William M. Kenison v. Commonwealth ( 1999 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Bumgardner and Senior Judge Hodges
Argued at Alexandria, Virginia
WILLIAM M. KENISON
MEMORANDUM OPINION * BY
v. Record No. 1688-97-4 JUDGE RUDOLPH BUMGARDNER, III
FEBRUARY 23, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Jane Marum Roush, Judge
J. Burkhardt Beale (Boone, Beale, Cosby &
Long, on brief), for appellant.
John H. McLees, Jr., Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
William M. Kenison appeals his jury conviction for driving
under the influence in violation of Code § 18.2-266. He argues
that this conviction is double jeopardy because he was subjected
to an administrative license suspension. He further argues that
the administrative and criminal penalties were separate and
distinct punitive proceedings for the same act. Finding no
error, we affirm the defendant's conviction.
The defendant was arrested for driving under the influence.
A magistrate suspended his license administratively for seven
days pursuant to Code § 46.2-391.2. The defendant moved to
dismiss the criminal warrant arguing it was a violation of his
right not to be placed in double jeopardy. The trial court
*
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
denied his motion, convicted him, and imposed a fine and
suspension of his privilege to drive.
The defendant contends that Code § 19.2-294 barred his
prosecution for driving under the influence because the
administrative license suspension had subjected him to a prior
adjudication. Brame v. Commonwealth, 252 Va. 122, 476 S.E.2d 177(1996), decides this point. In Brame, the Supreme Court held
that an administrative license suspension did not trigger the
protections of Code § 19.2-294. The Court concluded that double
jeopardy protections only applied to criminal proceedings and
that the administrative revocation procedure was not a criminal
proceeding. See id. at 130-31, 476 S.E.2d at 183.
The first revocation was an administrative proceeding. A
subsequent criminal trial for driving under the influence could
not be a subsequent conviction that would come within the bar of
Code § 19.2-294 or the Double Jeopardy Clause of the Fifth
Amendment. Hudson v. United States, 118 S. Ct. 488 (1997), held
that the Fifth Amendment did not bar a criminal prosecution that
followed administrative proceedings which were civil, not
criminal in nature. The case overruled United States v. Halper,
490 U.S. 435 (1989), as unworkable.
Though the defendant acknowledges the magistrate's license
suspension was a civil proceeding, he argues that the suspension
was a conviction for purposes of Code § 19.2-294. He cites the
definition of "conviction" in Code § 46.2-341.4 that specifies
the term includes administrative revocations within its meaning.
- 2 -
However, the section makes clear that the definition is limited
to Article 6.1 of Title 46.2, the Virginia Commercial Driver's
License Act.
The defendant also argues that the administrative and
criminal suspensions were separate and distinct punitive
proceedings arising out of the same conduct. However, parallel
administrative and criminal proceedings are not separate judicial
proceedings. An administrative suspension "is not a judgment by
a court of competent jurisdiciton." Simmons v. Commonwealth, 252
Va. 118, 120-21, 475 S.E.2d 806, 807 (1996). See Wild v.
Commonwealth, 18 Va. App. 716, 446 S.E.2d 626 (1994) (punishment
of same conduct, first at Department of Corrections
administrative disciplinary hearing and then subsequent judicial
proceeding, upheld).
Finally, the defendant argues that the seven-day
administrative suspension was excessive because he had a
commercial driver's license. Code §§ 46.2-341.26:2(D) and
46.2-341.26:3(C) prescribe a twenty-four hour suspension of a
driver's commercial license. If the magistrate erred, the
defendant's recourse was to appeal that action not to assert it
as a bar to the subsequent criminal charge.
Concluding that the trial court did not err, we affirm.
Affirmed.
- 3 -