COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Elder
Argued at Richmond, Virginia
BRADFORD RAMEY INGRAM
OPINION BY
v. Record No. 0873-98-2 JUDGE LARRY G. ELDER
MAY 25, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Timothy J. Hauler, Judge
David M. Gammino for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Bradford Ramey Ingram (appellant) appeals from his bench
trial conviction for driving under the influence (DUI), second
offense, pursuant to Code § 18.2-266. On appeal, he contends
the administrative suspension of his license pursuant to Code
§ 46.2-391.2 was invalid because he did not refuse to take the
breath test but rather was prevented from doing so by his
asthma. As a consequence, he contends that the suspension was
punitive and that his subsequent DUI conviction violated the
Double Jeopardy Clause. For the reasons that follow, we affirm
appellant's conviction.
I.
FACTS
Appellant was arrested on September 10, 1997, for driving
while under the influence of alcohol, his second such offense
within five years. Because appellant had asthma, he submitted
to a blood test rather than a breath test. Based on his
inability to take a breath test, the Commonwealth
administratively suspended his operator's license for seven days
pursuant to Code § 46.2-391.2. Although the Notice of
Administrative Suspension issued to appellant indicated he could
challenge the suspension by filing a motion for review, the
record contains no evidence indicating that appellant filed such
a motion.
Following appellant's conviction on the underlying DUI
charge in general district court, appellant appealed that
conviction and raised a plea of former jeopardy. By written
motion, he asserted that, because his asthma prevented him from
taking the breath test, the suspension was “arbitrarily imposed
without a legitimate administrative basis” and, therefore, that
“the suspension clearly rises to the level of a punishment,”
rendering any further punishment for the DUI offense a double
jeopardy violation.
The trial court ruled as follows:
I don't believe it was the intent of that
statute to be thwarted by the fact that
someone with legitimate and valid reasons
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could not present a breath sample and I
think the statute is drafted in such a
manner that your client did have the
opportunity to appeal that administrative
revocation.
I'm finding that the revocation was
administrative in nature . . . .
Following the denial of his motion, appellant stipulated
that the evidence--including a certificate of analysis showing a
blood alcohol level of 0.17 percent and a prior DUI conviction
entered September 25, 1995--was sufficient to convict him, and
the trial court found him guilty.
II.
ANALYSIS
Code § 46.2-391.2(A) provides as follows:
If a breath test is taken pursuant to
§ 18.2-268.2 or any similar ordinance of any
county, city or town and the results show a
blood alcohol content of 0.08 percent or
more by weight by volume or 0.08 grams or
more per 210 liters of breath, or the person
refuses to submit to the breath test in
violation of § 18.2-268.3 or any similar
local ordinance, and upon issuance of a
petition or summons, or upon issuance of a
warrant by the magistrate, for a violation
of §§ 18.2-51.4, 18.2-266 or § 18.2-268.3,
or any similar local ordinance, the person's
license shall be suspended immediately for
seven days . . . .
Code § 46.2-391.2(C) provides that “[a]ny person whose license
or privilege to operate a motor vehicle has been suspended under
subsection A may, during the period of the suspension, request
the general district court . . . to review that suspension” and
that “the court shall rescind the suspension” if “the person
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proves to the court by a preponderance of the evidence that the
arresting officer did not have probable cause for the arrest,
that the magistrate did not have probable cause to issue the
warrant, or that there was not probable cause for issuance of
the petition.”
We previously have held that an administrative license
suspension issued pursuant to Code § 46.2-391.2 is not
“punishment within the meaning of the double jeopardy clause”;
therefore, a DUI prosecution instituted after a license
suspension does not constitute double jeopardy. See Tench v.
Commonwealth, 21 Va. App. 200, 208, 462 S.E.2d 922, 925 (1995),
cited with approval in Brame v. Commonwealth, 252 Va. 122,
130-32, 476 S.E.2d 177, 182-83 (1996). In reaching this
conclusion, we relied on the test set out in United States v.
