State v. McClendon , 131 Wash. 2d 853 ( 1997 )

Smith, J.

The parties and a judge of the Whitman County Superior Court jointly seek review of a Whitman County District Court decision granting the respondents’ motion to dismiss charges of driving while under the influence of intoxicating liquor in violation of RCW 46.61.502. We granted review. We reverse and remand for trial.

QUESTION PRESENTED

The sole question presented in this case is whether it is unconstitutional double jeopardy for the State of Washington to prosecute respondents for violation of RCW 46.61.502, driving a vehicle while under the influence of intoxicating liquor, when the Department of Licensing has previously issued each respondent a probationary license after test results showed each had a breath alcohol level of .10 percent or higher.

STATEMENT OF FACTS

The cases against all eight respondents were dismissed by the Whitman County District Court, the Honorable David Frazier, on May 1, 1995. On May 9, 1995 the State of Washington appealed the cases to the Whitman County Superior Court. The judge, the Honorable Wallis W. Friel, and all parties asked this court for direct review. We granted review of the consolidated cases on October 5, 1995.

The eight respondents were initially charged in the Whitman County District Court by the Whitman County Prosecuting Attorney for violations of RCW 46.61.502, driving while under the influence of intoxicating liquor. In connection with the State’s appeal, the parties on June 26, 1995 filed in the Whitman County Superior Court an "Agreed Narrative Report of Proceedings” dated June 16, 1995, which states:

[Respondents] Doy L. McClendon, Gil Crosby, Sally Parrish, Frank Sayre, Richard Triquart, Stephen Stark, Brian Hayton and Mark Booth [were] arrested for suspicion of violating RCW 46.61.502 on 12/9/94, 11/19/94, 12/2/94, 1/31/95, 12/18/94, 2/3/95, 2/9/95 and 3/5/95 [respectively]. Each defendant submitted to a BAC Datamaster Verifier test in compliance with RCW 46.20.308 and all relevant Washington Administrative Code provisions. Each defendant registered a breath test result of .10 or higher. All defendants [were] issued temporary licenses and advised of their right to an administrative hearing pursuant to [RCW] 46.20.365. And, all defendants were issued probationary licenses as a result of their performances on the breath test.

Subsequent to the issuance of the probationary licenses the Whitman County Prosecutor’s office initiated criminal actions in the Whitman County District Court for alleged violations of RCW 46.61.502 [based on] the same conduct. On February 16, 1995, Defense’s Motion to Dismiss for Violation of Double Jeopardy was filed. On February 21, 1995, the State’s response was filed. Argument on this issue was heard by Judge [David] Frazier on March 3 and March 8, 1995. Judge Frazier reserved ruling on the matter. On April 17, 1995, Judge Frazier ruled in favor of the State finding that subjecting a defendant to a civil proceeding which seeks imposition of a probationary driver’s license did not constitute punishment. On April 18, 1995, defense counsel filed Defendant’s Motion for Reconsideration. On April 27, 1995, Judge Frazier reversed his decision of April 17, 1995, ruling in favor of the defense and citing State v. Calle, 125 Wn.2d 769 [888 P.2d 155] (1995), but reserved ruling on the appropriate remedy. On May 1, 1995, over the objections of the State, on the ground of lack of notice, the above-entitled cases [were] consolidated and Findings of Fact and Conclusions of Law were entered granting the defense Motions to dismiss. On May 9, 1995, the State [Appellant] filed a timely Notice of Appeal.

The Findings of Fact and Conclusions of Law entered by the District Court on May 1, 1995 stated:

FINDINGS OF FACT

1. The Defendant was arrested on suspicion of DUI. He/ She agreed to take a breath test which registered .10 or above. Based on these facts, the arresting officer provided to the Washington State Department of Licensing a Report of Breath! Blood Test. Pursuant to RCW 46.20.365 the arresting officer issued to the Defendant a temporary license and the Washington State Department of Licensing initiated administrative action which resulted in the imposition of a five year requirement that Defendant drive on a probationary license.

2. Based on the same facts/incident, the Whitman County Prosecuting Attorney’s Office issued a criminal citation charging the Defendant with the crime of DUI pursuant to RCW 46.61.502.

BASED ON THESE FINDINGS, the court concludes:

CONCLUSIONS OF LAW

1. The State of Washington, based upon the same facts, has initiated two separate and distinct proceedings against the Defendant.

