City of Helena v. Danichek

NO. 95-394
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996

CITY OF HELENA,
Plaintiff and Respondent,
v.

Defendant and Appellant

APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark,
The Honorable Dorothy McCarter, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Edmund F. Sheehy, Jr. (argued),
Cannon & Sheehy, Helena, Montana
For Respondent:
Hon. Joseph P. Mazurek, Attorney General,
Brenda Nordlund (argued), Assistant Attorney
General, Helena, Montana
Robert Wood, Assistant City Attorney,
Helena, Montana
For Amicus Curiae:
Steve Fletcher (argued), Bulman Law Associates,
Missoula, Montana

Submitted: June 25, 1996
Decided: August 20, 1996
Filed:

Clerk/
Justice Charles E. Erdmann delivered the opinion of the Court.
Appellant Frank Danichek appeals from an order entered by the
First Judicial District Court, Lewis and Clark County, denying his
motion to dismiss the charge of driving under the influence of
alcohol on double jeopardy grounds. We affirm.
The issue on appeal is whether the District Court erred in
denying Danichek's motion to dismiss based on his claim that the
Double Jeopardy Clause of both the United States and Montana
Constitutions prohibits him from being criminally prosecuted for
operating a motor vehicle under the influence of alcohol following
the suspension of his driver's license for refusing a breathalyzer
test.
FACTS
The facts are not in dispute. In December 1994, Danichek was
arrested in Helena for driving under the influence of alcohol.
Following his arrest, Danichek refused a law enforcement officer's
request that he submit to a breathalyzer test. As a result,
Danichek's driver's license was seized and suspended for a period
of ninety days pursuant to § 61-a-402, MCA (1993), Montana's
implied consent law. Danichek was subsequently convicted in City
Court for operating a motor vehicle under the influence of alcohol
pursuant to § 61-E-401, MCA (1993). He then appealed his
conviction to the District Court and moved the court to dismiss the
DUI charge claiming that the Double Jeopardy Clause prohibited

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criminal prosecution since he had already been punished by the loss
of his driver's license.
The District Court entered a decision and order denying the
motion to dismiss. Danichek then filed a motion for a change of
plea pursuant to 5 46-12-204(3), MCA, which allowed him to enter a
conditional plea of guilty to the DUI charge and preserve his right
to appeal the District Court's denial of his motion to dismiss.
The District Court accepted Danichek's conditional guilty plea and
sentenced him accordingly. The court then stayed execution of the
sentence pending this Court's resolution of Danichek's double
jeopardy claim. This appeal followed.
STANDARD OF REVIEW
This Court has recently stated that the grant or denial of a
motion to dismiss in a criminal case is a question of law. State
v. Hansen (1995), 273 Mont. 321, 323, 903 P.2d 194, 195. The
standard of review of a district court's conclusion of law is
plenary and we will review it to determine whether the conclusion
of law is correct. Hansen, 903 P.2d at 195 (citing State v.
Rushton (1994), 264 Mont. 248, 255, 870 P.2d 1355, 1359).
DISCUSSION
We have recently stated that the Double Jeopardy Clause of the
Fifth Amendment of the United States Constitution protects against
three distinct abuses: (1) a second prosecution for the same
offense after acquittal; (2) a second prosecution for the same
offense after conviction; and (3) multiple punishments for the same

3
offense. State v. Nelson (Mont. 1996), 910 P.Zd 247, 250, 53
St. Rep. 50, 51. It is the multiple punishments prohibition of the

Double Jeopardy Clause which is implicated in the present case.

The Double Jeopardy Clause has been made applicable to the

states through the Fourteenth Amendment. Nelson, 910 P.2d at 250

(citing Benton v. Maryland (1969), 395 U.S. 784, 89 S. Ct. 2056, 23

L. Ed. 2d 707; State v. Cole (1987), 226 Mont. 377, 744 P.2d 526).

Danichek claims no greater protection from double jeopardy under

the Montana Constitution, Article II, Section 25, than under the

federal constitution. Accordingly, in this case we shall treat the

protections from double jeopardy afforded under both our state and
the federal constitutions as co-extensive and will refer to both

clauses collectively in the singular.