Halper, 490 U.S. 435, 109 S. Ct. 1892, 104 L. Ed. 2d 487 (1989),
in which the United States Supreme Court held that “the labels
‘civil’ and ‘criminal’ are not controlling” and that a civil
sanction nevertheless may constitute punishment under certain
circumstances. Tench, 21 Va. App. at 204-05, 462 S.E.2d at 924
(quoting Halper, 490 U.S. at 447, 109 S. Ct. at 1901).
In so doing, we noted that “the purpose of revoking a
driver’s license is ‘not to punish the offender but to remove
from the highways an operator who is a potential danger to other
users.’” Id. at 205, 462 S.E.2d at 924 (quoting Prichard v.
Battle, 178 Va. 455, 463, 17 S.E.2d 393, 396 (1941)). We also
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examined the legislative history behind the enactment of the
suspension statute, which provided that the legislature was
“motivated by its desire to reduce ‘alcohol-related crashes,
fatalities, and injuries.’” Id. (quoting S.J. Res. 172, 1989
Va. Acts). As a result, we held that the license suspension “is
a remedial sanction because its purpose is to protect the public
from intoxicated drivers and to reduce alcohol-related
accidents” and, therefore, that it “does not constitute
punishment for purposes of double jeopardy.” Id. at 205-06, 462
S.E.2d at 924.
After our ruling in Tench, the United States Supreme Court
reconsidered its holding in Halper, upon which our analysis in
Tench was based. See Hudson v. United States, 522 U.S. 93, 118
S. Ct. 488, 139 L. Ed. 2d 450 (1997). In Hudson, the Supreme
Court held that “Halper’s deviation from longstanding double
jeopardy principles was ill considered,” and it “reaffirmed the
previously established rule exemplified in United States v.
Ward, 448 U.S. 242, 248-49[, 100 S. Ct. 2636, 2640-41, 65 L. Ed.
2d 742] (1980).” Hudson, 522 U.S. at 96, 101, 118 S. Ct. at
491, 494. Under the longstanding double jeopardy principles
outlined in Ward, determining “[w]hether a particular punishment
is criminal or civil is, at least initially, a matter of
statutory construction,” and “[a] court must first ask whether
the legislature ‘. . . indicated either expressly or impliedly a
preference for one label or the other.’” Id. at 99, 118 S. Ct.
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at 493 (quoting Ward, 448 U.S. at 248, 100 S. Ct. at 2641).
Because “the Halper Court bypassed [this] threshold question,”
Hudson, 522 U.S. at 101, 118 S. Ct. at 494, we did not expressly
address this issue in Tench. However, our analysis in Tench, as
outlined above, makes clear that the administrative license
suspension is civil in nature.
Under the traditional double jeopardy analysis re-adopted
in Hudson, even where the legislature shows an intent to create
a civil penalty, the court must consider “‘whether the statutory
scheme was so punitive either in purpose or effect,’ as to
‘transfor[m] what was clearly intended as a civil remedy into a
criminal penalty.’” Hudson, 522 U.S. at 99, 118 S. Ct. at 493
(citations omitted). Factors which “provide useful guideposts”
in making this determination include:
(1) [w]hether the sanction involves an
affirmative disability or restraint; (2)
whether it has historically been regarded as
a punishment; (3) whether it comes into play
only on a finding of scienter; (4) whether
its operation will promote the traditional
aims of punishment--retribution and
deterrence; (5) whether the behavior to
which it applies is already a crime; (6)
whether an alternative purpose to which it
may rationally be connected is assignable
for it; and (7) whether it appears excessive
in relation to the alternative purpose
assigned.
Id. at 99-100, 118 S. Ct. at 493 (quoting Kennedy v.
Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S. Ct. 554, 567-68, 9
L. Ed. 2d 644 (1963)) (internal quotation marks omitted). As
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the Court emphasized, however, “‘these factors must be
considered in relation to the statute on its face,’ and ‘only
the clearest proof’ will suffice to override legislative intent
and transform what has been denominated a civil remedy into a
criminal penalty.” Id. at 100, 118 S. Ct. at 493 (citations
omitted).
