(concurring) — While I agree with the majority opinion, I do not believe we need to rely on the rather unpredictable course of the United States Supreme *870Court’s double jeopardy jurisprudence to reach the conclusion in the majority opinion.55 The present case rises and falls on a single question: is the license action punishment? If it is punishment, jeopardy attaches.
Jurisdictions that have considered the question have overwhelmingly held licensure actions to be remedial, not punishment: Thompson v. State, 896 F. Supp. 220 (D. Me. 1995) (suspension of license under Maine statute was not punishment under double jeopardy clause and did not bar subsequent DUI56 prosecution); State v. Zerkel, 900 P.2d 744 (Alaska Ct. App. 1995) (revocation of driver’s license for refusing to submit to blood alcohol test or having test results of .10 percent or higher is remedial for double jeopardy purposes, even though revocation plays a role in deterrence); Marzolf v. Superior Court, 185 Ariz. 144, 912 P.2d 1373 (1995) (administrative license suspension for excessive blood alcohol content does not constitute punishment under double jeopardy clause); Baldwin v. Department of Motor Vehicles, 35 Cal. App. 4th 1630, 42 Cal. Rptr. 2d 422 (1995) (mandatory revocation of driver’s license subsequent to criminal punishment for third DUI conviction did not violate motorist’s double jeopardy protection against multiple punishments); People v. Olson, *871921 P.2d 51 (Colo. Ct. App. 1996) (prior administrative driver’s license revocation for failure to submit to breath or blood alcohol test did not constitute punishment for purposes of double jeopardy clause); State v. Hickam, 235 Conn. 614, 668 A.2d 1321 (1995) (90-day administrative license suspension had legitimate remedial purpose of promoting public safety and was rationally related to that purpose, and thus defendant’s subsequent criminal prosecution was not barred by double jeopardy principles), cert. denied, 517 U.S. 1221, 116 S. Ct. 1851, 134 L. Ed. 2d 951 (1996); Davidson v. MacKinnon, 656 So. 2d 223 (Fla. Dist. Ct. App.) (administrative remedy of suspension of driver’s license for DUI or other related behavior is primarily for purpose of enhancing safe driving on public highways and does not bar subsequent criminal prosecution for DUI), review denied, 662 So. 2d 931 (Fla. 1995); State v. Murray, 644 So. 2d 533 (Fla. Dist. Ct. App. 1994) (driver’s license suspension did not preclude DUI prosecution on double jeopardy grounds); Gomez v. State, 621 So. 2d 578 (Fla. Dist. Ct. App. 1993) (no double jeopardy violation was involved in prosecution of DUI charge after defendant’s driver’s license was seized because of same conduct); Martinez v. State, 221 Ga. App. 483, 471 S.E.2d 551 (1996) (administrative license suspension not punishment for double jeopardy purposes); State v. Higa, 79 Haw. 1, 897 P.2d 928 (1995) (acquittal was immaterial for double jeopardy purposes inasmuch as function of Administrative Drivers License Revocation Office proceeding was purely remedial and nonpunitive); State v. Talavera, 127 Idaho 700, 905 P.2d 633 (1995) (administrative suspension of defendant’s driver’s license did not constitute punishment under Double Jeopardy Clause so as to foreclose subsequent prosecution of defendant for DUI arising out of same incident); People v. Eck, 279 Ill. App. 3d 541, 664 N.E.2d 1147 (1996) (statutory summary suspension of driving privileges does not constitute punishment for double jeopardy purposes); Schrefler v. State, 660 N.E.2d 585 (Ind. Ct. App. 1995) (administrative suspension of driving privileges was not punishment); State v. Kocher, 542 N.W.2d 556 (Iowa 1996) (double *872jeopardy clause does not bar prosecution of defendant in DUI case if defendant’s license has previously bee‘n suspended through administrative proceedings); State v. Savard, 659 A.2d 1265 (Me. 1995) (revocation or suspension of driver’s license is not punishment, and, thus, prosecution for DUI following administrative suspension of license for DUI is not barred by state and federal double jeopardy clauses); State v. Mertz, 258 Kan. 745, 907 P.2d 847 (1995) (double jeopardy did not bar prosecution of defendant for driving under the influence of alcohol after defendant’s driver’s license was administratively suspended); Leduc v. Commonwealth, 421 Mass. 433, 657 N.E.2d 755 (1995) (administrative suspension of driver’s license for taking and failing breathalyzer test is not punishment for double jeopardy purposes); Johnson v. State, 95 Md. App. 561, 622 A.2d 199 (1993) (administrative sanction previously imposed on motorist based on same underlying activity, consisting of two-month suspension of his driving privileges, did not rise to level