Danichek relies on recent United States Supreme Court

decisions in Montana Department of Revenue v. Kurth Ranch (1994),

511 U.S. __, 114 s. ct. 1937, 128 L. Ed. 2d 767, and United States

v. Halper (1989), 490 U.S. 435, 109 S. Ct. 1892, 104 L. Ed. 2d 487,
and this Court's post-Halner decision in Stuart v. Department of

Social and Rehabilitation Services (1993), 256 Mont. 231, 846 P.2d

965, to argue that the criminal DUI prosecution is barred because

he has already been punished by having his driver's license

suspended. He challenges prior Montana case law holding that the

suspension of a driver's license pursuant to the implied consent

law protects the public rather than punishes the driver and

maintains that the license suspension must be deemed punishment

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because it is a detriment or other coercive intervention annexed to
a violation of the law which provides a means to enforce the DUI

statute.
The State argues that suspension of a driver's license
following refusal to submit to a breathalyzer test does not
constitute "punishment" for double jeopardy purposes and further
argues that 55 61-8-401 and -402, MCA (1993), are not the same
offense. The State also claims that the record does not indicate
whether the license suspension engendered a "separate proceeding"
necessary to even place Danichek in jeopardy and trigger a double
jeopardy analysis.
In Kurth, Montana law enforcement officers raided the farm of
the Kurth family and confiscated and destroyed their marijuana
plants. The Kurths pled guilty to the drug charges and also
forfeited over $18,000 in cash and equipment as a result of a civil
forfeiture action filed by the State. The Montana Department of
Revenue then attempted to collect a state tax imposed on the
possession and storage of dangerous drugs pursuant to Montana's
Dangerous Drug Tax Act. The Kurths filed for bankruptcy and
challenged the constitutionality of the drug tax. The Bankruptcy
Court held that the tax assessment, which resulted in a tax eight
times the product's market value, was a form of double jeopardy
invalid under the federal constitution. The District Court
affirmed the decision and stated that the drug tax simply punished
the Kurths a second time for the same criminal conduct. See In re

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Kurth Ranch, CV-90-084-PGH, 1991 WL 365065 (D. Mont., Apr. 23,
1991) (reprinted at App. to Pet. for Cert. 22). After the Court of
Appeals for the Ninth Circuit affirmed the District Court, the U. S.

Supreme Court granted certiorari and framed the issue as follows:
This case presents the question of whether a tax on
the possession of illegal drugs assessed after the State
has imposed a criminal penalty for the same conduct may
violate the constitutional prohibition against successive
punishments for the same offense.
Kurth, 114 S. Ct. at 1941 (emphasis added). The Supreme Court held
that the proceeding Montana initiated to collect the drug tax was
the functional equivalent of a successive criminal prosecution that
placed the Kurths in jeopardy a second time for the same offense.
Kurth, 114 S. Ct. at 1948.
Five years prior to Kurth, the U.S. Supreme Court decided
Halper. Halper had falsified Medicare forms to obtain overpayment
in the amount of $585. The government successfully prosecuted
Halper for fraud and he was fined and sentenced to prison. At the
conclusion of the criminal proceeding, the government commenced an
action for a statutory civil penalty under the False Claims Act
which would have imposed an additional fine in the amount of
$130,000. The issue before the Court was whether and under what
circumstances a civil penalty may constitute punishment for
purposes of double jeopardy analysis. Haloer, 490 U.S. at 436.
The Court concluded that double jeopardy protections prohibit
subjecting a defendant who has been punished in a criminal
prosecution to an additional civil sanction to the extent the

6
second sanction may not fairly be characterized as remedial, but
only as a deterrent or retribution. Halter, 490 U.S. at 449. The
Court held that the imposition of the full statutory amount

violated double jeopardy protections by punishing Halper a second

time for the same conduct for which he had been convicted. Haloer,
490 U.S. at 451.

In Stuart, this Court relied on Halper to address the issue of

whether a civil sanction existed which would trigger a double

jeopardy analysis. Two former employees of the Department of

Social and Rehabilitation Services (SRS) who had been convicted and

sentenced for criminal mischief sought to collect their accrued

vacation benefits and the question was whether SRS's refusal to pay

out the benefits violated double jeopardy protections. Stuart, 846

P.2d at 966. We held that SRS's refusal to compensate appellants

for the accrued vacation benefits was not annexed to a violation of

any law and therefore did not constitute a civil sanction in

violation of double jeopardy protections. Stuart, 846 P.2d at 969.

We distinguished Haloer by noting that in that case Halper's

conduct violated two separate laws--one criminal and one civil--and

the government sought to enforce both in separate proceedings.

Stuart, 846 P.2d at 969.

It is necessary at this point to focus our analysis. The

parties dispute whether or not the license suspension constitutes

"punishment" for double jeopardy purposes and whether the

suspension engenders a "separate proceeding" to trigger double
jeopardy analysis. HOWeVer, we determine that the dispositive
question in this case is whether Danichek's license suspension
resulted from the "same offense" for which he was subsequently
criminally prosecuted. A possible double jeopardy violation could
have occurred only if we answer that question in the affirmative.l
The State argues that Danichek violated two different
offenses, 55 61-E-401 and -402, MCA (1993). The State relies on
the "same elements" test set forth in Blockburger v. United States
(1932), 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306, and maintains
that different elements exist for the two offenses. The State
argues that each statute requires proof of facts which the other
does not and asserts that multiple punishments for different
offenses is constitutionally permissible.
This Court has employed the Blockburser test in the past to
determine whether a defendant can be charged and convicted of
violating two different statutes for the same act or transaction.

