The Constitutional Protection Against Double Jeopardy — Except in DUI Cases

Posted by Lawrence Taylor on October 7th, 2013

When 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.”

  • A striking fact is that a DWI in most states is still a misdemeanor, yet the State utilizes the arguable loopholes in Double Jeopardy jurisprudence to be aggressive on non-felonies. Thus, we should all be afraid that legislators will catch wind of this trend and start enacting similar, repeat-punishment schemes for more serious offenses.

  • Tim

    A few years ago, my DWI went first before a 6 member jury trial and I was found NOT guilty. A week later, I went before a judge for the implied consent hearing and the judge upheld the revocation! So I still have a DWI on my driving record and still had to go through the complicated and expensive process of getting my drivers license back. Yes, this is Double Jeopardy! Very unconstitutional!

  • DUI convictions/arrests/investigations are constantly being scrutinized in courts. It seems more and more the prosecution is getting ruled in favor of. Great post.

  • Montana v. Kurth Ranch Defendant was both tried for selling marijuana — and then charged civilly for a failure to pay a tax on that marijuana. The Supreme Court held that it was a violation of the Constitutional prohibition against Double Jeopardy: The fact that one proceeding was criminal and the other civil did not matter, the Court said, as long as they both involved the same offense and both were intended as punishment. Note: This case has repeatedly been cited in DUI cases as authority for the proposition that the State cannot both criminally prosecute for driving with over .08% blood alcohol and civilly suspend the individual’s driver’s license for the same offense. Although there have been federal court decisions taking this position, to date state courts have not accepted this reasoning and the U.S. Supreme Court has not addressed the issue in a drunk driving context. See also, U.S. v. Halper (1989), 490 U.S. 435.