Another “DUI Exception to the Constitution”: Double Jeopardy
Posted by Lawrence Taylor on June 8th, 2009When a person is arrested for DUI, his driver’s license is confiscated by the arresting officer and he is given a notice of "administrative suspension". He is also given a citation to appear in court to face criminal drunk driving charges.
These are usually two very different procedures: (1) the administrative suspension for driving with blood-alcohol concentration (BAC) of .08%, in most states administered by its department of motor vehicles, and (2) the criminal prosecution which takes place in the courts. The criminal prosecution will be for driving under the influence of alcohol (DUI) and driving with .08% BAC.
In other words, even though he only drove once, the individual is being prosecuted for two different crimes: DUI and driving with a .08% BAC. He can even be convicted of both offenses. How is this possible?
It gets worse….
The driver has already been punished for driving over .08% by having his license suspended by the state’s motor vehicle agency. If he is later convicted in the state’s criminal court of driving over .08% (and/or driving under the influence), he will be punished again. The sentence may involve jail, fines, ignition interlock devices, DUI schools, probation — and another license suspension or revocation.
How many times can the state punish a person for a single crime? Our Constitution says only once. The Fifth Amendment specifically provides that no person shall "be subject for the same offense to be twice put in jeopardy of life and limb". So is this another example of "The DUI exception to the Constitution"?
Let’s first take the question of charging defendants with both DUI and .08%. The courts in the different states wrestled with this one for awhile, rendering conflicting decisions, but eventually came to the conclusion that the driver actually commited two different crimes. As an Indiana court reasoned, "the test to be applied to determine whether there are two different offenses or only one, is whether each provision requires proof of a fact which the other does not." Sering v. State, 488 N.E.2d 369 (1986).
The .08 statute required proof of blood-alcohol concentration; although blood-alcohol evidence was used to prove the DUI crime as well (a person is presumed to be under the influence if his BAC is .08% or higher), the offense could be proved without it. So it’s ok to prosecute and convict him for both crimes.
Hmm… Well, what about punishing the driver by immediately suspending his license when he’s arrested — and then punishing him again in court – in fact, punishing him in court with a sentence that may include another suspension?
This one caused the courts a bit more trouble. This wasn’t a case where the person was theoretically committing two different crimes: he was being punished by two different state agencies for the same crime: driving with .08% BAC. But there had to be some way to get around the Constitution….
The courts could not agree. Some said that there was no double jeopardy since the DMV license foreiture was not really a "punishment" but only a "civil sanction". Others took the position that this was, in fact, a violation of the Fifth Amendment, and they relied upon a U.S. Supreme Court decision (U.S. v. Halper, 490 U.S. 435; 1989) which involved civil forfeitures and criminal punishments for selling marijuana. In that case the Court held that a "civil sanction" was actually a punishment — and thus double jeopardy — if (1) the "clear focus of (the statute) is on the culpability of the individual", and (2) the legislature "understood these provisions as serving to deter and punish". The Court added that "the historical understanding of forfeiture as punishment" weighs heavily in favor of the conclusion that forfeiture continues to serve punitive purposes.
Well, relying upon the Supreme Court’s ruling, an alarming number of courts around the country were throwing out criminal DUI charges on double jeopardy grounds. This, of course, infuriated MADD, legislators, prosecutors, law enforcement and pretty much everyone else who did not take the Constitution too seriously. But rescue arrived from a more conservative U.S. Supreme Court.
In 1997, Chief Justice Rehnquist revisited the forfeiture-punishment problem and did something that is rarely ever done: he criticized and flatly rejected the earlier Supreme Court’s ruling:
"We believe that Halper’s deviation from longstanding double jeopardy principles was ill-considered….Halper’s test for determining whether a particular sanction is "punitive", and thus subject to the strictures of the Double Jeopardy Clause, has proved unworkable". Hudson v. U.S., 592 U.S. 93 (1997).
Since then, the courts have had little trouble finding that a police officer who confiscates and suspends the driver’s license of a drunk driving suspect is merely administering a "civil sanction", not punishment….and that when he is later convicted in court and is fined, jailed and has his license suspended again, well that’s not really double jeopardy. It just looks an awful lot like it.
As Humpty Dumpty said to Alice in Through the Looking Glass:
“When I use a word”, Humpty Dumpty said, in a rather scornful tone, “it means just what I choose it to mean — neither more nor less.”
“The question is”, said Alice,”whether you can make words mean so many different things.”
“The question is”, said Humpty Dumpty, “which is to be master — that’s all.”
Hi Lawrence,
In some states (at least Michigan, Virginia and Texas), the legislatures have recently created state fees called Driver Responsibility Surcharges which apply to DUI, DWLS/DWLI, no insurance and the accumulation of various moving violations.
I understand these fees are a “civil sanction”, much like the suspension and therefore, would not be considered double jeopardy.
However, it is obvious these fees were established as a means of taxation. In some states, the money goes into a general fund. Here in Texas, half of what is collected goes to fund trauma centers (I see the connect there), but the other half goes to fund some future Trans-Texas Corridor project which just happened to be legislated in the same year as the fees.
This has gone on for the past four years and I believe the collection for the fees has only been about 50% or maybe a lot less. It has also contributed to the number of unlicensed and therefore, uninsured drivers, to the detriment of everyone.
In the session last month, the legislature developed a program which would give a judge the ability to reduce or waive the fee in consideration of indigency or student status on cases sentenced after 9.1.09. Thusfar, there have been no provisions for those factors.
Do you think a class action lawsuit would be a remedy for those that are already caught up in this system? Or would the state simply contend this was punishment rather than taxation?
It should also be noted. If you get a DUI or even a wet reckless you have a high likely hood your current insurance agent will have an underwriter review you (whether the agent wants it or not) that underwriter will see multiple lines of offense on your record. When they see these and the different dates – they’ll list each as their own individual crime (whether proven guilty or not). After that they’ll drop you. Now, if you have been proven guilty and had to do SR22 you no longer can prove your insurance (or liability) as they dropped you. You will then have to get a new insurer at probably double the cost you previously had (even if you didn’t get in an accident).
There are a lot of additional costs to getting a DUI than just what the justice system will punish you for or even the DMV.
[…] I say the Constitution is dead because it is applied not as intended. Not only is it not applied the way it was intended, shielding us from an over-intrusive government, but it was intended to be applied all the time. Now, it is applied rarely. Terrorism? No need for constitutional protections of any kind. Drugs? No Fourth Amendment. DUI? The DMV isn’t part of the government subject to constitutional limitations. […]
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