As we decided in Tench, the legislature clearly intended
for the administrative license suspension to be a civil
sanction. We also hold, under the factors outlined above, that
the statutory scheme is not so punitive as to transform “a civil
remedy into a criminal penalty.” See Powers v. Commonwealth,
694 N.E.2d 324 (Mass. 1998) (holding that suspension of license
following alcohol-related accident under statute permitting
suspension based on driver’s “immediate threat to public safety”
is not punishment under Hudson for double jeopardy purposes);
Keyes v. State, 708 So. 2d 540 (Miss. 1998) (stating, as
alternative ground for affirming conviction, that license
suspension for not timely requesting trial after failing breath
test does not constitute punishment for double jeopardy purposes
under Hudson); State v. Howell, 575 N.W.2d 861 (Neb. 1998)
(applying Hudson to determine that license suspension for
refusal to submit to chemical test is not punishment for
purposes of double jeopardy); State v. Lomas, 955 P.2d 678 (Nev.
1998) (applying Hudson to determine that suspension of license
based on blood alcohol content exceeding legal limit is not
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punishment for purposes of double jeopardy); State v. Price, 510
S.E.2d 215 (S.C. 1998) (applying Hudson to determine that
license suspension for refusal to submit to chemical test is not
punishment for purposes of double jeopardy).
First, the seven-day administrative suspension does not
involve an affirmative restraint, for it is “certainly nothing
approaching the ‘infamous punishment’ of imprisonment.” Hudson,
522 U.S. at 104, 118 S. Ct. at 496 (quoting Flemming v. Nestor,
363 U.S. 603, 617, 80 S. Ct. 1367, 1376, 4 L. Ed. 2d 1435
(1960)). “If occupational debarment from the banking industry
[in Hudson] cannot be considered an affirmative disability or
restraint, then quite obviously the temporary suspension of
[one’s] driving privilege also cannot be so considered.” Lomas,
955 P.2d at 681.
Second, drivers’ license suspensions historically have not
been considered punishment in Virginia. See, e.g., Brame, 252
Va. at 130-31, 476 S.E.2d at 181-82. The “‘revocation of a
privilege voluntarily granted’” is an act which “‘is
characteristically free of the punitive criminal element.’”
Hudson, 522 U.S. at 104, 118 S. Ct. at 496 (quoting Helvering v.
Mitchell, 303 U.S. 391, 399 & n.2, 58 S. Ct. 630, 633 & n.2, 82
L. Ed. 2d 917 (1938)); see also Commonwealth v. Ellett, 174 Va.
403, 414, 4 S.E.2d 762, 767 (1939) (“The operation of a motor
vehicle . . . is a conditional privilege, which may be suspended
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or revoked under the police power. . . . [It] is not a contract
or property right in a constitutional sense.”).
Third, the administrative license suspension does not come
into play “only on a finding of scienter,” although the portion
of the statute providing for suspension upon refusal to submit
to testing may involve a finding of scienter. See Code
§ 46.2-391.2; see also Price, 510 S.E.2d at 219 (under statute
providing for suspension only for refusal to take test, noting
that “although the sanction . . . does come into play only on a
finding of scienter, . . . no one of the factors alone is
dispositive”).
Fourth, although the statute may “promote the traditional
aims of punishment--retribution and deterrence,” Hudson, 522
U.S. at 99, 118 S. Ct. at 493, “this element is present in any
loss of license or privilege and is not the primary focus of the
statutory scheme,” State v. Strong, 605 A.2d 510, 513 (Vt. 1992)
(decided under Halper), cited with approval in Brame, 252 Va. at
131-32, 476 S.E.2d at 182-83. Further, “[a]lthough deterrence
is a traditional goal of criminal punishment, . . . deterrence
also may serve civil goals,” such as “deter[ring] drivers who
entertain the idea of driving while intoxicated and . . .
discourag[ing] drivers whose licenses have been revoked from
engaging in similar misconduct in the future.” Lomas, 955 P.2d
at 682.
