(dissenting) — The Fifth Amendment’s prohibition against double jeopardy is absolute: ". . . [N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . . .” U.S. Const, amend. V. This clause prohibits multiple punishments for the same offense. United States v. Halper, 490 U.S. 435, 448, 109 S. Ct. 1892, 1902, 104 L. Ed. 2d 487 (1989).
If reclassifying allegedly intoxicated drivers to "probationary” status is a form of punishment, the initiation of a criminal proceeding to again punish the same conduct violates the double jeopardy clause and the DUI charge must be dismissed. I agree with the trial court that these defendants have been unconstitutionally placed in jeopardy of punishment twice for the same conduct and would affirm the trial court’s dismissal. I therefore dissent from the contrary conclusion reached by the majority.
The majority opinion rests upon two propositions: (1) summary license revocation with probationary license substitution is not punishment and (2) a sanction which is *878only partially punitive does not place one in jeopardy. I disagree, and doubly so.
This probationary license does not alter one’s privilege to drive but puts the driver in a special class of drivers singled out for enhanced jail time.60 This reclassification is, in itself, punitive because its purpose is to deter future criminal misconduct. This defendant is put in jeopardy twice for the same conduct because (1) his license has been revoked and supplanted with a probationary license and (2) DUI criminal charges have been filed as a result of the same incident.
Is this probationary license punishment?
The majority opines, "[Probationary licenses serve a remedial purpose because they alert the Department and law enforcement officers to a person’s probationary status.” Majority at 864 (emphasis added). Why alert the authorities? Do the authorities simply have inquiring minds or do they need to be "alerted” so they will impose more jail time, next time?
The majority’s analysis is difficult because any alleged distinction between "remedial” and "punishment” is incoherent; punishment is simply one form of remedy. Another form of remedy might be nonpunitive; however, "remedy” includes both. See Roger Pilón, Criminal Remedies: Restitution, Punishment, or Both?, Ethics 348 (July 1978). I have therefore substituted the alternate generic term "sanction” to include all possible sanctions of a puni*879tive or nonpunitive nature. Double jeopardy applies to punitive sanctions.
When the majority says "[Probationary licenses serve a remedial purpose” it fails to tell us whether this "remedy” is punitive or otherwise, but apparently assumes "otherwise.” Under this statute the only sanction imposed by the probationary license is to substantially enhance mandatory criminal penalties to be imposed upon the driver’s second DUI conviction if arrested while driving with a probationary license. The question is therefore whether this sanction—reclassification to potentially heightened criminal penalties—is "punishment” in itself for the same conduct which led to the DUI charges. Certainly, it is conceded, both the probationary license and the DUI charges result from the same conduct.
If a probationary license imposed under this particular statute is a sanction of a punitive nature, it must be so recognized for double jeopardy purposes.
When considering the problem, I certainly agree with the majority and concurrence that not all sanctions are punitive while some certainly are.
Nonpunitive sanctions might include, for example, compensatory damages, restitution, and forfeiture of stolen property for return to its rightful owner. Punishment, on the other hand, would certainly include penal incarceration as well as the threat of incarceration to deter future criminal acts.
Reclassifying one’s license status to "probationary” under this particular statute does not affect the right or scope of the defendant’s driving privileges; however, it does subject him to mandatory enhanced penalties should he be arrested on a subsequent occasion. The sole purpose of this reclassification is simply to deter the driver from committing another DUI through threat of enhanced punishment. However, deterrence is punishment for double jeopardy purposes. Halper, 490 U.S. at 448. Substitution of the probationary license for the normal license is punishment in itself without regard to whether *880there ever is a subsequent DUI arrest, conviction, or enhanced penalty61 because it is a licensing status change for the sake of deterrence.
The concurring opinion cites multiple decisions from other jurisdictions essentially holding license suspensions and limitations are nonpunitive sanctions and, thus, do not constitute punishment for double jeopardy purposes. However, those cases may be generally distinguished because they involve administratively removing a driver from the road, or restricting his right to drive in some fashion, whereas the statute at issue changes the licensing status of the driver simply to threaten an enhanced criminal penalty for any subsequent DUI.62
A few cases hold an administrative suspension of one’s license to drive punitive for double jeopardy purposes, see, e.g., State v. Ackrouche, 70 Ohio Misc. 2d 34, 650 N.E.2d 535 (1995), however, such cases must be distinguished for the same reason!
Any double punishment violates double jeopardy
The majority opines that unless a sanction is solely for *881punishment, the sanction is outside the protection of the double jeopardy clause, citing Halper, 490 U.S. at 448. However this conclusion is not supported by the literal language of Halper, is inconsistent with other, and subsequent, United States and Washington Supreme Court precedents, and is overtly inconsistent with the constitutional text.
