Krall v. Commonwealth, Department of Transportation, Bureau of Driver Licensing

SMITH, Judge.

Dennis G. Krall (Krall) appeals the August 8, 1995 order of the Court of Common Pleas of Bucks County denying his appeal and reinstating the suspension of his operating privileges for one year. The questions presented on appeal are whether an operating privilege is a constitutionally protected right; whether the suspension of Krall’s operating privilege is in violation of the Fifth Amendment to the United States Constitution, where accomplished in a civil proceeding subsequent to but based upon a prior criminal conviction for driving under the influence; and whether a one-year suspension of operating privileges, based upon a conviction for driving under the influence, is purely remedial or embodies some element of punishment.

In 1994, Krall pleaded guilty to driving under the influence (DUI), was sentenced to 48 hours of imprisonment and was fined. As a result of this conviction, the Pennsylvania Department of Transportation, Bureau of Driver’s Licensing (DOT), issued an official notice suspending Krall’s operating privileges for one year pursuant to Section 1532(b)(3) of the Vehicle Code, as amended, 75 Pa.C.S. § 1532(b)(3).¹ Krall appealed to the Court of Common Pleas, which affirmed the suspension of his operating privileges. Krall then appealed to this Court, whose scope of review is limited to determining whether the trial court’s findings of fact are supported by substantial evidence, whether the trial court committed an error of law or whether the trial court violated Krall’s constitutional rights. Dardozzi v. Department of Transportation, Bureau of Driver Licensing, 660 A.2d 205 (Pa.Cmwlth.1995).

First, Krall contends that an operating privilege is a property right protected by the United States and Pennsylvania Constitutions. This Court disagrees. Krall incorrectly cites Mackey v. Montrym, 443 U.S. 1, 99 S.Ct. 2612, 61 L.Ed.2d 321 (1979), and Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971), to support his contention. In Mackey and Bell, the Supreme Court acknowledged that a licensee has an important interest in retaining his or her operating privilege, which should be afforded the protection of procedural due process; however, the Court did not characterize such an interest as a fundamental or a property right.

In addition, Krall’s characterization of an operating privilege as a property right is not supported by statutory language. The statutory definition of “operating privilege” states that it is “[t]he privilege to apply for and obtain a license ... but not a contract, property right or civil right.” Section 102 of the Vehicle Code, as amended, 75 Pa.C.S. § 102. Although Pennsylvania courts have recognized the value of an operating privilege and have stated that a driver must be afforded due process protection before the Commonwealth may revoke or suspend such privileges, the courts have expressly refused to characterize an operating privilege as a fundamental or a property right. “Operating a motor vehicle upon a Commonwealth highway is not a property right but a ‘privilege’.” Plowman v. Department of Transportation, Bureau of Driver Licensing, 535 Pa. 314, 317, 635 A.2d 124, 126 (1993); see also Sheakley v. Department of Transportation, 99 Pa.Cmwlth. 328, 513 A.2d 551 (1986), appeal denied, 515 Pa. 586, 527 A.2d 546 (1987). This Court accordingly concludes that Krall’s contention is without merit.

Next, Krall contends that the suspension of his operating privilege following his criminal conviction for DUI violates the Double Jeopardy Clauses of the United States and Pennsylvania Constitutions.² The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution states 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 multiple prosecutions for the same offense after an acquittal or conviction and precludes the imposition of multiple punishments for the same offense. Generally, civil sanctions imposed by an administrative agency do not trigger double jeopardy protection.³ Sweeny v. State Board of Funeral Directors, 666 A.2d 1137 (Pa.Cmwlth.1995). However, a civil sanction may constitute punishment for double jeopardy purposes if the sanction “may not fairly be characterized as remedial, but only as a deterrent or retribution.” United States v. Halper, 490 U.S. 435, 449, 109 S.Ct. 1892, 1902, 104 L.Ed.2d 487 (1989); see also United States v. Ursery, — U.S. -, 116 S.Ct. 1539, 134 L.Ed.2d 644 (1996).

In Halper, the Supreme Court held that a civil penalty of a large fine for violations of the False Claims Act constituted punishment for purposes of double jeopardy because the amount of the fine was unrelated to the damages suffered by the government and was designed to punish violators. Krall argues that because one of the purposes of suspending the operating privileges of drivers convicted of DUI is to deter future DUI offenses, the suspension of his operating privilege, although a civil penalty, constitutes punishment for double jeopardy purposes pursuant to the Supreme Court’s holding in Halper.

