in excess of $130,000 under the civil false-claims statute. Id. at 437-38.

The Halper court observed 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.” Id. at 448 (citation omitted).

[T]he determination whether a given civil sanction constitutes punishment in the relevant sense requires a particularized assessment of the penalty imposed and the purposes that the penalty may fairly be said to serve. Simply put, a civil as well as a criminal sanction constitutes punishment when the sanction as applied in the individual case serves the goals of punishment.

Id. at 448. The Court found the disparity between the expense to the government and the defendant's $130,000 liability "sufficiently disproportionate that the sanction constitutes a second punishment in violation of double jeopardy." Id. at 452.³

Halper indicates the continuing validity of the methodology employed by the courts in Mitchell and 89 Firearms in examining double jeopardy challenges in the criminal/civil context. These cases "establish that a civil sanction will not trigger an inquiry under the double jeopardy clause unless the statute under which it is imposed is criminal in nature." Elizabeth S. Jahncke, United States v. Halper, Punitive Civil Fines, and the Double Jeopardy and Excessive Fines Clauses, 66 N.Y.U. L. Rev. 112, 128 (1991).⁴ With this analysis in mind, we reexamine our decision in State v. Schulz.⁵

B. State v. Schulz

In State v. Schulz, 100 Wis. 2d 329, 302 N.W.2d 59 (Ct. App. 1981), the defendant moved for dismissal of two charges of homicide by intoxicated use of a motor vehicle, contending that his previous prosecution for a first offender OMVWI arising out of the same incident barred the subsequent prosecution on double jeopardy grounds. Id. at 330, 302 N.W.2d at 60. At the time Schulz was decided, a first offender of sec. 346.63(1), Stats. (1979-80), was subject to the following penalties: (1) monetary forfeiture of not less than $100 nor more than $500, sec. 346.65(2)(a)l, Stats. (1979-80); (2) license revocation for not less than three months nor more than six months or rehabilitation treatment in lieu of all or part of the revocation, sec. 343.30(1q)(a), (b) and (c), Stats. (1979-80); and (3) compulsory attendance at a driver safety school, sec. 345.60, Stats. (1979-80). In addition, if the offender did not pay the forfeiture, the court could order imprisonment. Section 345.47(1)(a), Stats. (1979-80).

We concluded that the removal by the legislature in 1971 of fines or imprisonment as penalties for violation of sec. 346.63(1), Stats., evidenced "a legislative intent to establish a civil penalty." Schulz, 100 Wis. 2d at 331, 302 N.W.2d at 61 (citing sec. 778.01, Stats.⁶). We further concluded that the penalties were not so punitive in purpose or effect to negate the intent of the legislature. We held:

The potential forfeiture of $500 is not sufficient to trigger the protection of the double jeopardy clause. See Ward. Loss of license or the possibility of imprisonment as a means of enforcing the forfeiture is not so punitive as to cause us to conclude that jeopardy should attach. See State ex rel. Prentice v. County Court, 70 Wis. 2d 230, 234 N.W.2d 283 (1975); [State v.] Albright[, 98 Wis. 2d 663, 298 N.W.2d 196 (Ct. App. 1980)]. The purpose and effect of requiring attendance at a driver safety school is clearly remedial and not punitive.

Schulz, 100 Wis. 2d at 331, 302 N.W.2d at 61; see State v. Kramsvogel, 124 Wis. 2d 101, 113-120, 369 N.W.2d 145, 150-54, cert. denied, 474 U.S. 901 (1985); State v. Folk, 117 Wis. 2d 42, 47, 342 N.W.2d 761, 763-64 (Ct. App. 1983).

Lawton asserts that our holding in State v. Schulz is no longer good law. To support this contention, he advances two arguments. First, he argues that Grady v. Corbin, 495 U.S. 508 (1990), requires a different result. Second, he maintains that, since Schulz was decided, the penalties which may be imposed for violating sec. 346.63(1), Stats., have increased in severity to a degree that they can only be fairly characterized as punishment.

II. GRADY V. CORBIN

In Grady, the defendant injured one person and killed another when he drove his vehicle across the median and collided with two oncoming vehicles. He was served with two traffic tickets. The first charged him with driving while intoxicated, a misdemeanor, contrary to N.Y. Veh. & Traf. Law § 1192(3) (McKinney 1986). The second charged him with failing to keep right of the median, a "traffic infraction," contrary to § 1120(a). See § 155.⁷ The defendant pled guilty to the charges and received a minimum sentence. Grady, 495 U.S. at 511-13.

Two months later, the defendant was indicted on charges of reckless manslaughter, vehicular manslaughter, negligent homicide and reckless assault, stemming from the same accident. Id. at 513. The New York Court of Appeals held that the second prosecution was barred by double jeopardy because the State intended to rely upon the fact that the defendant was intoxicated and that he crossed the median to prove the felony charges, 543 N.E.2d 714, 719-20 (N.Y. 1989), and the United States Supreme Court affirmed. 495 U.S. at 522-24.