2. The criminal proceeding seeks to punish the Defendant.

3. The civil proceeding brought by the Department of Licensing which seeks imposition of a probationary license also constitutes punishment as that term is considered under double jeopardy analysis pursuant to State v. Calle, 125 Wn.2d 769 [888 P.2d 155] (1995).

THEREFORE, IT IS HEREBY ORDERED:

1. That the criminal charge of DUI filed herein is dismissed with prejudice.

2. Costs are not awarded, but shall abide the outcome of any appeal.

On July 28, 1995, Appellant, Respondents, and the Honorable Wallis W. Friel, Whitman County Superior Court, filed a joint request for direct review by the Supreme Court. We granted review on October 5, 1995. Amicus Curiae, Washington Association of Prosecuting Attorneys, filed a brief in support of Appellant State of Washington on October 26, 1995.

DISCUSSION

Waiver of Rules

Rule for Appeal of Decisions of Courts of Limited Jurisdiction (RALJ) 1.1(a) provides for review by the superior court of certain decisions of courts of limited jurisdiction, including final decisions of district courts.¹ There is no court rule or statute providing for certifying or transferring RALJ appeals from the superior court to the Supreme Court.

This Court’s authority to make rules carries with it the inherent power to waive rules when justice requires it.² We have previously waived rules to promptly resolve issues relating to enforcement of laws governing driving while under the influence of intoxicating liquor or drugs.³ Whether the double jeopardy clause prohibits the state from prosecuting respondents for driving under the influence of intoxicating liquor after the Department of Licensing issues them probationary licenses is a significant question which deserves prompt resolution and merits waiver of the rules for review by this Court. We therefore waive the rule and accept these cases for direct review.

Probationary Licenses and 1995 Legislative Changes

Because the Legislature in 1995 repealed or amended statutes relating to probationary licenses after these appeals were filed, we must first determine whether those changes affect this case.⁴

The Legislature created the new category of "probationary license” in the "1994 Omnibus Drunk Driving Act” (Act), which took effect July 1, 1994.⁵ Under the Act the Department of Licensing (Department) issued probationary licenses to persons under certain circumstances, including those violating RCW 46.61.502⁶ or RCW 46.61.504⁷ who take a test showing a blood alcohol concentration of .10 or higher. Respondents were issued probationary licenses under those statutes.⁸

Under the 1994 Act, former RCW 46.61.5051 provided penalties for a person with a regular driver’s license who was convicted under RCW 46.61.502 and RCW 46.61.504. Former RCW 46.61.5052 outlined penalties for a person with a probationary license who was convicted of violating those statutes. Under the statutes a person with a probationary license was subject to mandatory minimum penalties which were harsher than those imposed upon a person with a regular driver’s license under similar circumstances. For example, a person with a probationary license who violated RCW 46.61.502(l)(a) or RCW 46.61.5Q4(l)(a) because of a blood alcohol level of at least .10, but less than .15, was subject to imprisonment of at least seven days, but not more than a year; a fine of at least $500.00, but not more than $5,000.00; and suspension of that person’s driver’s license or permit for one year.⁹ By comparison, a person holding a regular driver’s license under similar circumstances, who had not been convicted of violating RCW 46.61.502 or RCW 46.61.504 within five years prior to the current violation, was subject to imprisonment for at least one day, but not more than a year; a fine of at least $350.00, but not more than $5,000.00; and suspension of that person’s driver’s license or permit for 90 days.¹⁰

The Legislature in 1995 repealed former RCW 46.61.5051 and former RCW 46.61.5052, effective September 1, 1995.¹¹ It then enacted RCW 46.61.5055, which outlines penalties for all persons convicted of violating RCW 46.61.502 or RCW 46.61.504, effective September 1, 1995.¹² Unlike former RCW 46.61.5052, RCW 46.61.5055 does not provide harsher mandatory minimum penalties for those holding probationary licenses than for those holding regular licenses under similar circumstances.¹³

One of respondents’ primary arguments is that a probationary license is punishment under double jeopardy analysis because it subjects its holder to enhanced mandatory minimum penalties in the future if that person subsequently violates RCW 46.61.502 or RCW 46.61.504. The 1995 statute, RCW 46.61.5055, does not provide enhanced mandatory minimum penalties for persons holding probationary licenses. The 1995 statute would satisfactorily overcome respondents’ argument on double jeopardy if it were applied retroactively. But we conclude it applies only prospectively.

