DUI Double Jeopardy and Multiple Punishment

Posted by Lawrence Taylor on January 30th, 2008

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 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 or DWI) and driving with .08%,  which takes place in the courts.

In other words, even though he only drove once, the individual is being prosecuted in court 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 by another state agency (the Department of Motor Vehicles) for driving over .08% by having his license suspended. 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 once again. The sentence may involve jail, fines, DUI schools, community work, probation — and a restricted, suspended or revoked license.

How many times can the state prosecute 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, 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 usually 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 – so long as you don’t punish him for both. 

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 license suspension?

This one caused the judges 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. 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 or double punishment 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 1989 U.S. Supreme Court decision (U.S. v. Halper, 490 U.S. 435) 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, insurance companies 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 long-standing 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 or multiple punishment. It just looks an awful lot like it.

From Lewis Carroll, 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.”

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  • Prof. Challenger

    Mr. Taylor,

    You write:

    “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 once again. The sentence may involve jail, fines, DUI schools, community work, probation — and a restricted, suspended or revoked license.”

    I understood that in California at least when you beat the DMV you kept your license as long as you weren’t convicted on or plead to the (b) count (.08 or higher). Do I have it wrong?

    Prof.

  • dwiattorney

    I believe that you are right, Prof. You do keep your liscense under those circumstances.

    Roger

  • Stella

    I always wonder how it is that they are able to punish *at all* (i.e. confiscating the license and/or license plate) before the accused has been convicted.

  • US CITIZEN

    LET IT BE FURTHER KNOWN DOUBLE JEOPARDY BECOMES TRIPLE JEOPARDY IN FLORIDA THAT PEOPLE WITH FLORIDA DL WILL BE PERMANENTLY REVOKED FOR HAVING HAD DUI CONVICTIONS IN OR OUT THIS STATE OF 4 OR MORE AND BECOME RETROACTIVE FROM ANY PARTICIPATING STATE ON THE NATIONAL REGISTRY OF THE STATE OF FLORIDA EVEN IF YOU NEVER HAD A TICKET IN FLORIDA & YES THERE ARE MORE THAN ONE NATIONAL REGISTRY FOR REPORTING BUT NOT ALL REPORT TO FLORIDA, THUS MAKING IT PERMANENT AND IRREVOKABLE UNTIL AFTER 5 YEARS THE BILL WAS CHANGED IN 2011 LOOK IT UP. IF YOU HAVE MORE THAN 4 YOU WILL HAVE TO REDUCE THIS AMOUNT TO HAVE ANY PRAYER TO BELOW 4. NO MATTER WHAT THEY WONT BUDGE ON OVER 4-5. GET THEM REMOVED BY SET ASIDE OR NEW RULING OR EXPUNGEMENT.
    GOOD LUCK
    NEVER GO TO FLORIDA
    THEY WILL ROBB YOU OF YOUR MOST PRECIOUS GIFTS
    THE RIGHT TO LIBERTY AND FREEDOM OR THE RIGHT TO WORK IN THE UNITED STATES OF AMERICA CONSTITUTIONAL RIGHTS. IMPOSING DOUBLE JEOPARDY PUNISHMENTS ON YOU IS UNCONSTITUTIONAL… FLEE FROM THEM LIKE THE PLEAQUE !!!!!!!
    I BEGG OF YOU DO NOT LOOK BACK JUST LEAVE IMMEDIATELY REMOVE ALL YOUR FUNDS FROM THIS STATE AND FORGET THEM ONCE YOU HAVE YOUR FREEDOM OTHERWISE OBTAINED AND SECURED IN ALTERNATIVE STATE IN THE USA. FLORIDA IS ON THE TAKE !!!!

  • Washington

    I live in Washington State and had my first DUI. I followed the appeal process with DMV , it took 1 month and I failed. Then I applied for a interlock license being indignant , sent in my 100.00 fee, and it took a additional month to set up. I was approved and had the interlock for 10 months. I just got it removed because I’m eligible now to get my license back, its been 12 months, and my interlock license expired at the same time. So I paid 195.00 reinstatement fee’s with DMV, took the test and I’m ready for the drive test. I’m still not charged with anything yet with the courts and its been over a year. I called DMV and they told me if I’m charged I will get suspended again just after I get my licence back and I will need to have the interlock for 2 more months, for a total of 12 months, the same as my suspension time. What they fail to tell you is that I will need a letter of compliance from DMV and in order to get that I will need the interlock for a additional month for a total of 3 months . The extra month is so they can record the last month on the interlock system to look for any interlock failed tests. The interlock Co. told me this when I was having the interlock removed. I didn’t need a compliance letter because I was not charged yet. So I will most likely loose my license again within a few months from now. I will have to wait around for one month without driving to prove indignant and pay the 100.00. Then pay 75.00 to have the interlock installed back in. Wait for 3 months, have it removed and wait 1 week for the compliance letter from DMV. Then Run down to DMV and pay “again” 175.00 to get my licence back. I don’t need to take the written or the drive test again, but its interesting how much they stall so that you have to suffer and repeat the whole process again with the interlock and DMV fee’s. If they would only suspend it for a year and 3 months you wouldn’t have to waste time and money installing the interlock again. People who aren’t indigent have to pay 250.00 for install and 100’s for removal. The interlock Co. told me that on several occasions DMV will not inform anyone of this compliance letter and its resulted in many people having to pay big money to have it placed back in. The interlock Co. has been telling people to call DMV back several times to make sure you don’t need this letter before you have the device removed. but when your year suspension is up your interlock license expires too, even if its not the complete 12 months required by the court to have the interlock in your car. People are punished more than is realized by both the court and DMV. all to make as much money as possible. Withholding information, stalling, fee’s, and catch 22’s are all in favor of our nice government.