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hearing appellant's testimony, the court rescinded the license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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