Halper states:
We have recognized in other contexts that punishment serves the twin aims of retribution and deterrence .... [I]t 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. . . . We therefore hold that under the Double Jeopardy Clause a defendant who already has been punished in a criminal prosecution may not be subjected to an additional civil sanction to the extent that the second sanction may not fairly be characterized as remedial, but only as a deterrent or retribution.
Halper, 490 U.S. at 448-49. (Emphasis added.) Halper holds a sanction not "solely remedial” is punishment for double jeopardy purposes. See Carlos F. Ramirez, Administrative License Suspensions, Criminal Prosecution, and the Double Jeopardy Clause, 23 Fordham Urb. L.J. 923, 927-38 (1996). Halper, read as a whole, demonstrates the Supreme Court is faithful to the spirit and meaning of the double jeopardy clause, which prevents double punishment even though one or both of those punishments may also be accompanied by other nonpunitive sanctions or goals. But the construction placed on this language by the majority would have the Supreme Court contradicting itself within the same paragraph. Further, the majority’s reading contradicts the plain meaning of the Halper text by ignoring the words "to the extent,” which support the proposition that unless the sanction is "solely to serve a remedial purpose” it is to that "extent” not remedial but punitive.
The majority’s claim that one may be subject to multiple punishments without violating the double jeopardy clause *882provided only there he at least some nonpunitive sanction imposed in addition to the punishment or, in the alternative, that the punishment might also promote a nonpuni-tive objective, is double-talk. The Fifth Amendment forbids multiple punishments without regard to motive and without regard to the additional imposition of nonpunitive sanctions.
Subsequent Supreme Court cases of Department of Revenue v. Kurth Ranch, 511 U.S. 767, 114 S. Ct. 1937, 128 L. Ed. 2d 767 (1994); Austin v. United States, 509 U.S. 602, 113 S. Ct. 2801, 125 L. Ed. 2d 488 (1993); and United States v. Ursery, 516 U.S. 267, 116 S. Ct. 2135, 135 L. Ed. 2d 549 (1996) deal with the same or related topics and are consistent with Halper.
Civil forfeiture cases distinguished
Austin and Ursery were both civil forfeiture63 cases arising from the Eighth Amendment prohibition against excessive fines. Thus, they arise in a different factual context and are analyzed under a completely separate and distinct constitutional clause. Nevertheless, each purports to discuss "punishment” for the purpose of the Eighth Amendment excessive fines clause.
Austin involved a civil forfeiture proceeding against a body shop and mobile home after the owner pleaded guilty to a drug offense. The government defended its action under the excessive fines clause, claiming the civil forfeiture was not "punishment” and thus could not be an excessive fine under the Eighth Amendment. Relying on Halper "that civil proceedings may advance punitive and remedial goals, and, conversely, that both punitive and remedial goals may be served by criminal penalties,” Austin, 113 S. Ct. at 2806 (citing Halper, 490 U.S. at 447), the Court held:
[T]he question is not, as the United States would have it, *883whether forfeiture under §§ 881(a)(4) and (a)(7) is civil or criminal, but rather whether it is punishment.
In considering this question, we are mindful of the fact that sanctions frequently serve more than one purpose. We need not exclude the possibility that a forfeiture serves remedial purposes to conclude that it is subject to the limitations of the Excessive Fines Clause. We, however, must determine that it can only be explained as serving in part to punish.
Austin, 113 S. Ct. at 2806 (emphasis added). Austin therefore seems to apply the Halper double jeopardy analysis to the excessive fines clause.
Later Austin restates the same point: "Fundamentally, even assuming that §§ 881(a)(4) and (a)(7) serve some remedial purpose, the Government’s argument must fail.” Id. at 2812. Austin therefore relies upon the same language in Halper which is relied upon by the respondents here, but in a forfeiture context. It emphasizes in footnote 14 that the nature of the inquiry is whether the sanction is "simply” or "purely” remedial (in which case it is not a punishment) or whether it has any punitive characteristics (in which case it must be considered a punishment for the purpose of the excessive fines clause).
In Ursery a majority of the United States Supreme Court held civil forfeiture, an in rem proceeding, cannot be punishment for the purpose of the double jeopardy clause of the United States Constitution although it may be excessive for the purpose of the excessive fines clause. But for a "fine” to be excessive it must first be a fine—and Ursery holds forfeitures are not fines. This may be debatable; however, it does not purport to affect the Court’s previously established double jeopardy analysis.
