Brame v. Commonwealth

Present: Carrico, C.J., Compton, Stephenson, Hassell, and Keenan,
JJ., and Poff, Senior Justice, and Cochran, Retired Justice

GEORGE BRAME
OPINION BY
v. Record No. 952340 CHIEF JUSTICE HARRY L. CARRICO
September 13, 1996
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Walter W. Stout, III, Judge

This appeal presents two questions, (1) whether the judicial

suspension of a person's operator's license for one year based

upon his refusal to submit to a blood or breath test when he has

already suffered a seven-day administrative suspension for the

same refusal violates the constitutional prohibition against

double jeopardy, and (2) whether application of the seven-day

administrative suspension statute to the defendant in this case

results in a denial of due process. Finding that the trial court

did not err in answering both these questions in the negative, we

will affirm.
The seven-day administrative suspension of the defendant's

license was made pursuant to Code § 46.2-391.2(A). This section

provides in pertinent part that if a person refuses to submit to a

breath test in violation of Code § 18.2-268.3, upon issuance of a

warrant for driving while intoxicated in violation of Code § 18.2-

266 or for refusing to take a blood or breath test in violation of

Code § 18.2-268.3, his operator's license shall be suspended

immediately for seven days.

Code § 46.2-391.2(C) provides that any person whose

operator's license has been suspended under Code § 46.2-391.2(A)

may, during the period of the suspension, request the general
district court where the arrest was made to review the suspension,

and the request is given precedence over all other matters on the

docket. If the person proves by a preponderance of the evidence

that the arresting officer did not have probable cause for the

arrest or that the magistrate did not have probable cause to issue

the warrant, the court shall rescind the suspension. Otherwise,

the court shall affirm the suspension.

Code § 18.2-268.3, referred to in Code § 46.2-391.2(A),

prescribes the procedures to be followed if a person, after having

been arrested for driving under the influence, refuses to permit

blood or breath samples to be taken for chemical tests to

determine the alcohol or drug content of his blood. Code § 18.2-

268.4 provides that if a person is found guilty of violating Code

§ 18.2-268.3, the court shall suspend his privilege to drive for a

period of one year, in addition to the seven-day suspension

imposed under Code § 46.2-391.2.
The record shows that on February 13, 1995, C. D. Preuss, a

Virginia Commonwealth University police officer, arrested the

defendant, George Brame, in the City of Richmond and charged him

in a warrant issued by a magistrate with driving under the

influence of alcohol in violation of Code § 18.2-266. When Brame

refused, both at the site of the arrest and at the police station,

to take a blood or breath test, Preuss also charged him in a

warrant issued by the magistrate with unreasonably refusing to

take a blood or breath test, and his license was administratively

suspended for seven days pursuant to Code § 46.2-391.2(A).

The next day, Brame filed in general district court a
petition under Code § 46.2-391.2(C) for review of the seven-day

suspension of his license. The court denied this petition, thus

affirming the suspension. 1

The warrants charging Brame with driving under the influence

and with unreasonably refusing to take a blood or breath test were

later tried in general district court. He was found guilty of

both charges, and his license was suspended for a period of one

year on the charge of unreasonably refusing to take a blood or

breath test. On a de novo appeal to circuit court, Brame was

found not guilty of driving under the influence but guilty of

unreasonably refusing to take a blood or breath test, and his

license was again suspended for a period of one year.
Because a charge of unreasonably refusing to submit to a

blood or breath test is not criminal but administrative and civil

in nature, an appeal lies directly to this Court. Commonwealth v.

Rafferty, 241 Va. 319, 323-24, 402 S.E.2d 17, 20 (1991). Upon

Brame's petition, we awarded him an appeal.

DOUBLE JEOPARDY

Citing United States v. Halper, 490 U.S. 435 (1989), Brame
points out that "the Double Jeopardy Clause 'protects against

three distinct abuses: a second prosecution for the same offense

after acquittal; a second prosecution for the same offense after

conviction; and multiple punishments for the same offense.'" Id.

at 440. Brame then states that "[a]s was the case in Halper, it

1
In a brief filed in the trial court, Brame stated that
the general district court conducted a hearing on his
petition the same day it was filed.
is the third of these protections [,i.e., the prohibition against

multiple punishments,] which is at issue here."

