Jones v. City of Lynchburg

                    COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Willis and Elder
Argued at Richmond, Virginia


ALFRED MCKINLEY JONES
                                                OPINION BY
v.        Record No. 1896-95-3             JUDGE LARRY G. ELDER
                                            SEPTEMBER 10, 1996
CITY OF LYNCHBURG


         FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
                     Richard S. Miller, Judge

          James B. Feinman (James B. Feinman &
          Associates, on brief), for appellant.

          H. Elizabeth Shaffer, Assistant Attorney
          General (James S. Gilmore, III, Attorney
          General, on brief), for appellee.



     Alfred McKinley Jones (appellant) appeals his conviction for

driving with a prohibited blood alcohol level, in violation of

Lynchburg Code § 25-162.   Appellant contends that the trial court

erred in failing to dismiss the drunk driving charge as barred on

double jeopardy and collateral estoppel grounds.   Because the

trial court did not err, we affirm appellant's conviction.

                                  I.

                                 FACTS

     On April 8, 1995, a vehicle driven by appellant nearly

struck another vehicle.    Officer P. K. Redd of the Lynchburg

Police Department arrived at the scene shortly thereafter.

Appellant failed three field sobriety tests, and breathalyzer

test results indicated that appellant's blood alcohol level was

.20 percent.
     Pursuant to Code § 46.2-391.2, upon appellant's arrest, his

driver's license was suspended administratively for seven days.

On April 12, 1995, appellant filed a motion for review of his

administrative suspension.    The Lynchburg General District Court

held a hearing on the matter the same day, at which the

Commonwealth chose not to appear.     No police reports or other

evidence on the Commonwealth's behalf were offered.    After

hearing appellant's testimony, the court rescinded the license

suspension, finding that the police lacked probable cause to

arrest appellant.
     Despite the general district court's ruling that no probable

cause existed for appellant's arrest, the City of Lynchburg

prosecuted appellant in the general district court pursuant to

Lynchburg Code § 25-162, which prohibits drunk driving.    On May

2, 1995, appellant filed a motion to dismiss on grounds of

acquittal, based on the ruling that there was no probable cause

for his arrest.   Appellant argued that the Commonwealth was

collaterally estopped from proceeding on the related drunk

driving charge and that the prosecution of the criminal charge

was barred on double jeopardy grounds.    The general district

court overruled the motion and on May 3, 1995, convicted

appellant of drunk driving.

     After appealing his conviction to the circuit court,

appellant again filed a motion to dismiss on grounds of

acquittal.   On August 8, 1995, the circuit court denied




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appellant's motion.   The circuit court ruled that pursuant to

Code § 46.2-391.2(C) the prior determination of no probable cause

did not constitute a binding or final judgment upon which

collateral estoppel could be based. 1   After appellant stipulated

to the Commonwealth's evidence, the circuit court found appellant

guilty of drunk driving.

                                II.

               DOUBLE JEOPARDY & COLLATERAL ESTOPPEL
     Appellant argues that his prosecution for drunk driving was

constitutionally impermissible because the administrative license

suspension proceeding was a criminal proceeding, and the double

jeopardy protection of the Fifth Amendment of the United States

Constitution barred a second prosecution.    We disagree.

     In Tench v. Commonwealth, 21 Va. App. 200, 204, 462 S.E.2d

922, 923-24 (1995)(en banc), we held that an administrative

license suspension is a civil penalty and does not constitute

"punishment" for double jeopardy purposes.    See United States v.
Halper, 490 U.S. 435 (1989).   Here, pursuant to Code

§ 46.2-391.2(C), appellant timely requested the general district

court to review the license suspension, and a hearing was held on
     1
         This statutory section reads, in part:

                The court's findings [with regard to the
           review of the license suspension] are without
           prejudice to the person contesting the
           suspension or to any other potential party as
           to any proceedings, civil or criminal, and
           shall not be evidence in any proceedings,
           civil or criminal.




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the matter four days after the suspension.   It follows logically

from Tench that the district court's license suspension hearing

was a civil proceeding.   See, e.g., State v. Young, 544 N.W.2d

808, 811 (Neb. 1996)(holding that an administrative license

suspension hearing is civil); State v. Cassady, 662 A.2d 955, 958

(N.H. 1995)(same); Walton v. State, 831 S.W.2d 488, 490 (Tex. Ct.

App. 1992)(same); People v. Moore, 561 N.E.2d 648, 650 (Ill.

1990)(same).   Therefore, because the license suspension

proceeding "did not impose punishment within the meaning of the

double jeopardy clause, [appellant] was not twice placed in

jeopardy in violation of the United States Constitution when

prosecuted for driving while intoxicated."   Tench, 21 Va. App. at

208, 462 S.E.2d at 925.