A statute is presumed to apply prospectively unless it is remedial in nature or unless the Legislature provides for retroactive application.¹⁴ A remedial statute is one which relates to practice, procedures and remedies and is applied retroactively when it does not affect a substantive or vested right.¹⁵ "A 'right’ is a legal consequence deriving from certain facts, while a remedy is a procedure prescribed by law to enforce a right.”¹⁶ There is no legislative indication in the language or history of RCW 46.61.5055 that it is to be applied retroactively.¹⁷ The presumption that RCW 46.61.5055 applies prospectively only is strengthened by the Legislature’s use of only present and future tenses in the wording.¹⁸ We conclude that RCW 46.61.5055 should not be applied retroactively, but applied prospectively only. Accordingly, other 1995 legislative changes to statutes relevant to this case also should not be applied retroactively.¹⁹ We therefore focus our attention on the statutes in effect when Respondents were charged prior to the 1995 changes.

Because there are no disputed facts, we will consider only questions of law, which we review de novo.²⁰

Double Jeopardy

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 (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense.²¹ All parties agree the issue here concerns protection against multiple punishment for the same offense.

The State contends issuance of probationary licenses was a permissible exercise of the State’s police power, and not "punishment” contemplated under the double jeopardy clause of the Fifth Amendment to the United States Constitution and Washington Constitution, article I, section 9.²² Thus, the State claims the double jeopardy clause does not bar punishment or prosecution of respondents for driving while under the influence of intoxicating liquor.

Respondents contend a probationary license is punishment under the double jeopardy clause because it serves retributive and deterrent purposes and serves no remedial purpose. Respondents rely principally upon the United States Supreme Court case of United States v. Halper²³ and the cases following it to support this argument.

Civil Sanctions as "Punishment”

The Supreme Court first decided when a civil penalty may be considered punishment under the double jeopardy clause in United States v. Halper,²⁴ The Court framed the issue in that case as "whether a civil sanction, in application, may be so divorced from any remedial goal that it constitutes 'punishment’ for the purpose of double jeopardy analysis.”²⁵

In Halper, the Supreme Court stated 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.”²⁶ Respondents rely upon this language to contend that a probationary license is punishment because it does not "solely” serve a remedial purpose.²⁷ But the Court later in Halper announced its explicit holding, which actually departed significantly from its earlier statement:

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.[²⁸]

Other appellate courts have relied upon and distinguished the explicit holding in Halper from the earlier quoted statement from that same case.²⁹ Under Halper, a probationary license would be considered punishment under double jeopardy analysis only if it "may not fairly be characterized as remedial, but only as a deterrent or retribution.”³⁰

Respondents claim a probationary license is retributive and serves as a deterrent because it potentially enhances mandatory minimum penalties for the holder who is convicted in the future of violating RCW 46.61.502 or RCW 46.61.504.³¹ They argue probationary licenses have no remedial purpose. But former RCW 46.20.355 states that "[t]he probationary license shall enable the [Department of Licensing and officers] to determine that the person is on probationary status, including the period of that status for a violation of RCW 46.61.502 or 46.61.504 . . . .” Former RCW 46.20.355(4) confirms that probationary licenses serve a remedial purpose because they alert the Department and law enforcement officers to a person’s probationary status. As recognized by the State, issuing a probationary license to a driver also informs that person that further violative conduct will not be tolerated.³² Under that circumstance, issuance of a probationary license can fairly be characterized as remedial and does not serve retributive or deterrent purposes only.

The Supreme Court in Halper further explained and narrowed application of its decision by stating, "What we announce now is a rule for the rare case, the case such as the one before us, where a fixed-penalty provision subjects a prolific but small-gauge offender to a sanction overwhelmingly disproportionate to the damages he has caused.”³³

This case is neither rare nor exceptional. "Drunk drivers cause an annual death toll of over 25,000 and in the same time span cause nearly one million personal injuries and more than five billion dollars in property damage.”³⁴ This is not a case where a "fixed penalty provision” subjected respondents to a "sanction overwhelmingly disproportionate” to the damage they caused.³⁵ A probationary license is not a "sanction overwhelmingly disproportionate” to the danger a drunk driver represents on the public highways. The State correctly points out that a probationary license alone does not limit a person’s privilege to drive, does not inevitably subject a person to imprisonment or monetary penalties, and does not cause a person to forfeit property.³⁶

Respondents interpret the Halper decision too broadly. Halper applies to the "rare case” where a person is subject to a civil penalty "overwhelmingly disproportionate” to the damages that person caused. That circumstance is not present in this case. We conclude the Halper decision does not apply to the facts of this case.