While careful to distinguish civil forfeitures from all other types of sanctions, a footnote to the majority opinion discusses the Halper case in the context of Justice Stevens’s dissenting opinion. Ursery, 116 S. Ct. at 2145 n.2. There the Court observed:
Whether a particular sanction "cannot fairly he said solely to *884serve a remedial purpose” is an inquiry radically different from that which we have traditionally employed in order to determine whether, as a categorical matter, a civil sanction is subject to the double jeopardy clause . . ..If the "general rule” of Justice Stevens were 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.
The context of the footnote suggests the Court was primarily interested in stating even if civil forfeitures are purely or partially punitive that does not subject them to double jeopardy analysis in any event. In dissent Justice Stevens disagreed. Even so, it is clear the majority distinguished forfeitures from all other types of sanctions, drawing a "sharp” distinction between in rem forfeiture and in personam civil penalties.64 Ursery, 116 S. Ct. at 2141-42.
Punitive civil sanction cases
Kurth Ranch addressed the double jeopardy question directly in the context of a nonforfeiture Montana tax on illicit drugs. It is the seminal case because it is the United States Supreme Court’s last word on the subject at hand. The issue in Kurth was whether or not the tax "has punitive characteristics that subject it to the constraints of the Double Jeopardy Clause.” Kurth, 114 S. Ct. at 1945 (emphasis added). The Court found it did and applied double jeopardy to bar the parallel criminal charges.
As in Kurth, the like question here is whether this probationary license status has any punitive characteristics. If so it is punishment for double jeopardy purposes, *885and the DUI charges must be dismissed. See also United States v. Hudson, 14 F.3d 536 (10th Cir. 1994).65
Both the concurrence to the majority and the concurrence to this dissent argue an inconsistency between the Supreme Court’s analysis in Ursery and the Supreme Court’s analysis in Halper and Kurth, and thus claim the Ursery analysis should be followed in the case at bar because Ursery is the most recent of the three. Citing language in Ursery to the effect that an excessive fines clause analysis in the Austin forfeiture case should not be "imported” into double jeopardy cases not involving forfeiture or excessive fines, Concurrence at 870 n.55 (citing Urs-ery, 116 S. Ct. at 2147), the concurrence suggests the dissenting opinion does not follow Ursery because "the dissent evidently believes the Supreme Court is wrong [in Ursery] . . . .” This misses the point.
Whether or not the Supreme Court dropped the ball in Ursery (and there is substantial scholarly comment to that effect)66 is not material to the resolution of this case because Ursery was a forfeiture case decided under the excessive fines clause of the Eighth Amendment whereas the case at bar must be decided under the double jeopardy *886clause of the Fifth Amendment, as construed by Halper and Kurth Ranch. As stated in Gustafson, 668 N.E.2d at 442 n.2 (relied upon by the concurrence at 873): "Ursery does not control disposition of these [licensing] causes before us, which do not involve interim forfeitures . . .
State cases on double jeopardy
State v. Clark, 124 Wn.2d 90, 98, 100, 875 P.2d 613 (1994) applied a double jeopardy standard to forfeiture facts. The question there was whether or not a civil forfeiture statute in combination with criminal sanctions violated state or federal prohibitions against the imposition of double jeopardy. A unanimous court held, "[A] forfeiture statute must be solely remedial to escape characterization as 'punishment’ under the federal double jeopardy clause.” Clark, 124 Wn.2d at 98. Clark construed Austin to hold "[i]f the civil forfeiture statute is at all punitive, it is to be deemed 'punishment.’ ” Clark, 124 Wn.2d at 100. A majority of this court arguably reached the same result in State v. Cole, 128 Wn.2d 262, 295, 297, 300, 906 P.2d 925 (1995) wherein it construed Austin and Clark to require a double jeopardy analysis unless the sanction "serves solely a remedial purpose.” Cole, 128 Wn.2d at 295 (Johnson, J., dissenting).67
Whether Clark and Cole are consistent with Ursery’s federal (not state) forfeiture analysis remains to be seen; however, clearly these cases facially define the punishment standard for double jeopardy purposes—which is the issue presented by this case.
I conclude that this probationary license is wholly punitive, and nothing else. It does not revoke or limit the licensed driver’s privilege to drive but is there to deter a subsequent DUI by enhancing the applicable mandatory minimum jail time. If that isn’t punishment, what is? *887Even if there were also nonpunitive aspects, double jeopardy would still bar the criminal prosecution. I dissent.
