Double Jeopardy and Double Punishment in DUI Cases
Posted by Lawrence Taylor on June 20th, 2010When 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 of .08%, in most states administered by its department of motor vehicles, and (2) the criminal prosecution for the two separate offenses of driving under the influence of alcohol (DUI, DWI or OUI) and driving with .08%, which takes place in the courts.
In other words, even though he only committed one act, the individual is being prosecuted for two different crimes: DUI and driving with a .08% BAC. He can even be convicted of both offenses (although he can only be punished for one). How is this possible?
It gets worse….
The driver has already been punished for driving over .08% (or for refusing to be tested) 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, DUI schools, ignition interlock devices, probation — and a restricted, suspended or revoked license.
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 what I’ve been calling for years "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 awfew years, 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 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 committing two different crimes: he was being punished by two different state agencies for the same crime: driving with .08% BAC (or refusing to be tested). But there had to be some way to get around that pesky Constitution….
The courts could not agree. Some said that there was no double jeopardy or multiple punishment since the DMV license forfeiture 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.”
lawrence, i’m wondering how long before this charge-piling is merged with the similar scam of “conspiracy”. the driver “conspired” with the bartender, grocery store cashier, blah blah blah.
Salty, what do you mean by “How long before”? Need Goosebumps? Try googling “Aiding and abetting DUI, or accessory to DUI. Take my advice and do it long before lunch…
i agree also how can the dmv punish you after the courts have punished you and you have completed it? they cal it hard time in fl. its been finishing probation
and the yr between starting dmv supervision. th3e dmv punishment is longer and worse than the courts.
i don’t how they can mandate 12 step meeting attendance.
3 yrs of supervision is cruel punishment and money making for the
program who runs it.
and having to right about 12 meeting topics a month is really a bit much.
all this for a restricted license.
plus an apt every month than every other month.
being pretty much home bound for over 5 yrs for a non felony is a bit much.
i have had more punishment than most convicted of serious crimes.
its been over 5 yrs since my questionable arrest.
Ok, so what if you are charged with two DUI's in two different cities during the same incident, you just crossed a city line, and now both cities are trying to charge you with a DUI. To me this seems wrong when only one city actually oulled him over and could prove he was drinking. The other city was not involved in the arrest just in the pursuit, and would that not lack burden of prrof in the other city that never pulled him over but is charging him with multiple driving offenses within the city.