The Grady Court again relied upon the use, as a threshold inquiry, of the test articulated in Blockburger v. United States, 284 U.S. 299 (1932), to determine whether the offenses were the same for double jeopardy purposes. "The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not." Blockburger at 304 (citation omitted).

A subsequent prosecution, however, "must do more than merely survive the Blockburger test." Grady, 495 U.S. at 521. The double jeopardy clause is also implicated in "any subsequent prosecution in which the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted." Id. (footnote omitted).⁸

Lawton argues that, by allowing jeopardy to attach to a "civil" violation — the "traffic infraction" in Grady — the Supreme Court has blurred the distinction between criminal and civil penalties and signalled its intention to broadly apply double jeopardy protection to both. We disagree. We do not read Grady as abrogating the distinction between criminal and civil sanctions. Nor do we believe the Grady Court intended to discard the civil/criminal methodology to determine whether a civil sanction is, in reality, a punishment.

Our interpretation is supported by decisions from other jurisdictions. In Taylor v. Sherrill, 819 P.2d 921 (Ariz. 1991), the defendant was cited for violating three civil traffic laws (speeding, unsafe turn, and failure to provide proof of insurance). After the defendant failed to appear at a pretrial hearing, the trial court entered default judgments against him for the speeding and unsafe turn violations. Id. at 923.

The defendant was subsequently convicted of numerous criminal charges stemming from the accident. He moved to dismiss some of the criminal charges "because the default civil judgments for speeding and unsafe turn had already placed him in jeopardy." Id. at 923. The Arizona Court of Appeals agreed, noting that, ''[i]n Grady, jeopardy was held to attach to a 'civil' traffic violation under the New York Code. That charge, crossing the center line, is hardly distinguishable from charges of unsafe turning or even speeding." 802 P.2d 1058, 1062 (Ariz. Ct. App. 1990).

Vacating the appellate court's decision, the Arizona Supreme Court held:

[W]e think it highly unlikely that the Supreme Court would depart from the well-settled principle, in multi-prosecution analysis, that "the risk to which the [Double Jeopardy] Clause refers is not present in proceedings that are not 'essentially criminal,' " Breed v. Jones, 421 U.S. 519, 528, 95 S. Ct. 1779, 1785, 44 L. Ed. 2d 346 (1975) (quoting Helvering v. Mitchell, 303 U.S. 391, 398, 58 S. Ct. 630, 633, 82 L. Ed. 917 (1938), without explicitly saying so.

819 P.2d at 926 (citation omitted).

Similarly, in Purcell v. United States, 594 A.2d 527 (D.C. 1991), the defendant moved to dismiss, on double jeopardy grounds, an indictment for negligent homicide because he had already been subject to a hearing and paid a fine for traffic citations arising from the same incident. Id. at 527-28. The court rejected the motion, concluding that because the traffic offenses were civil violations, the case was "beyond the reach of Grady v. Corbin." Id. at 529.

We are troubled by the fact that one of the offenses for which the defendant in Grady was charged involved a civil "traffic infraction." However, we do not interpret Grady as discarding, sub silentio, the civil/criminal methodology that the Court has developed, culminating in United States v. Halper, and substituting in its place an as-yet-undefined, but certainly less strict, analysis for applying the double jeopardy clause to civil penalties. Like the court in Taylor, we believe that if the Court intended to restrict or overrule the Mitchell/89 Firearms/Halper line of cases, it would have manifested this intent "explicitly."

III. SECTION 346.63(1), STATS.

Lawton argues that, even assuming the Ward civil/ criminal analysis is still applicable, the severity of the penalties under sec. 346.63(1), Stats., have increased since Schulz to a degree that they now constitute punishment for the purpose of double jeopardy. A first offender of sec. 346.63(1) is currently subject to the following sanctions: (1) monetary forfeiture of not less than $150 nor more than $300, sec. 346.65(2)(a), Stats.; (2) license revocation for not less than six months nor more than nine months, sec. 343.30(lq)(b)2, Stats.; (3) mandatory participation in an alcohol assessment and driver safety program, sec. 343.30(lq)(c) and (d), Stats.; and (4) performance of community service, sec. 346.65(2g), Stats. In addition, the offender may be incarcerated for nonpayment of the forfeiture until it is paid, for a period not to exceed ninety days, sec. 345.47(1)(a), Stats.

We note, first, that since Schulz was decided, the maximum monetary forfeiture has decreased, from $500 to $300. In addition, one cannot seriously contend that compelled participation in alcohol assessment and driver safety programs serves no remedial function. ”[T]he process of assessing and rehabilitating the offender is separate and distinct from the penalty process." Thomas J. Hammer, The New OMVWI Law: Wisconsin Changes its Approach to the Problem of Drinking and Driving, 55 Wis. Bar. Bull. 9, 11 (April 1982). Nor do we believe that increasing the maximum license revocation period from six months to nine months renders that penalty "overwhelmingly disproportionate" to the offense. United States v. Halper, 490 U.S. at 449.