Compare RCW 46.61.5051 (repealed by Laws 1995, ch. 332, § 21), Alcohol violator with regular license—penalties with RCW 46.61.5052 (repealed by Laws 1995, ch. 332, § 21), Alcohol violator with probationary license—penalties. Under the 1994 statutory scheme, a driver with a "regular” nonprobationary license and no DUI convictions within the past five years and whose breath test exceeded .10 but was below .15, faced a mandatory one-day minimum in jail and a ninety-day license suspension. Under similar circumstances, a driver with a probationary license faced a mandatory seven days in jail and a one-year license revocation, even if it was a first conviction. The probationary license lasted for a period of five years from the date the probationary status was imposed. RCW 46.20.355(2), RCW 46.61.5051(4) (repealed by Laws 1995, ch. 332, § 21). The probationary license status continued whether or not there were DUI charges, much less a DUI conviction.
The concurrence states . . the probationary status complained of in the present case imposes no immediate sanction whatsoever on the licensee, and cannot possibly be considered punishment.” Concurrence at 874.1 disagree. The "immediate sanction” is revocation of the standard license and substitution of the probationary license. This substitution is punishment because its purpose is deterrence.
The concurrence cites State v. Gustafson, 76 Ohio St. 3d 426, 668 N.E.2d 435 (1996) for the proposition that a "civil sanction imposed as a result of administrative license suspension proceeding was not punishment for double jeopardy purposes.” Concurrence at 873. Gustafson must be distinguished because it involves an immediate license suspension which removes the driver from the road. Nevertheless, the opinion affirmatively adds even a summary sanction may not continue beyond the DUI trial, for to do so would violate the constitutional double jeopardy prohibition against multiple punishments for the same oifense. ("We therefore hold that an administrative license suspension ceases to be remedial and becomes punitive in nature to the extent it is deemed to continue subsequent to conviction and sentencing for violation of [the DUI statute].” 668 N.E.2d at 448.) I note the probationary license at issue here survives the trial (whatever the result) for five years. RCW 46.20.355(2), RCW 46.61.5051 (repealed by Laws 1995, ch. 332, § 21). Therefore it not only violates double jeopardy but even continues to punish those who are acquitted for the alleged predicate criminal conduct.
Cf. Roger Pilon, Can American Asset Forfeiture Law Be Justified?, 39 N.Y.L. Sch. L. Rev. 311 (1994) (forfeiture in general has gotten out of hand).
By its own terms, Ursery is clearly limited to in rem civil forfeiture cases. "Halper dealt with in personam civil penalties under the Double Jeopardy Clause; Kurth Ranch with a tax proceeding under the Double Jeopardy Clause. . . . None of those cases dealt with the subject of this case: in rem civil forfeitures for purposes of the Double Jeopardy Clause.” Ursery, 116 S. Ct. at 2147, 135 L. Ed. 2d at 567-68.
"[I]f a particular remedial sanction can only be understood as also serving punitive goals, then the person subjected to the sanction has been punished despite that fact that the sanction is also remedial. To conclude otherwise effectively invalidates the Double Jeopardy Clause by allowing multiple punishments for the same conduct merely because the punishments also serve remedial purposes. We therefore must conclude that if a sanction is not exclusively remedial, but rather can only be explained as also affecting deterrence or retribution, it is punishment for double jeopardy analysis.”
Hudson, 14 F.3d at 540.
See, e.g., Jeffrey Steinborn, United States v. Ursery; United States v. $405,098.23: Supreme Court closes double jeopardy door, Wash. Crim. Def. 10,11 (Nov. 1996) ("[Rjead the Ursery opinion. I recommend some form of sedation as a prelude. But if you want to know what it means, that’s simpler The Supreme Court has indulged the government and given it carte blanche to loot.”); Roger Pilón, Forfeiting Reason, 3 Regulation 15, 18 (1996) (the reasoning of Ursery opinion is result-oriented, circular, and incoherent); cf. Pilón, supra note 4; Donald Dripps, The Exclusivity of the Criminal Law: Toward a 'Regulatory Model” of, or "Pathological Perspective” on, the Civil-Criminal Distinction, 7 J. Con-temp. Legal Issues 199 at n.64 (1996) (the departure taken from existing law by Michigan v. Bennis, 116 S. Ct. 1560 (1996) and Ursery is mistaken).
See Andrew L. Subin, The Double Jeopardy Implications of In Rem Forfeiture of Crime-Related Property: The Gradual Realization of a Constitutional Violation, 19 Seattle U. L. Rev. 253, 262 (Winter 1996) ("A nominally civil sanction, an in rem forfeiture, or a tax, [or a license probation] is punitive unless it serves a solely remedial purpose.”)