1 While we focus on whether or not the actions taken against
Danichek were the result of the "same offense," it is important to
note that in United States v. Ursery (U.S. June 24, 1996), Nos.
95-345 and 95-346, the U.S. Supreme Court recently clarified its
holdings in Halper and Kurth. The Court set forth a two-stage
analysis to determine if a civil forfeiture proceeding is by nature
criminal and punitive or civil and remedial. First, the Court
looked to Congress's intent to determine whether such proceedings
had traditionally been viewed as civil proceedings; whether such
proceedings reached a broader range of conduct than their criminal
analogue; and whether such proceedings furthered broad remedial
aims. Second, the Court looked to whether the statutory scheme was
so punitive either in purpose or effect as to negate Congress's
intention to establish a civil remedial mechanism which balances
the government's harm against the size of the penalty. Urserv,
Nos. 95-345 and 95-346, slip op. at 9.
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State v. Crowder (1991), 248 Mont. 169, 178, 810 P.2.d 299, 305.
Typically, however, the Blockburaer test has been applied to the
situation where two criminal statutes have been violated. See
State v. Wolfe (1991), 250 Mont. 400, 821 P.2d 339; State v.
Clawson (1989), 239 Mont. 413, 781 P.2d 267; State v. Peterson
(1987), 227 Mont. 503, 741 P.2d 392. In the present case, the
license suspension is a civil proceeding and the DUI offense is a
criminal violation. In that context, we conclude that the
Blockburser test is not appropriate. The elements of a civil and
criminal statute will invariably differ and a potential double
jeopardy violation may not be detected by the Blockburaer test.
Here, in order to determine whether the action taken against
Danichek was for the "same offense," we will focus on whether the
license suspension and DUI prosecution were for the same conduct.
Danichek acknowledges that he violated two statutory offenses.
However, he claims that his license suspension and DUI prosecution
were the result of the same conduct. He argues that § 61-8-402,
MCA, does not become operative until a person has been arrested for
driving under the influence in violation of 5 61-8-401, MCA. Thus,
according to Danichek, both the implied consent law and the DUI
statute are violated when a person refuses to submit to a
breathalyzer test. He maintains that the license suspension was a
detriment for not complying with the implied consent law and that
since it and the DUI prosecution were based on the same conduct,
his double jeopardy rights were violated. We disagree.

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 Danichek violated 5 61-8-402, MCA (1993), by refusing the
police officer's request to submit to a breathalyzer test. He
violated § 61-8-401, MCA (1993), by driving a vehicle upon the
public ways of the state while under the influence of alcohol. The
conduct that triggered the violation of § -402 was separate and
distinct from the conduct that triggered the violation of § -401.
Danichek exhibited two different courses of conduct and committed
two different offenses. Danichek's argument that the implied
consent law only becomes operative when a DUI violation occurs is
shortsighted. A person who violates § -402 has his or her license
immediately suspended regardless of whether or not he or she is
subsequently convicted of the DUI violation. The license
suspension is imposed for refusing the sobriety test and not for
the DUI offense.
Moreover, the facts of this case are distinguishable from
those presented in Kurth and Haloer. In both those cases, the
civil sanction and criminal prosecution were the result of one
course of conduct by the defendant. In Kurth the conduct was the
possession and storage of dangerous drugs, and in Halver the
conduct was falsification of Medicare forms. The same conduct
triggered the criminal prosecutions and civil sanctions in both
Kurth and Halter, and Danichek's reliance on them is therefore
misplaced. The offense for which Danichek's driver's license was
suspended was a separate and distinct offense from the DUI charge
since each violation was based on different conduct. Thus,

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Danichek's claim that he received multiple punishments for the
"same offense" must fail. We determine it is unnecessary to rule
on whether the license suspension constitutes "punishment" and/or
engenders a "separate proceeding" for double jeopardy purposes.
We hold that the District Court did not err in denying
Danichek's motion to dismiss and that the court correctly
interpreted the law when it concluded that Danichek's
constitutional guarantee against double jeopardy was not violated.
Affirmed.