Respondents also rely upon Montana v. Kurth Ranch³⁷ in arguing that issuance of probationary licenses is "punishment.” At issue in that case was whether a drug tax imposed by the State of Montana could be characterized as punishment for double jeopardy purposes. The Supreme Court in that case recognized that Halper decided when a civil penalty might be "punishment” under double jeopardy analysis, but stated "[o]ur answer to that question does not decide the different question whether Montana’s tax should be characterized as punishment.”³⁸

The Court in Kurth Ranch held Montana’s tax was punishment, but did not rely upon Halper in reaching its decision. Recognizing that tax statutes serve a different purpose than civil penalties, the Court agreed Halper's method of determining whether the penalty was remedial or punitive "does not work in the case of a tax statute.”³⁹ In reaching its decision, the Court looked at the particular facts and circumstances surrounding the Montana tax and compared it to similar taxes that were not considered "punishment” for double jeopardy purposes. In doing so, the Court noted that "neither a high rate of taxation nor an obvious deterrent purpose automatically marks this tax a form of punishment.”⁴⁰ Noting the high but valid taxes on cigarettes and alcohol, which may also have a deterrent effect on its users, the Court further stated "[tjhus, while a high tax rate and deterrent purpose lend support to the characterization of the drug tax as punishment, these features ... do not necessarily render the tax punitive.”⁴¹ The Court distinguished the Montana drug tax from other similar taxes to conclude that the tax was "punishment” for double jeopardy purposes.

Any deterrent effect from issuance of probationary licenses in this case does not "automatically” identify it as a form of punishment nor necessarily make it punitive. Respondents argue probationary licenses are a form of punishment. But "whether a sanction constitutes punishment” is not determined from the defendant’s perspective because "for the defendant even remedial sanctions carry the sting of punishment.”⁴²

Although the Court in Kurth Ranch did not rely upon Halper in reaching its decision, it did acknowledge Halper’s holding that "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 be fairly characterized as remedial, but only as a deterrent or retribution.”⁴³

Respondents rely not only upon expansive language in Halper, but also cite Austin v. United States⁴⁴ and United States v. $405,089.23 in U.S. Currency⁴⁵ to support their argument that a sanction not "solely remedial” is punishment. In Austin, decided before Kurth Ranch, the Supreme Court held that the Excessive Fines Clause applied to forfeiture procedures. As respondents argue in this case, the Court in Austin pointed to the "solely remedial” language in Halper in reaching its decision.⁴⁶ But Austin involved the Excessive Fines Clause, and did not purport to modify the explicit holding in Halper which has been more recently recognized in Kurth Ranch.

Under Halper, the purposes actually served by the sanction at issue must be assessed in determining whether a civil sanction is "punishment” under double jeopardy analysis.⁴⁷ The issuance of probationary licenses is punishment only if it can be characterized as serving solely retributive or deterrent purposes.⁴⁸ If their issuance may fairly be characterized as remedial and bears a rational relation to the government’s remedial purpose, then it is not punishment for double jeopardy purposes.⁴⁹

We conclude that issuance of probationary licenses in this case was remedial, comporting with the principles in Halper. It is true that a probationary license subjects its holder to enhanced minimum mandatory penalties, but that happens only if the person subsequently violates RCW 46.61.502 or RCW 46.61.504.⁵⁰ Although a probationary license subjects its holder to fees or potentially harsher minimum penalties, the sanction is rationally related to the government’s goal of protecting the public. Probationary licenses may carry with them the "sting” of punishment, but that does not necessarily characterize them as "punishment” for double jeopardy purposes. The Court in Halper recognized the government is "entitled to rough remedial justice” in determining whether a sanction could be fairly characterized as remedial or solely punitive for double jeopardy purposes.⁵¹

Amicus Curiae, Washington Association of Prosecuting Attorneys, referring to Kurth Ranch, suggests this Court should look to the historical background of administrative licensing proceedings to determine whether issuance of probationary licenses in this state constitutes "punishment.” The State correctly points out that administrative licensing proceedings in this state have long been considered remedial, and not punitive. Respondents also acknowledge that license revocation or suspension is "clearly remedial, at least in part” because it removes dangerous drivers from the road to the benefit of the public.⁵² Revocation of a driver’s license is not "punishment” under the double jeopardy clause, but is a permissive exercise of the State’s police power to protect users of the public highways.⁵³ Under Halper and the cases following it, a number of state appellate courts have held that revocation or suspension of driver’s licenses is not "punishment” for double jeopardy purposes.⁵⁴

Issuance of probationary licenses is a procedure far short of the more drastic ones of suspension or revocation of licenses. It ultimately protects users of public highways, and thus, under Halper, is fairly characterized as remedial and not solely retributive or deterrent.