of punishment or penalty sufficient to trigger double jeopardy concerns when motorist was subsequently prosecuted for vehicular offenses); State v. Jones, 340 Md. 235, 666 A.2d 128 (1995) (temporary administrative suspension of driver’s license does not constitute punishment under the law of double jeopardy found in the United States Constitution or under Maryland common law), cert. denied, 516 U.S. 1173, 116 S. Ct. 1265, 134 L. Ed. 2d 213 (1996); City of New Richland v. VanEngelenburg, 543 N.W.2d 634 (Minn. 1996) (civil driver’s license revocation for DUI was not punishment for double jeopardy purposes); State v. Hanson, 543 N.W.2d 84 (Minn. 1996) (civil driver’s license revocation pursuant to implied consent statute for driving under the influence did not bar subsequent criminal prosecution for same conduct under double jeopardy principles); State v. Mayo, 915 S.W.2d 758 (Mo. 1996) (suspension or revocation of driver’s license for driving with unlawful blood alcohol content was not punishment implicating double jeopardy clause), cert. denied,_U.S. _, 117 S. Ct. 61, 136 L. Ed. 2d 23 (1996); State v. Young, *873249 Neb. 539, 544 N.W.2d 808 (1996) (administrative license revocation primarily served remedial purpose and thus did not impose punishment for double jeopardy purposes); State v. Hansen, 249 Neb. 177, 542 N.W.2d 424 (1996) (double jeopardy clauses did not bar DUI prosecution after driver’s license had been administratively revoked for failure of alcohol breath test), cert. denied, 517 U.S. 1249, 116 S. Ct. 2509, 135 L. Ed. 2d 198 (1996); State v. Cassady, 140 N.H. 46, 662 A.2d 955 (1995) (previous administrative review hearing for suspension of driver’s license did not bar prosecution of defendant for driving under the influence of liquor, for double jeopardy purposes); State ex rel. Schwartz v. Kennedy, 120 N.M. 619, 904 P.2d 1044 (1995); State v. Oliver, 343 N.C. 202, 470 S.E.2d 16 (1996) (ten-day driver’s license revocation and $50 license restoration fee do not constitute punishment and do not bar subsequent DUI prosecution under double jeopardy clause); State v. Zimmerman, 539 N.W.2d 49 (N.D. 1995) (driver’s license revocation under Implied Consent Act is not punishment for purposes of double jeopardy clause); State v. Gustafson, 76 Ohio St. 3d 425, 668 N.E.2d 435 (1996) (civil sanction imposed as a result of administrative license suspension proceeding was not punishment for double jeopardy purposes so long as length of suspension did not extend beyond conviction and sentencing); Kane v. State, 915 P.2d 932 (Okla. Crim. App. 1996) (administrative revocation of defendant’s driver’s license under implied consent statutes did not constitute punishment for double jeopardy purposes); State v. Phillips, 138 Or. App. 468, 909 P.2d 882 (administrative suspension of driver’s license for driving under influence of intoxicants does not constitute punishment for double jeopardy purposes), review denied, 323 Or. 114, 913 P.2d 1384 (1996); Martin v. Commonwealth, 672 A.2d 397 (Pa. Commw. Ct. 1996) (automatic suspension of driver’s license as consequence of drug conviction does not violate double jeopardy clause); State v. Talavera, 127 Idaho 700, 905 P.2d 633 (administrative suspension of defendant’s driver’s license did not constitute punishment for double jeopardy *874purposes foreclosing subsequent prosecution for DUI arising out of same incident) rehearing denied (1995); Ex parte Vasquez, 918 S.W.2d 73 (Tex. Ct. App. 1996) (DUI prosecution following administrative license suspension for refusing to submit to breath, test does not violate the protection against double jeopardy); State v. Arbon, 909 P.2d 1270 (Utah Ct. App.) (administrative license suspensions for DUI did not constitute punishment for double jeopardy purposes), cert. denied, 916 P.2d 909 (1996); Tench v. Commonwealth, 21 Va. App. 200, 462 S.E.2d 922 (1995) (automatic suspension of defendant’s driver’s license for failing breath test did not constitute punishment for double jeopardy purposes); State v. O’Brien, 158 Vt. 275, 609 A.2d 981 (1992) (administrative suspension proceeding is not criminal in nature).57 But see United States v. Imngren, 914 F. Supp. 1326 (E.D. Va. 1995) (administrative suspension of driver’s license for one year on all military installations constitutes punishment for double jeopardy purposes); State v. Ackrouche, 70 Ohio Misc. 2d 34, 650 N.E.2d 535 (1995) (Franklin County Municipal Court holds because administrative license suspension was punishment imposed in separate proceeding for same conduct which was subject of prosecution pursuant to drunk driving law, double jeopardy clauses of United States and Ohio Constitutions barred criminal prosecution on that charge).