To support his argument that the penalties for a first offender OMVWI are punishment, Lawton relies principally upon the fourth penalty — the performance of community service. He argues that community service only serves as "a form of payment back to society." We disagree. Community service, particularly when it involves tasks such as emergency room assistance, can further rehabilitative goals.

We conclude that the first offender OMVWI prosecution in the instant case was a civil, rather than criminal, proceeding, and that jeopardy did not attach.

By the Court. — Order affirmed.

1 The fifth amendment to the United States Constitution provides in part, "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb." Article I, section 8 of the Wisconsin Constitution provides in part, "no person for the same offense may be put twice in jeopardy of punishment." The federal prohibition against double jeopardy applies to the state through the due process clause of the fourteenth amendment. Benton v. Maryland, 395 U.S. 784, 794 (1969). Decisions of the United States Supreme Court govern both provisions. State v. Rabe, 96 Wis. 2d 48, 61-62 n.7, 291 N.W.2d 809, 815-16 n.7 (1980); State v. Harris, 161 Wis. 2d 758, 760, 469 N.W.2d 207, 208 (Ct. App. 1991).

2 In Ward, the Court held that a proceeding for the assessment of a civil penalty under the Federal Water Pollution Control Act was not a "criminal case” under the self-incrimination clause of the fifth amendment. 448 U.S. at 253-55.

3 The Halper court remanded the case to the district court to allow the government "an opportunity to present... an accounting of its actual costs arising from Halper's fraud." Id. at 452.

4 For a discussion of the Mitchell/89 Firearms/Halper line of cases, see also Andrew Z. Glickman, Comment, Civil Sanctions and the Double Jeopardy Clause: Applying the Multiple Punishment Doctrine to Parallel Proceedings after United States v. Halper, 76 Va. L. Rev. 1251 (1990); Laureen O. Clapp, Note, United States v. Halper, Remedial Justice and Double Jeopardy, 68 N.C. L. Rev. 979 (1990); 3 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure § 24.1 (1984 & Supp. 1991).

5 The dissent suggests that the "multiple punishment" analysis applied in Halper is inapplicable to "successive prosecution" cases, such as the one at bar. See dissent, at 478.

In a "pure" multiple punishment case, i.e., where a defendant is subject to multiple punishment for the same offense in a single proceeding, the state need only show that the legislature intended to allow the penalties to be aggregated. See Missouri v. Hunter, 459 U.S. 359, 368-69 (1983) ("Where . . . a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the 'same' conduct under Blockburger, a court's task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial."); see also Ohio v. Johnson, 467 U.S. 493, 499 n.8 (1984); Halper, 490 U.S. at 450-51; Jahncke, supra, at 138 n.211.

Second, although the Court in Halper did characterize that case as one involving "multiple punishments for the same offense," id. at 440, it nowhere suggested that the analysis was inapplicable to successive punishment cases. Indeed, the Court, in dicta, blurred considerably whatever distinction it may have intended to make between the two types of cases:

That the Government seeks the civil penalty in a second proceeding is critical in triggering the protections of the Double Jeopardy Clause . . .. [W]hen the Government already has imposed a criminal penalty and seeks to impose additional punishment in a second proceeding, the Double Jeopardy Clause protects against the possibility that the Government is seeking the second punishment because it is dissatisfied with the sanction obtained in the first proceeding.

Id. at 451 n.10; see Jahncke, supra, at 135 ("the Court implicitly categorized Halper as both a multiple punishment and a successive prosecution case").

Finally, were the dissent's interpretation of Grady v. Corbin — that the double jeopardy clause now applies with equal force to civil penalties, regardless of whether they constitute "punishment" under Halper — correct, it would represent a substantial shift in double jeopardy jurisprudence.

6 Section 778.01, Stats., provides:

Where a forfeiture imposed by statute shall he incurred it may be recovered in a civil action unless the act or omission is punishable by fine and imprisonment or by fine or imprisonment. The word forfeiture, as used in this chapter, includes any penalty, in money or goods.

7 N.Y. Veh. & Traf. Law § 155 (McKinney 1986) defines a "traffic infraction," in part, as:

The violation of any provision of this chapter, except articles forty-seven and forty-eight, or of any law, ordinance, order, rule or regulation regulating traffic which is not declared by this chapter or other law of this state to he a misdemeanor or a felony. A traffic infraction is not a crime and the punishment imposed therefor shall not be deemed for any purpose a penal or criminal punishment. . ..

8 The Grady decision has been the subject of extensive commentary. See James M. Herrick, Comment, Double Jeopardy Analysis Comes Home: The "Same Conduct" Standard in Grady v. Corbin, 79 Ky. L.J. 847 (1991); Craig J. Webre, Comment, Grady v. Corbin: Successive Prosecutions Must Survive Heightened Double Jeopardy Protection, 36 Loy. L. Rev. 1171 (1991); Sara Burton, Comment, Grady v. Corbin, An Unsuccessful Effort to Define "Same Offense," 25 Ga. L. Rev. 143 (1990).