     "The doctrine of collateral estoppel in criminal cases . . .

means 'that when an issue of ultimate fact has once been

determined by a valid and final judgment, that issue cannot again

be litigated between the same parties in any future lawsuit.'"
Rogers v. Commonwealth, 5 Va. App. 337, 341, 362 S.E.2d 752, 754

(1987)(quoting Ashe v. Swenson, 397 U.S. 436, 443 (1970)).     "The

party seeking the protection of collateral estoppel carries the

burden of showing that the verdict in the prior action

necessarily decided the precise issue he seeks to now preclude."

 Rogers, 5 Va. App. at 341, 362 S.E.2d at 754.   "[T]he doctrine

of collateral estoppel is a constitutional requirement embodied

in the fifth amendment protection against double jeopardy and is



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applicable to the states through the fourteenth amendment to the

United States Constitution."   Simon v. Commonwealth, 220 Va. 412,

415, 258 S.E.2d 567, 569 (1979).

     Because the license suspension hearing was a civil

proceeding, "[a]pplication of the doctrine of collateral estoppel

is not constitutionally mandated."     Cassady, 662 A.2d at 958

(holding that collateral estoppel did not prevent relitigation in

a criminal proceeding of issues of fact previously decided in

defendant's favor in an administrative hearing); Young, 544
N.W.2d at 812 (same); State v. Arnold, 593 So. 2d 1293 (La. Ct.

App. 1991)(same), writ denied, 594 So. 2d 1305 (La. 1992); Moore,

561 N.E.2d at 652.   "Because the 'issues of ultimate fact' in an

administrative hearing held pursuant to [Code § 46.2-391.2] are

different from those in a prosecution for the offense of driving

while intoxicated, the doctrine of collateral estoppel does not

bar . . . [a] subsequent prosecution for driving while

intoxicated."   Walton, 831 S.W.2d at 490 (holding that

administrative hearing to revoke defendant's license did not

collaterally bar prosecution and did not violate double

jeopardy).

     Furthermore:
          If we were to hold the doctrine of collateral
          estoppel applicable to later criminal
          proceedings, the [Commonwealth] would be
          forced to litigate thoroughly every fact at
          issue in an administrative license suspension
          proceeding. This would undermine the goal of
          providing informal and prompt review of a
          decision to suspend a driver's license.



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Cassady, 662 A.2d at 958.   See Young, 544 N.W.2d at 812; Moore,

561 N.E.2d at 652.   "From the [Commonwealth's] perspective, [an

administrative] hearing is a minor matter where one would not

expect the [Commonwealth] to prosecute the action vigorously[.]"

 State v. Gusman, 874 P.2d 1112, 1115 (Idaho 1994).   Also,

because license suspension hearings are civil in nature, "the

court may rely on law enforcement officers' official reports in

the absence of the officers themselves."   Moore, 561 N.E.2d at

650; State v. Higa, 897 P.2d 928, 936 (Haw. 1995); see Code
§ 46.2-391.2(B), (C).

     For these reasons, we hold that the doctrines of double

jeopardy and collateral estoppel did not bar appellant's

prosecution for drunk driving, and we affirm his conviction.

                                                           Affirmed.




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Benton, J., concurring.


     I concur in the majority's holding that our decision in

Tench v. Commonwealth, 21 Va. App. 200, 462 S.E.2d 922 (1995)(en

banc) is dispositive of appellant's double jeopardy argument.

     While I generally agree with most of the majority's

discussion of collateral estoppel, I believe that the following

language of Code § 46.2-391.2(C) is dispositive of the collateral

estoppel issue:
             The [general district] court's findings
          [with regard to the review of the license
          suspension] are without prejudice to the
          person contesting the suspension or to any
          other potential party as to any proceedings,
          civil or criminal, and shall not be evidence
          in any proceedings, civil or criminal.

     "In Virginia, it is well established that collateral

estoppel requires mutuality."    Hampton Roads Sanitation Dist. v.

City of Virginia Beach, 240 Va. 209, 213, 396 S.E.2d 656, 658

(1990).   Under the mutuality doctrine, for which no exception

applies in this case, "a litigant is generally prevented from

invoking the preclusive force of a judgment unless he would have

been bound had the prior litigation of the issue reached the

opposite result."    N & W v. Bailey, 221 Va. 638, 640, 272 S.E.2d

217, 218 (1980).    See also Angstadt v. Atlantic Mutual Ins. Co.,

249 Va. 444, 447, 457 S.E.2d 86, 87 (1995).   Under the language

of Code § 46.2-391.2(C), no party to the license suspension

hearing was bound by any ruling made by the general district

court.    Indeed, the statute states that the findings may not be




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used in any proceeding.

     Thus, I would also affirm the conviction.




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