Even if one were to disagree, as the dissent does, with the multitudes of our colleagues nationwide who have held drivers license revocations and suspensions are not punishment for double jeopardy purposes, the probationary status complained of in the present case imposes no immediate sanction whatsoever on the licensee, and cannot possibly be considered punishment.58 Placing a driver on probationary status is less onerous than the revoca*875tions and suspensions other jurisdictions hold not to be punishment.59 Accordingly, the challenged action in this case is not punishment.
Durham, C.J., and Guy, J., concur with Talmadge, J.
The dissent relies on our language in State v. Clark, 124 Wn.2d 90, 98, 875 P.2d 613 (1994): "[A] forfeiture statute must be solely remedial to escape characterization as 'punishment’ under the federal double jeopardy clause.” Clark, in turn, relied on Austin v. United States, 509 U.S. 602, 113 S. Ct. 2801, 125 L. Ed. 2d 488 (1993), for the same wording. Clark, 124 Wn.2d at 100. Leaving aside the important question of whether the same considerations that apply in the civil forfeiture arena apply in the context of driver license administration, the Supreme Court has decided the "holding of Austin was limited to the Excessive Fines Clause of the Eighth Amendment, and we decline to import the analysis of Austin into our double jeopardy jurisprudence.” United States v. Ursery, 516 U.S. 267, 116 S. Ct. 2135, 2147, 135 L. Ed. 2d 549 (1996). The dissent evidently believes the Supreme Court is wrong about this and relies heavily on Austin for its double jeopardy analysis. We are bound to observe the Supremacy Clause: the Supreme Court’s rulings on double jeopardy under the federal constitution control. We have said our state constitution provides no greater double jeopardy protection than the federal constitution. State v. Gocken, 127 Wn.2d 95, 896 P.2d 1267 (1995).
Many states use different terminology for the crime of driving under the influence of alcohol or drugs (DUI). I use DUI as the reference for all such statutes.
Even Justice Stevens, the lone dissenter in Ursery, suggested "administrative licensing sanctions are remedial.” Ursery, 116 S. Ct. at 2161 n. 16 (Stevens, J., concurring in part, dissenting in part).
A statutory scheme providing an enhanced criminal sentence in the future based upon a purely administrative action in the past might raise serious due process (not double jeopardy) concerns. Justice Alexander correctly observes in his concurrence in the dissent, "the probationary license is treated as a prior DUI conviction whether or not the holder of that license is ultimately convicted *875of the charge which resulted in the issuance of the probationary license.” Concurrence in Dissent at 875. That question is not before us now, and we need not address it.
The dissent’s conclusion that the issuance of a probationary license is punishment is strange. As a consequence of the issuance of the probationary license in this case, precisely nothing happened to the respondents. They were not deprived of life, limb, liberty, or property. Nor was there any effect whatsoever on their privilege to drive in Washington. In fact, even though their BAC Datamaster tests indicated they were driving with more than the legal limit of alcohol in their systems, they have not been tried for drunk driving because the court below dismissed the charges against them. The respondents have not been punished. "The risk to which the [Double Jeopardy] Clause refers is not present in proceedings that are not 'essentially criminal.’ ” Breed v. Jones, 421 U.S. 519, 528, 95 S. Ct. 1779, 44 L. Ed. 2d 346 (1975). It is only upon the contingency of a future charge for DUI that the effect of the probationary license springs to life. I cannot comprehend how the Double Jeopardy Clause can apply to something that has not yet happened, and may never happen, to require dismissal of the DUI charges in this case.