« Drunk Driving and Double Jeopardy

August 6, 2009

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Whenever a police officer arrest a person for DUI, he takes away his driver’s license and he give him a notice of "administrative suspension". He also gives him a citation to appear in court in order to face criminal drunk driving charges.

justice

Usually these are two very different procedures:

the administrative suspension that is held for driving with blood-alcohol of .08%, in most states this is administered by its department of motor vehicles, and
the criminal prosecution for the two separate offenses of driving under the influence of alcohol (DUI) and driving with .08%, and this takes place in the courts.

Explaining this in other words, even though the person who is convicted drove only once, but he is being prosecuted for two different crimes: DUI and driving with a .08% BAC. The possibility is that he can even be convicted of both offenses (although he can only be punished for one). How is that possible?

The situation gets worse….

When the driver has already been punished for driving over .08%. He is having a license suspended by the state’s motor vehicle agency. He will be punished again, if he is later convicted in the state’s criminal court of driving over .08% (and/or driving under the influence). The punishment may involve jail, fines, DUI schools, probation and a restricted, suspended or revoked license.

How many times a person can be punished by the state punish for a single crime? Only once as said by our constitution. 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 discuss the question of charging defendants with both DUI and .08%. The courts in the different states fought with this one for awhile, but eventually they concluded that the driver actually has committed two different crimes.

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proof of blood-alcohol concentration is required for the .08 statute; although the DUI crime is proved by blood-alcohol evidence as well (a person is believed to be under the influence if his BAC is .08% or higher), the offense could be proved without it. So the person can be prosecuted and convicted for both crimes, so long as you don’t punish him for both.

Well, what about giving the punish to a driver by suspending his license when he’s arrested and then again punishing him in court? In fact, punishing him in court with a sentence that might also include another suspension? This is the reason which makes the courts a bit more trouble. This wasn’t a case where the person is presumed that he was committing two different crimes: for the same crime he was being punished by two different state agencies: driving with .08% BAC. But is there any way to get around the Constitution….

It is not agree by the courts. It is said by some people that there was no double jeopardy since the DMV license forfeiture was just a "civil sanction" and not really a "punishment". Others argue 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) in which there was the involvement of civil forfeitures and criminal punishments for selling marijuana. In that case it has been said by the Court that actually a "civil sanction" was a punishment and thus it is a double jeopardy if

the "clear focus of (the statute) is on the presumption that the individual is guilty", and
it is understood by the legislature that these provisions as serving to deter and punish.

And moreover the Court added that "the historical understanding of forfeiture as punishment" push towards the conclusion that forfeiture continues to serve punitive purposes.

Well, an alarming number of courts around the country relying upon the Supreme Court’s ruling, were throwing out criminal DUI charges on the basis of double jeopardy grounds. This, of course, become the cause of anger of MADD, legislators, prosecutors, law enforcement and pretty much everyone else by whom the Constitution is not taken too seriously. But from a more conservative U.S. Supreme Court this has been rescued. In 1997, the forfeiture-punishment problem was revisited by the Chief Justice Rehnquist and then he did something that is rarely ever done: he criticized and simply 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 (1 997).

Since then, the courts find it a little difficult that a police officer by whom the driver’s license of a drunk driving suspect is confiscated and suspended is merely administering a "civil sanction", not punishment….and that when he is later convicted in court and is punished as charging fine, sending him to jail and suspending his license again, well that’s not really double jeopardy.It just look like that.

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