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Fifth, although the behavior to which the administrative
license suspension applies is already a crime, “[t]his fact is
insufficient to render the [sanction] criminally punitive,
particularly in the double jeopardy context.” Hudson, 522 U.S.
at 105, 118 S. Ct. at 496; see United States v. Ursery, 518 U.S.
267, 292, 116 S. Ct. 2135, 2149, 135 L. Ed. 2d 549 (1996) (“[I]t
is well settled that ‘[a legislature] may impose both a criminal
and a civil sanction in respect to the same act or omission.’”
(quoting Helvering, 303 U.S. at 399, 58 S. Ct. at 633)).
Sixth, the administrative license suspension statute is
rationally connected to a purpose other than criminal
punishment, for it furthers the government’s remedial goal of
maintaining safety on public roads. See Brame, 252 Va. at 133,
476 S.E.2d at 183; Tench, 21 Va. App. at 205, 462 S.E.2d at 924.
Seventh, we cannot say the seven-day suspension appears
excessive in relation to this remedial purpose. As the Court
observed in Brame, “the length of the period necessary to
[accomplish the remedial purpose] is a matter within the sound
discretion of the General Assembly,” and “[i]t 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 . . . out-of-state cases . . . the majority [of
which] have suspension periods of ninety days or more . . . .”
Brame, 252 Va. at 133, 476 S.E.2d at 183; see Lomas, 955 P.2d at
681 (holding that ninety-day minimum suspension not excessive);
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Powers, 694 N.E.2d at 326, 328-29 (upholding indefinite
administrative suspension).
Therefore, here, like in Hudson, “there simply is very
little showing, to say nothing of the ‘clearest proof’ required
by Ward,” that the administrative license suspension is criminal
in nature. Hudson, 522 U.S. at 105, 118 S. Ct. at 496.
Indeed, appellant concedes that in light of Hudson a proper
administrative license suspension is not punitive in nature such
that a subsequent prosecution for driving under the influence
arising out of the same incident does not violate the double
jeopardy prohibition. He nevertheless contends that the
suspension of his license pursuant to Code § 46.2-391.2 was
unlawful because, due to his asthma, he neither produced a
breath test result showing a violation of the DUI statute nor
refused to submit to a breath test. Without such a showing, he
contends, the administrative suspension was improperly applied
and became punitive, even though a suspension imposed under
proper circumstances would not have been punitive.
We disagree. As the United States Supreme Court noted in
Hudson, a court determining whether a supposed civil sanction
constitutes punishment for purposes of double jeopardy must
“evaluat[e] the ‘statute on its face,’” Hudson, 522 U.S. at 101,
118 S. Ct. at 490-91 (quoting Kennedy, 372 U.S. at 169, 83
S. Ct. at 567), rather than “‘the character of the actual
sanctions imposed,’” id. at 101, 118 S. Ct. at 490 (quoting
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Halper, 490 U.S. at 447, 109 S. Ct. at 1901). Therefore,
assuming without deciding that appellant’s license was
improperly suspended under Code § 46.2-391.2, we nevertheless
conclude, in keeping with the above analysis, that the
administrative suspension was not punishment for purposes of
double jeopardy. Cf. Robertson v. Commonwealth, 181 Va. 520,
537, 25 S.E.2d 352, 358 (1943) (noting that “the power to decide
includes the power to decide wrong[ly] and [that] an erroneous
decision is as binding [for purposes of contempt] as one that is
correct until set aside or corrected in a manner provided by
law” (quoting Freeman on Judgments § 357, at 744 (5th ed.))).
Any deviation from proper procedure does not change the
fundamental character of the sanction, which is civil and
remedial. Appellant’s remedy was to challenge the suspension as
provided in the statute, a remedy he apparently chose to
disregard.
For these reasons, we hold that appellant’s conviction for
driving under the influence following the administrative
suspension of his license did not violate the Double Jeopardy
Clause and, therefore, we affirm his conviction.
Affirmed.
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