CONCLUSION

We conclude that administrative issuance of probationary licenses is not punishment under the double jeopardy clause. We also conclude that RCW 46.61.502 is constitutional. We reverse the decision of the Whitman County District Court granting respondents’ motion to dismiss charges of driving while under the influence of intoxicating liquor in violation of the statute and remand for trial in the Whitman County District Court.

Dolliver, J., concurs.

1 RAL-J 1.1(a) provides in pertinent part:

"(a) Proceedings Subject to Rules. These rules establish the procedure, called appeal, for review by the superior court of a final decision of a court of limited jurisdiction, subject to the restrictions defined in this rule. These rules apply ... to review of (1) district courts . . . .”

2 O’Connor v. Matzdorff, 76 Wn.2d 589, 596-97, 458 P.2d 154 (1969).

3 City of Seattle v. Williams, 128 Wn.2d 341, 908 P.2d 359 (1995).

4 See Laws of 1995, ch. 332; Laws of 1995, 1st Spec. Sess., ch. 17.

5 Laws of 1994, ch. 275.

6 Under RCW 46.61.502 it is a gross misdemeanor for a person to (1) drive and have a blood alcohol concentration of 0.10 within two hours after driving, as shown by tests; or (2) drive while under the influence of or affected by intoxicating liquor or drugs; or (3) drive while under the influence of or affected by intoxicating liquor and drugs.

7 Under RCW 46.61.504 a person commits a gross misdemeanor for being in actual physical control of a motor vehicle and (1) under the influence of intoxicating liquor or drugs within two hours after being in physical control of the vehicle; or (2) while under the influence of or affected by intoxicating liquor or drugs; or (3) while under the influence of or affected by intoxicating liquor and drugs.

8 RCW 46.20.365(3)(a) (repealed 1995). This section, referring to RCW 46.61.502 and RCW 46.61.504, provided that probationary licenses were issued to persons arrested in such circumstances only if it was the first such incident within five years.

9 RCW 46.61.5051(1) (repealed 1995).

10 RCW 46.61.5052(1) (repealed 1995).

11 See Laws of 1995, ch. 332.

12 Laws of 1995, 1st Spec. Sess., ch. 17.

13 See Laws of 1995, ch. 332; Laws of 1995, 1st Spec. Sess., ch. 17.

14 See Washington Waste Sys., Inc. v. Clark County, 115 Wn.2d 74, 794 P.2d 508 (1990); Miebach v. Colasurdo, 102 Wn.2d 170, 181, 685 P.2d 1074 (1984).

15 In re F. D. Processing, Inc., 119 Wn.2d 452, 463, 832 P.2d 1303 (1992); Miebach, 102 Wn.2d at 181.

16 Department of Retirement Sys. v. Kralman, 73 Wn. App. 25, 33, 867 P.2d 643 (1994).

17 Adcox v. Children’s Orthopedic Hosp. & Med. Ctr., 123 Wn.2d 15, 30, 864 P.2d 921 (1993).

18 Id.

19 The Legislature repealed former ROW 46.20.365, which also relates to probationary licenses. In addition, in 1995 it amended sections of the 1994 Act relating to probationary licenses, including former ROW 46.20.355. See Laws of 1995, ch. 332 and Laws of 1995,1st Spec. Sess., ch. 17 (which contains a complete history of the 1995 legislative changes to the 1994 Omnibus Drunk Driving Act).

20 State v. Ford, 125 Wn.2d 919, 891 P.2d 712 (1994), reconsideration denied (May 9, 1995); Timberline Air Serv., Inc. v. Bell Helicopter-Textron, Inc., 125 Wn.2d 305, 311, 884 P.2d 920 (1994).

21 U.S. v. Halper, 490 U.S. 435, 440, 109 S. Ct. 1892, 104 L. Ed. 2d 487 (1989).

22 We do not discuss the State’s claim under the Washington State Constitution because the State has not analyzed the factors in State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808, 76 A.L.R.4th 517 (1986), to determine whether the state constitution should he independently or more broadly interpreted. This court will not engage in independent state constitutional analysis when a claimant does not adequately brief the Gunwall factors. State v. Maxfield, 125 Wn.2d 378, 394, 886 P.2d 123 (1994); State v. Wethered, 110 Wn.2d 466, 472-73, 755 P.2d 797 (1988).