Brame also points out that Halper establishes a three-pronged

analysis for determining whether a person has suffered

impermissible multiple punishments. Under this analysis, Brame

says, a person suffers impermissible multiple punishments if the

two sanctions result from the same offense, the second sanction is

imposed in a separate proceeding, and both sanctions constitute

punishment in the double jeopardy sense.
For the purposes of this appeal, we will assume, without

deciding, that Brame's two sanctions resulted from the same

incident and that the subsequent sanction was imposed in a

separate proceeding. This leaves for decision only the question

whether the suspension of Brame's operator's license for refusal

to submit to a blood or breath test constitutes punishment for

double jeopardy purposes.

Brame relies heavily upon Halper to support his contention

that his license suspension does constitute punishment. There,

the defendant was convicted of submitting 65 false claims for

reimbursement of Medicare benefits and was sentenced to

imprisonment for two years and to pay a fine of $5,000. The

Government then brought an action under the civil False Claims

Act, in which the defendant could have been subjected to a civil

penalty of $2,000 for each of the 65 claims for a total of

$130,000, plus twice the amount of the Government's actual damages

of $585 and costs of the civil action.

The district court found that the authorized recovery of more
than $130,000 bore no rational relation to the Government's actual

loss plus its costs in investigating and prosecuting the

defendant's false claims and that imposition of the full amount

would violate the Double Jeopardy Clause by punishing the

defendant twice for the same conduct. To avoid this violation,

the district court entered judgment in favor of the Government for

only twice the amount of its actual damages of $585 plus the costs

of the civil action.
The Government appealed directly to the United States Supreme

Court, which noted probable jurisdiction to decide the question

"whether and under what circumstances a civil penalty may

constitute 'punishment' for the purposes of double jeopardy

analysis." Id. at 436. Previously, the Court had given deference

to the labels Congress placed upon statutes and had classified as

nonpunitive those sanctions labelled as civil. Helvering v.

Mitchell, 303 U.S. 391, 404-05 (1938). In Halper, however, the

Court stated that "the labels 'criminal' and 'civil' are not of

paramount importance," 490 U.S. at 447, and, for the first time,

held that the imposition of a civil sanction following a criminal

conviction and sentence could implicate the Double Jeopardy

Clause. Id. at 448-49.

The Court observed that "in a particular case a civil penalty

. . . may be so extreme and so divorced from the Government's

damages and expenses as to constitute punishment." Id. at 442.

The Court stated it was announcing "a rule for the rare case . . .

such as the one before [it]," a rule providing that a civil

penalty must bear a "rational relation to the goal of compensating
the Government for its loss" else the penalty will constitute an

impermissible second punishment. Id. at 449-50.

The Court stated it agreed "with the District Court that the

disparity between its approximation of the Government's costs and

Halper's $130,000 liability is sufficiently disproportionate that

the sanction constitutes a second punishment in violation of

double jeopardy." Id. at 452. However, the Court remanded the

case "to permit the Government to demonstrate that the District

Court's assessment of its injuries was erroneous." Id.

Brame asserts that the Supreme Court held in Halper that "any

civil sanction which is not exclusively 'remedial' will implicate

the protection of the double jeopardy clause." However, we do not

find this precise language in Halper. While there is a statement

in the Halper opinion that may give Brame comfort, 2 that statement

is inconsistent with the specific holding of the Court, and the

language of the holding belies Brame's suggestion that a civil

sanction must be exclusively remedial to pass constitutional

muster. This is the way the Court phrased its holding:
We . . . hold that under the Double Jeopardy Clause a
defendant who already has been punished in a criminal
prosecution may not be subjected to an additional civil
sanction to the extent that the second sanction may not
fairly be characterized as remedial, but only as a
deterrent or retribution.

Id. at 448-49 (emphasis added).