Justice
We concur:
Justice James C. Nelson specially concurs

I concur in our opinion. It is unfortunate, however, that we
are not able to also ground our decision in what most courts agree

is an even stronger argument for rejecting the double jeopardy

challenge at issue here. Accordingly, I write separately to point
out that because of a peculiar requirement of Montana's implied

consent law, one of the most recognized, obvious and common sense

rationales for upholding the operation of this statute against a
double jeopardy challenge is unavailable or is, at least, highly

questionable.
Other state and federal jurisdictions that have upheld the

administrative seizure, suspension or revocation of a driver's

license incident to an alcohol or drug-impaired driving violation
and chemical-test refusal have done so on the basis that the

administrative suspension of driving privileges is not

"punishment." Rather, with almost near unanimity, courts have

focused their analysis on the non-punitive, remedial nature of
administrative license suspensions. See, e.g. State v. Oliver

(N.C. 1996), 470 S.E.2d 16; Luk v. Corn. (Mass. 1995), 658 N.E.2d

664, and the numerous cases collected therein.

This rationale is best explained in these two decisions.

An impaired driver presents an immediate, emergency
situation, and swift action is required to remove the
unfit driver from the highways in order to protect the
public. We do not pretend to ignore that a driver's
license revocation, even of short duration, may, for
some, have a deterrent effect. . . [Although] any
deterrent effect a driver's license revocation may have
upon the impaired driver is merely incidental to the
overriding purpose of protecting the public's safety.

Oliver, 470 S.E. 2d at 21.

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 The suspension serves to deter persons from driving while
intoxicated; it effectuates the Commonwealth's interest
in obtaining reliable and relevant evidence by inducing
suspected drunk drivers to take the breath test; and it
promotes safety on the highways by summary removal of
dangerous drivers.

Luk
-I 658 N.E.Zd at 671.

In the instant case, the State argues these same remedial

objectives as justification for holding that double jeopardy is not

implicated by both suspending the impaired driver's license for

refusal to submit to a chemical test and prosecuting him or her for

DUI. Montana's implied consent law, 5 61-S-402, MCA, actually
militates against that argument, however.

Under § 61-S-402(3), MCA, if a suspected driver refuses the

peace officer's request to submit to the designated test or tests

the officer must "immediately seize the person's driver's license

. . [and] . . . forward the license to the department" which is
then obligated to suspend the license for a designated period of

time. Section 61-S-402(4), MCA, however, provides that 1( [ulpon

seizure of a driver's license [on refusal to take the chemical

test], the peace officer shall issue . . . a temporary driving

permit, which is valid for 5 days following the date of issuance."
(Emphasis added.)

In other words, in Montana, despite the fact that a driver is
driving while intoxicated; despite the fact that a peace officer

has reasonable grounds to arrest the driver for DUI; despite the
fact that the driver refuses to take a chemical test of his blood,

breath or urine under the implied consent law; and despite the fact

that the officer immediately seizes the driver's license pursuant

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to that statute, under the same statute the arresting officer must,
while seizing the license with one hand, issue an immediately-
effective temporary 5-day driving permit with the other.

While liability implications and common sense would seem to

make it inconceivable that a drunk driver actually would be issued

a temporary permit as he leaves the stationhouse and that, in

theory, he could simply get back in his vehicle and continue to

drive while intoxicated (although being subject to re-arrest), that

is exactly what § 61-8-402(3) and (4), MCA, allow, and, in fact,
mandate.

Worse, at oral argument, Danichek convincingly argued that is

exactly what happens on occasion. Under such circumstances, as

Danichek correctly points out, it is absurd to maintain that

immediate seizure of the impaired driver's license under Montana's
implied consent law serves the remedial purpose of summarily

removing the impaired driver from the road, thus, protecting the

public safety, if that same drunk driver is also immediately issued
a temporary driver's permit as he leaves the police station and

before he even sobers up.
Moreover, the government and the police should not be

subjected to the sort of potential civil liability that is inherent

in this statutory scheme. Under the very statute enacted to

protect public safety, the arresting officer should not also, by

law, be required to issue an intoxicated driver what may turn out

to be a temporary license to kill.

This anomaly can be 'easily corrected legislatively; and,

obviously, it should be. Section 61-E-402(4), MCA, should be

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amended to provide that the temporary permit issued will not become

effective until after a period of time long enough to allow the
impaired driver to regain his or her sobriety. Other states that
allow for the issuance of a temporary driver's license following an

administrative seizure for failure to take a chemical test follow

this approach. For example, Massachusetts allows a fifteen day

temporary license to issue effective twelve hours after issuance.

See Luk, 658 N.E.2d at 670.
I believe that the legislature intended that the operation of

Montana's implied consent statute serve the remedial purposes set

forth above. I do not agree with Danichek that the purpose of this

statute is punishment. Section 61-a-402, MCA, should be amended as
suggested to remove any doubt and any question concerning its non-

punitive objectives.

Chief Justice J.A. Turnage and
William Leaphart join in the foregoing special c

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