23 490U.S. 435, 109 S. Ct. 1892, 104 L. Ed. 2d 487 (1989).

24 Id.

25 Id. at 443.

26 Id. at 448 (emphasis added).

27 Br. of Resp’ts at 8-12.

28 Halper, 490 U.S. at 448-49 (emphasis added).

29 State v. Hickam, 235 Conn. 614, 668 A.2d 1321, 1324 (1995); State v. Hanson, 532 N.W.2d 598, 601 (Minn. Ct. App. 1995), aff’d 543 N.W.2d 84 (Minn. 1996); Tench v. Commonwealth, 21 Va. App. 200, 204-05, 462 S.E.2d 922 (1995).

30 Halper, 490 U.S. at 449.

31 Compare former RCW 46.61.5051 with former RCW 46.61.5052.

32 Br. of Resp’ts at 13.

33 Halper, 490 U.S. at 449.

34 Michigan Dep’t of State Police v. Sitz, 496 U.S. 444, 451, 110 S. Ct. 2481, 110 L. Ed. 2d 412 (1990) (quoting 4 Wayne R. LaFave, Search and Seizure: A Treastise on the Fourth Amendment § 10.8(d), at 71 (2d ed. 1987)).

35 Halper, 490 U.S. at 449.

36 Br. of Appellant at 7. But former ROW 46.20.355(3) and former RCW 46.20.311 did require a $50.00 yearly probationary fee.

37 511 U.S. 767, 114 S. Ct. 1937, 128 L. Ed. 2d 767 (1994).

38 114 S. Ct. at 1944.

39 114 S. Ct. at 1948 (quoting with agreement language from the dissenting opinion of Rehnquist, C.J., at 1950).

40 114 S. Ct. at 1946.

41 114 S. Ct. at 1947.

42 Halper, 490 U.S. at 447 n.7.

43 Kurth Ranch, 114 S. Ct. at 1945 (quoting Halper, 490 U.S. at 448-49).

44 509 U.S. 602, 113 S. Ct. 2801, 125 L. Ed. 2d 488 (1993).

45 33 F.3d 1210 (9th Cir. 1994), opinion amended on denial of reh’g, 56 F.3d 41 (1995), cert granted, 516 U.S. 1070, 116 S. Ct. 762, 133 L. Ed. 2d 707 (1996).

46 Austin, 113 S. Ct. at 2812.

47 490 U.S. at 447 n.7.

48 Halper, 490 U.S. at 449.

49 id.

50 RCW 46.61.5052 (repealed 1995).

51 Halper, 490 U.S. at 446.

52 Br. of Resp’ts at 14.

53 O’Day v. King County, 109 Wn.2d 796, 817, 749 P.2d 142 (1988); State v. Scheffel, 82 Wn.2d 872, 879, 514 P.2d 1052 (1973), appeal dismissed, 416 U.S. 964 (1974).

54 See State v. Zerkel, 900 P.2d 744 (Alaska Ct. App. 1995), reh’g denied (Aug. 14, 1995), and hearing denied (Dec. 4, 1995); Baldwin v. Department of Motor Vehicles, 35 Cal. App. 4th 1630, 42 Cal. Rptr. 2d 422 (1995), as modified on denial of reh’g (Jul. 7,1995), and review denied (Sep. 8, 1995); Davidson v. Mackinnon, 656 So. 2d 223 (Fla. Dist. Ct. App.), review denied, 662 So. 2d 931 (Fla. 1995); State v. Higa, 79 Haw. 1, 897 P.2d 928 (1995), reconsideration denied (Jun. 13, 1995); State v. Funke, 531 N.W.2d 124 (Iowa 1995); State v. Jones, 340 Md. 235, 666 A.2d 128 (1995), cert denied, 516 U.S. 1173, 116 S. Ct. 1265, 134 L. Ed. 2d 213 (1996); State v. Savard, 659 A.2d 1265 (Me. 1995); State v. Hanson, 532 N.W.2d 598 (Minn. Ct. App. 1995), aff’d, 543 N.W.2d 84 (Minn. 1996); State v. Young, 3 Neb. App. 539, 530 N.W.2d 269 (1995), review sustained (May 11,1995); State v. Zimmerman, 539 N.W.2d 49 (N.D. 1995); State v. Strong, 158 Vt. 56, 605 A.2d 510 (1992).