2
"[A] civil sanction that cannot fairly be said solely
to serve a remedial purpose, but rather can only be
explained as also serving either retributive or deterrent
purposes, is punishment, as we have come to understand the
term." 490 U.S. at 448. This statement was criticized
later by the Supreme Court in United States v. Ursery,
infra.
 We read this language to mean that if a given sanction may be

characterized only as a deterrent or retribution, it runs afoul of

the Double Jeopardy Clause, but if it may fairly be characterized

as remedial, even though it incidentally serves the purposes of

deterrence and retribution, it does not offend the Clause. And we

think a decision of the Supreme Court subsequent to Halper makes

clear that a particular sanction need not be exclusively remedial

to avoid violating the Double Jeopardy Clause.
In United States v. Ursery, ___ U.S. ___, 116 S.Ct. 2135

(1996), the Supreme Court considered the question whether the

Double Jeopardy Clause prohibits the Government from both

punishing a defendant for a criminal offense and forfeiting his

property for the same offense in a separate proceeding. ___ U.S.

at ___, 116 S.Ct. at 2138. The Court answered the question in the

negative. In the course of his opinion for the majority, Chief

Justice Rehnquist responded to an assertion made by Justice

Stevens in dissent that Halper had established a general rule

under which a civil sanction must solely serve a remedial purpose

to avoid violating the Double Jeopardy Clause. The Chief Justice

wrote:
Whether a particular sanction "cannot fairly be said
solely to serve a remedial purpose" is an inquiry
radically different from that we have traditionally
employed in order to determine whether, as a categorical
matter, a civil sanction is subject to the Double
Jeopardy Clause. Yet nowhere in Halper does the Court
purport to make such a sweeping change in the law,
instead emphasizing repeatedly the narrow scope of its
decision. . . . If the "general rule" of Justice
STEVENS were applied literally, then virtually every
sanction would be declared to be a punishment: it is
hard to imagine a sanction that has no punitive aspect
whatsoever. Justice STEVENS' interpretation of Halper
is both contrary to the decision itself and would create
 an unworkable rule inconsistent with well-established
precedent.

___ U.S. at ___, 116 S.Ct. at 2146 n.2 (citation omitted).

Contrary to an argument made by Brame, we think that the

cases of Austin v. United States, 509 U.S. 602 (1993), and

Department of Revenue v. Kurth Ranch, 511 U.S. ___, 114 S.Ct. 1937

(1994), decided subsequent to Halper, do not detract from the view

that a sanction need not be exclusively remedial to avoid

implicating the Double Jeopardy Clause. Austin is inapposite; it

is not a double jeopardy case but, instead, one applying the

Excessive Fines Clause of the Eighth Amendment.
Kurth Ranch actually supports the view we take of the matter.

The opinion in Kurth Ranch quotes with approval the specific

holding in Halper indicating that a sanction need not be

exclusively remedial to avoid implicating the Double Jeopardy

Clause. Kurth Ranch, 511 U.S. at ___, 114 S.Ct. at 1945. The

opinion also states that "an obvious deterrent purpose [does not]

automatically [make a sanction] a form of punishment," 511 U.S. at

___, 114 S.Ct. at 1946. In any event, Ursery counteracts anything
that may have been said in either Austin or Kurth Ranch that is at

odds with the view that a sanction need not be exclusively

remedial to preclude a claim of double jeopardy. 3
3
In oral argument, Brame cited United States v.
$405,089.23 in United States Currency, 33 F.3d 1210 (9th
Cir. 1994), along with Halper, Austin, and Kurth Ranch, in
arguing that the sanction of administrative license
suspension was punitive and not remedial. However, the
Supreme Court reversed the Ninth Circuit's judgment in
United States v. $405,089.23 at the same time it reversed
the judgment of the Sixth Circuit in United States v.
Ursery, cited in the text.
 This brings us to the question whether Virginia's license

suspension statutes serve a remedial purpose. We think they do.

Any person who operates a motor vehicle upon a highway of

this Commonwealth shall be deemed, as a condition of such

operation, to have consented to have samples of his blood or

breath taken for a chemical test to determine the alcohol or drug

content of his blood if arrested for driving while intoxicated.

Code § 18.2-268.2.
Any person who is arrested for driving while intoxicated and

refuses to submit to a blood or breath test faces two separate and

distinct proceedings. One is a criminal action under Code § 18.2-

266 for driving while intoxicated, which carries a sanction of

fine or imprisonment, or both. The other is a civil and

administrative proceeding under Code § 18.2-268.3 for refusing, in

breach of the person's implied consent, to allow samples of blood

or breath to be taken, which carries the sanction of a one-year

license suspension.

