dissenting.
The majority distinguishes this case from Kvitka v. Board of Registration in Medicine, 407 Mass. 140, 551 N.E.2d 915 (1990), cert. denied 498 U.S. 823, 111 S. Ct. 74, 112 L. Ed. 2d 47, by stating that “there was no indication in the record *361or in the text of the statute that the purpose of the $10,000 fine was remedial,” and by finding that the board of registration “made clear its intent to punish the physician by imposing its $10,000 fine” through its statement of intolerance for professional misconduct. These factors do not counsel in favor of distinction. Neither the record nor the text of Neb. Rev. Stat. § 71-155 (Cum. Supp. 1994) indicates any remedial purpose behind the $10,000 fine, and, in fact, the text of the statute is as telling as the Kvitka board’s statement that a punitive purpose underlies the fines in both cases.
The text of the provision for the $10,000 fine in § 71-155 reads as follows:
Upon the completion of any hearing held under this section, the director shall have the authority through entry of an order to exercise in his or her discretion any or all of the following powers, irrespective of the petition:
(5) Impose a civil penalty not to exceed ten thousand dollars. The amount of the penalty shall be based on the severity of the violation.
The text of this provision does not specify any mechanism for applying the windfall of the $10,000 fine to expenses of any sort. In fact, nowhere in the text of this provision does the Legislature indicate that the fine is meant to compensate, as the majority theorizes, for “investigative or prosecutorial expenses.” The text ties the imposition and amount of the fine to one and only one factor: the severity of the offense. There is no “rational relation” between the provision for the fine and any ostensible costs to society as required by United States v. Halper, 490 U.S. 435, 109 S. Ct. 1892, 104 L. Ed. 2d 487 (1989), and the statute in fact makes no provision whatsoever for even establishing costs to society.
The inclusion of a $10,000 fine in this otherwise remedial statute is analogous to a provision that would allow the Nebraska Department of Motor Vehicles to fine a driver $10,000 under Nebraska’s administrative license revocation statutes: the fine substantially changes the character of the statute and calls into question its ostensibly remedial purpose. *362The Kvitka court acknowledged the gap between “remedial” and “punitive” that impugns § 71-155 in this case:
This is not a case where the government itself has. suffered a loss because of the physician’s fraud, cf. United States v. Halper, supra, or where there is an identifiable victim who has suffered damages due to the physician’s actions. The only remedial aspect of the fine in this case would have been to reimburse the board for the expenses in handling the administrative matter against the physician. But the board, in its decision, did not base the fine on its administrative expenses.
407 Mass. at 146, 551 N.E. 2d at 918-19. The same can be said of the $10,000 fine with which Wolf was threatened in this case.
Under the U.S. Supreme Court’s decision in Halper and this court’s decision in State v. Hansen, 249 Neb. 177, 542 N.W.2d 424 (1996), cert. denied No. 95-8782, 1996 WL 226750 (U.S. June 10, 1996), a civil penalty must bear a “rational relation” to the costs to society of the violation and must not appear “to qualify as ‘punishment’ in the plain meaning of the word.” 249 Neb. at 185, 542 N.W.2d at 430 (quoting Halper, supra). The provision for a $10,000 fine cannot pass muster under this standard. Even the State has not tried to defend the fine as remedial in nature. It is difficult to fathom how this penalty addresses the cost to society of Wolf’s misconduct, except in the sense that the threat of its imposition serves as both a specific and a general deterrent — and under Halper and Hansen, when a sanction “may not fairly be characterized as remedial, but only as a deterrent or retribution,” the sanction constitutes “punishment,” 249 Neb. at 185, 542 N.W.2d at 430 (quoting Halper, supra), and thereby triggers double jeopardy protections.
As in Halper, there is no logical connection between this fine and the goal of remedying the cost to the State or society created by Wolf’s misconduct. The absence of such a quantification leads me to conclude that the provision in § 71-155 for a $10,000 fine is, unlike license revocation, not rationally related to the goal of making society whole. See, e.g., Halper, supra. When the purpose of a statutory provision cannot fairly *363be characterized as remedial, but only as a deterrent or retribution, and when a citizen is subject to the full force of that statute, then the citizen is subject to “punishment” within the meaning of Halper and Hansen.
Indeed, the State conceded at oral argument that the $10,000 fine has no remedial purpose. Its only defense of the fine was the fact that Wolf was not actually subjected to the $10,000 fine when the settlement agreement was finalized at the conclusion of the proceedings before the director of the Nebraska Department of Health. In response to this court’s questions, the State asserted — and the majority agrees today— that we need be concerned only with the sanction actually imposed and not with the sanctions Wolf faced before the director of the Department of Health passed judgment. This assertion, however, conflicts with the U.S. Supreme Court’s interpretation of the text of the Fifth Amendment.