Initially, this Court must emphasize that Krall has incorrectly interpreted Halper. Krall cites Halper for the proposition that if the purposes of a sanction are not solely remedial, then it constitutes punishment for the purposes of double jeopardy. In Halper, however, the Supreme Court stated that a civil sanction may constitute punishment for double jeopardy purposes if the sanction “may not fairly be characterized as remedial, but only as a deterrent or retribution.” Id. at 449, 109 S.Ct. at 1902 (emphasis added). Thus the mere fact that a sanction may indirectly deter future criminal activity does not preclude a determination that the sanction is remedial. “[E]ven remedial sanctions carry the sting of punishment.” Id. at 447 n. 7, 109 S.Ct. at 1901 n. 7.

Rather, Halper requires this Court to determine the purposes actually served by the sanction in question. This Court has previously determined that “driver revocation proceedings are remedial sanctions and are civil in nature, designed to protect the public from unsafe drivers.” Drogowski v. Commonwealth 94 Pa.Cmwlth. 205, 503 A.2d 104, 107 (1986), appeal denied, 516 Pa. 619, 531 A.2d 1120 (1987)(citing Zanotto v. Department of Transportation, 83 Pa.Cmwlth. 69, 475 A.2d 1375 (1984)). Consequently, this Court concludes that the suspension of Krall’s operating privilege following his criminal conviction for DUI does not violate the Double Jeopardy Clause of the United States Constitution.

Krall argues that this Court should not rely on its holdings in Drogowski and Zanot-to because both cases were decided prior to Halper. Upon further research, this Court has found that other courts, applying the principles of Halper, have rejected the contention that the suspension of operating privileges constitutes punishment for the purposes of double jeopardy. See Davidson v. MacKinnon, 656 So.2d 223 (Fla.Dist.Ct.App. 1995), review denied, 662 So.2d 931 (Fla. 1995); State v. Funke, 531 N.W.2d 124 (Iowa 1995); State v. Uncapher, 70 Ohio Misc.2d 4, 650 N.E.2d 195 (Mun.Ct.1995); Johnson v. State, 95 Md.App. 561, 622 A.2d 199 (1993); Freeman v. State, 611 So.2d 1260 (Fla.Dist.Ct.App.1992), review denied, 623 So.2d 493 (Fla.1993), cert. denied sub nom. Lindemann v. Florida, 510 U.S. 957, 114 S.Ct. 415, 126 L.Ed.2d 361 (1993); Butler v. Department of Public Safety and Corrections, 609 So.2d 790 (La.1992); State v. Strong, 158 Vt. 56, 605 A.2d 510 (1992); State v. Nichols, 169 Ariz. 409, 819 P.2d 995 (App.1991); Ellis v. Pierce, 230 Cal.App.3d 1557, 282 Cal.Rptr. 93 (1991).

Although Krall argues that a more appropriate remedial sanction would be to prohibit individuals convicted of DUI from consuming alcohol, this Court concludes that the suspension of Krall’s operating privilege effectively advances the Commonwealth’s legitimate interest in protecting the public from unsafe drivers. Based upon the foregoing discussion, this Court affirms the order of the trial court denying Krall’s appeal and reinstating the suspension of his operating privileges for one year.

ORDER

AND NOW, this 21st day of August, 1996, the order of the Court of Common Pleas of Bucks County is affirmed.

1 . The relevant portion of Section 1532(b)(3) states:

The department shall suspend the operating privilege of any driver for 12 months upon receiving a certified record of the driver's conviction of section 3731 (relating to driving under influence of alcohol or controlled substance). ...

2 . Although Krall contends that the suspension of his operating privileges also violates Article I, § 10 of the Pennsylvania Constitution, the Supreme Court has concluded that the Pennsylvania Constitution provides no greater protection than the Double Jeopardy Clause of the Fifth Amendment. Commonwealth v. Tabb, 491 Pa. 372, 421 A.2d 183 (1980), cert. denied, 450 U.S. 1000, 101 S.Ct. 1708, 68 L.Ed.2d 202 (1981). Thus this Court will only address Krall's federal double jeopardy claims. The Double Jeopardy Clause was made applicable to the States through the Due Process Clause of the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).

3 . This Court recently concluded that a conviction for DUI and operating privilege suspension do not constitute separate proceedings for the purposes of double jeopardy. See Martin v. Department of Transportation, Bureau of Driver Licensing, 672 A.2d 397 (Pa.Cmwlth. 1996) (license suspensions flow automatically from criminal convictions and although conviction and suspension did not occur at same time, they clearly resulted from single undertaking).