The one-year license suspension pursuant to Code § 18.2-268.3

for refusing to permit the taking of blood or breath samples is

"'no part of the punishment [for drunk driving nor] is it . . . an

added punishment for the offense committed.'" Deaner v.
Commonwealth, 210 Va. 285, 290, 170 S.E.2d 199, 203 (1969)

(quoting Prichard v. Battle, 178 Va. 455, 462, 17 S.E.2d 393, 395

(1941)). Rather, like the provision for implied consent, the

provision for a one-year license suspension is "a measure flowing

from the police power of the state designed to protect other users

of state highways." Deaner, 210 Va. at 289, 170 S.E.2d at 202.
 Hence, we think that the one-year license suspension

prescribed by Code § 18.2-268.3 has a clear, overriding remedial

purpose and that the same may be said for the seven-day

administrative suspension prescribed by Code § 46.2-391.2.

Indeed, this is exactly the view the Court of Appeals of Virginia

has adopted concerning administrative license suspension.

In Tench v. Commonwealth, 21 Va. App. 200, 462 S.E.2d 922

(1995), the defendant was convicted for driving while intoxicated

after he had suffered a seven-day administrative suspension of his

operator's license pursuant to Code § 46.2-391.2. The Court of
4
Appeals affirmed the conviction. Rejecting the defendant's

contention that he was twice placed in jeopardy as a result of his

license suspension and his subsequent conviction for driving while

intoxicated, the Court of Appeals stated as follows:
The General Assembly's consideration of a procedure for
automatic license suspension was motivated by its desire
to reduce "alcohol-related crashes, fatalities, and
injuries." See S.J.Res. 172, 1989 Va. Acts. Enactment
of this procedure was no empty exercise, as states that
have enacted such laws have experienced a reduction in
alcohol-related crashes and fatalities. We hold that
automatic license suspension under Code § 46.2-391.2 is
a remedial sanction because its purpose is to protect
the public from intoxicated drivers and to reduce
alcohol-related accidents.

5
21 Va. App. at 205, 462 S.E.2d at 924 (footnote omitted).
4
Tench sought an appeal to this Court, but his petition
was dismissed on procedural grounds.
5
Senate Joint Resolution 172, cited in the Tench
opinion, directed several state agencies to study and make a
report on the subject of administrative license suspension.
Brame argues that it was shown in the report filed as a
result of the study that "the motivation for enacting [the
administrative suspension] legislation was deterrence of
drunk driving." The report cites the testimony of two
members of the General Assembly given at public hearings
Furthermore, this view has been adopted by the highest court of

every state that has reviewed the double jeopardy aspects of

administrative license suspension since Halper was decided.

Deutschendorf v. People, 920 P.2d 53 (Colo. 1996); State v.

Hickam, 668 A.2d 1321 (Conn. 1995), cert. denied, ___ U.S. ___,

116 S.Ct. 1851 (1996); State v. Higa, 897 P.2d 928 (Haw. 1995);

State v. Talavera, 905 P.2d 633 (Idaho 1995); State v. Kocher, 542

N.W.2d 556 (Iowa 1996); State v. Mertz, 907 P.2d 847 (Kan. 1995);

Butler v. Department of Pub. Safety & Corr., 609 So. 2d 790 (La.
1992); State v. Savard, 659 A.2d 1265 (Me. 1995); State v. Jones,

666 A.2d 128 (Md. 1995), cert. denied, ___ U.S. ___, 116 S.Ct.

1265 (1996); Luk v. Commonwealth, 658 N.E.2d 664 (Mass. 1995);

State v. Hanson, 543 N.W.2d 84 (Minn. 1996); State v. Mayo, 915

S.W.2d 758 (Mo. 1996); State v. Hansen, 542 N.W.2d 424 (Neb.

1996), cert. denied, ___ U.S. ___, 116 S.Ct. 2509 (1996); State v.

Cassady, 662 A.2d 955 (N.H. 1995); State v. Kennedy, 904 P.2d 1044

(N.M. 1995); State v. Zimmerman, 539 N.W.2d 49 (N.D. 1995); State
v. Strong, 605 A.2d 510 (Vt. 1992).

We especially note and concur in an observation made by the

Supreme Court of Vermont in State v. Strong: "[A] 'bright line'

has developed [in the decisions] because the nonpunitive purpose
(..continued)
conducted by a task force formed by the agencies directed by
SJR 172 to make the study. However, while one of these
members used the word "deter" once, it is obvious that both
members were merely offering their own opinions on the
subject under study. The only real evidence of "motivation"
is found in SJR 172 itself, where it is noted that "twenty-
three states have enacted administrative revocation laws and
subsequently experienced a significant reduction in alcohol-
related crashes, fatalities and injuries." This speaks much
louder of remedy than deterrence.
of the [administrative] license suspension is so clear and

compelling. We see nothing in Halper that induces us to cross

that line." 605 A.2d at 514.

