(concurring in dissent) — I concur in the dissent. I do so because I agree with Justice Sanders that the issuance of a probationary driver’s license, pursuant to former RCW 46.61.5052, has no remedial purpose. Its only purpose, as the dissent observes, is punitive in that it has the effect of increasing the punishment of the probationary licensee on his or her súbsequent offense for DUI. Dissenting op. at 878-80. In essence, the probationary license is treated as a prior DUI conviction whether or not the holder of that license is ultimately convicted of the charge which resulted in the issuance of the probationary license.
I write separately only because I disagree with the view expressed in the dissent that if a sanction is partially remedial and partially punitive, it always violates the Double Jeopardy Clause of the United States Constitution. Dissenting op. at 882-83. In reaching that conclusion, the dissent relies primarily on United States v. Halper, 490 U.S. 435, 448, 109 S. Ct. 1892, 104 L. Ed. 2d 487 (1989) in *876which the Court said that "it follows that 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.” (Emphasis added).
The Halper case has, however, been undercut somewhat by the recent case of United States v. Ursery, 516 U.S. 267, 116 S. Ct. 2135, 135 L. Ed. 2d 549 (1996). Regarding that case, the Court said that if the language of that case were to be "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.” Ursery, 116 S. Ct. at 2146 n.2. In Ursery, the Court explicitly stated the test that should be employed to determine when a civil sanction is punitive. It said that a sanction is punishment if either (1) it is intended by Congress to be criminal or (2) " 'whether the statutory scheme was so punitive either in purpose or effect as to negate’ Congress’ intention to establish a civil remedial mechanism.’ ” Ursery, 116 S. Ct. at 2142 (quoting United States v. One Assortment of 89 Firearms, 465 U.S. 354, 365, 104 S. Ct. 1099, 79 L. Ed. 2d 361 (1984) (quoting United States v. Ward, 448 U.S. 242, 248-49, 100 S. Ct. 2636, 65 L. Ed. 2d 742 (1980))).
It is not difficult to conceive of a statutory scheme in which a requirement that probationary licenses be issued to first time DUI offenders could have a predominantly remedial effect. If, for example, the Legislature had provided that a person with a probationary license could drive only from 9:00 a.m. to 6:00 p.m., the overriding effect of the provision would be remedial because the provision would have the effect of removing the offending driver from the highway during the hours that drinking and driving is most prevalent. Although, arguably, such a restriction on driving is punitive, that aspect of the sanction does not detract from its main thrust, which is remedial.
Under the legislative scheme we have here, however, there is no such remedial effect. The probationary license does not inhibit the licensee’s privilege to drive in any *877way and, consequently, it is impossible to conclude that it has any effect other than to enhance punishment. That being the case, double jeopardy protections are triggered.
Moreover, because the issuance of a probationary license under RCW 46.61.5051 has no remedial effect, the multi-page string citation of authority in the concurrence is largely irrelevant. It is true that administrative revocation or suspension of a driver’s license may well have a remedial rather than punitive effect, and thus prove to be no bar on double jeopardy grounds to a criminal prosecution. However, this conclusion simply begs the question in this case, which is whether the probationary license at issue is remedial. Unlike a revocation or a suspension, the probationary license here has no effect other than to punish.
Johnson and Madsen, JJ., concur with Alexander, J.