Similarly, the remedial purpose of Virginia's seven-day

administrative suspension provision is so clear and compelling

that it overrides any incidental punitive effect the provision may

have. Accordingly, we have no difficulty in holding that Brame's

rights under the Double Jeopardy Clause were not violated by the

subsequent judicial suspension of his license for one year.
Brame contends, however, that the inquiry does not end with

the Double Jeopardy Clause. He argues that Code § 19.2-294

"provides [him] a separate protection against double jeopardy."

In pertinent part, this Code section reads:
If the same act be a violation of two or more statutes,
or of two or more ordinances, or of one or more statutes
and also one or more ordinances, conviction under one of
such statutes or ordinances shall be a bar to a
prosecution or proceeding under the other or others.

The ready answer to Brame's argument is that this Court has

already interpreted the foregoing statute adversely to his

position. Quidley v. Commonwealth, 190 Va. 1029, 59 S.E.2d 52
(1950), involved a gaming conviction and a proceeding to forfeit

property. There, the accused contended that § 4775 of the Code of

1942, now Code § 19.2-294, barred the forfeiture proceeding.

Rejecting the contention, this Court held as follows:
[S]ection 4775 . . . is applicable only to criminal
proceedings. The proceeding to forfeit property is
against the property and not against the owner of the
property or any other person. It is in rem wholly and
not in personam. It is not a criminal proceeding. It
is a civil case.
Id. at 1036, 59 S.E.2d at 56. Here, Brame's administrative

license suspension is not a criminal proceeding. It is a civil

proceeding and, hence, could not serve as a bar to a proceeding

under Code § 18.2-268.3 for refusing to submit to a blood or

breath test, which is itself civil in nature.

Brame argues further that because he was found not guilty of

driving while intoxicated, there is no rational relationship

between his administrative license suspension and the need to

protect the public from intoxicated drivers. What Brame

overlooks, however, is that his arrest for driving while

intoxicated was based upon probable cause, as determined by the

magistrate and confirmed by the general district court. Hence, at

the time of his arrest, Brame posed at least a potential threat to

the safety of others using the highway, a potentiality whose

existence was unaffected by the subsequent acquittal on the charge

of driving while intoxicated. Brame further overlooks the fact

that he was also arrested for refusing to submit to a blood or

breath test notwithstanding his implied consent to take such a

test, a refusal that survived the subsequent acquittal on the

drunk driving charge. There was a rational relationship,

therefore, between Brame's administrative license suspension and

the need to protect the public from intoxicated drivers and those

who refuse to honor their assumed obligations.
Brame also argues that the legislative choice of seven days

for an administrative suspension is arbitrary, bearing no rational

relationship to any remedial purpose of protecting the public.

The arbitrariness is apparent, Brame says, when it is considered
that alcohol in the blood stream tends to dissipate within several

hours of consumption, making the suspension sanction, in the words

of Halper, "so divorced from any remedial goal that it constitutes

'punishment' for the purpose of double jeopardy analysis." 490

U.S. at 443.

We disagree. The length of the period necessary to protect

the safety of the public in this situation is a matter within the

sound discretion of the General Assembly. It can hardly be said

the discretion has been abused in light of the fact that

Virginia's seven-day period is shorter than any of the periods

considered in the out-of-state cases listed above, where double

jeopardy claims similar to those advanced here were rejected.

Indeed, the majority of the states listed have suspension periods

of ninety days or more and, in some instances, substantially

longer than ninety days.
DUE PROCESS

Brame's entire due process claim is based upon the

proposition that because the arresting officer did not appear at

the hearing in general district court, he did not have the

opportunity to cross-examine the officer. However, Brame

certainly had the opportunity to secure the officer's testimony by

requesting his voluntary appearance or obtaining a subpoena

compelling his attendance. Yet, so far as the record shows, Brame

made no effort whatsoever to procure the officer's presence. In

the absence of any such effort, Brame has no standing to complain.

For the reasons assigned, we will affirm the judgment of the

trial court.
Affirmed.