In confining its analysis to exclusively whether Wolf was actually punished twice, the majority opinion overlooks other prohibitions of the Double Jeopardy Clause. The Double Jeopardy Clause provides that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” (Emphasis supplied.) U.S. Const, amend. V. The U.S. Supreme Court has explained that “ ‘the Clause serves the function of preventing both successive punishment and successive prosecution,’ ” Witte v. U.S.,_U.S._, 115 S. Ct. 2199, 2204, 132 L. Ed. 2d 351 (1995), and that “the Constitution was designed as much to prevent the criminal from being twice punished for the same offence as from being twice tried for it,” Ex parte Lange, 85 U.S. (18 Wall.) 163, 173, 21 L. Ed. 872 (1874).
The language of the Double Jeopardy Clause thus protects against more than the actual imposition of two punishments for the same offense; by its terms, it protects a criminal defendant from being twice put in jeopardy for such punishment. Witte v. U.S., supra; Price v. Georgia, 398 U.S. 323, 90 S. Ct. 1757, 26 L. Ed. 2d 300 (1970). In Price, the petitioner challenged efforts by the state to convict him for murder after his conviction for a lesser-included offense had been reversed on appeal. The Supreme Court, in finding that the petitioner *364could not be retried for the greater-included offense, held that the Double Jeopardy Clause “is cast in terms of the risk or hazard of trial and conviction, not of the ultimate legal consequences of the verdict.” 398 U.S. at 331. Whether he is convicted, acquitted, or convicted of a lesser offense than that with which he was originally charged, an accused is equally put in jeopardy the first time he faces punishment by the state. See United States v. Ball, 163 U.S. 662, 16 S. Ct. 1192, 41 L. Ed. 300 (1896).
The Supreme Court has found that a tribunal whose purpose is essentially remedial can hold proceedings which are essentially criminal, thus triggering Double Jeopardy Clause protections. In Breed v. Jones, 421 U.S. 519, 95 S. Ct. 1779, 44 L. Ed. 2d 346 (1975), the Court heard the appeal of a minor who had been tried as an adult in state court following a juvenile court adjudicatory finding that he had violated a criminal statute, and a subsequent finding that he was unfit for treatment as a juvenile and would not be punished or otherwise sanctioned by the juvenile court. The minor argued that he was placed in former jeopardy at the juvenile court adjudicatory hearing, whose object was to determine whether he had committed acts that violated a criminal law and whose potential consequences included both the stigma inherent in that determination and the deprivation of liberty.
The Supreme Court agreed and vacated the minor’s state court conviction, holding that even if the state were correct in asserting that the minor faced only one punishment, the Double Jeopardy Clause is violated when an accused twice faces the risk of trial and conviction: “Jeopardy denotes risk. ” 421 U.S. at 528. The state had contended that the genesis of the juvenile court system was in the need to provide a distinct procedure and setting to rehabilitate troubled youths, rather than to punish criminally, and that as such the policies prohibiting double jeopardy were unconcerned. The truth of this contention, however, did not answer whether the minor was placed in former jeopardy, given the gap that had grown “between the originally benign conception of the system and its realities.” 421 U.S. at 528.
*365Regardless of the type of proceeding, the minor in Breed was subjected to the burden of two trials for the same offense, was twice put to the task of marshaling his resources against those of the state, and was twice subjected to the “ ‘heavy personal strain’ which such an experience represents” — all in violation of the letter and spirit of the Double Jeopardy Clause. 421 U.S. at 533. That emphasis on the substance of a proceeding, rather than on the form, is consistent with the Supreme Court’s later decision in Halper, that relying on “civil” or “criminal” labels is not the dispositive means to ascertain whether a penalty is punishment. If one may be punished in a civil proceeding under Halper, then jeopardy must attach in a proceeding where one faces the risk of punishment by the state, even if the proceeding is civil by legal taxonomy.
In this case, the complaint against Wolf included violations of criminal laws prohibiting possession of a controlled substance, and the findings of fact on those issues at the Department of Health proceedings could be considered probative in the subsequent criminal prosecution under Neb. Rev. Stat. § 28-416 (Cum. Supp. 1994). In affirming the denial of Wolf’s plea in bar, the majority subjects Wolf, like the minor in Breed, to two prosecutions with potential punitive consequences for the same offenses; he will be twice forced to marshal his resources against those of the State in . an effort to avoid punishment and would be twice subjected to the “heavy personal strain” which the experience represents. Like the adjudicatory hearing in Breed, the object of the proceedings before the director of the Department of ’Health was to determine whether Wolf had committed acts that violated a criminal law, and its potential consequences included both the stigma inherent in that determination and the deprivation of up to $10,000. Although the genesis of license revocation proceedings may well be in the remedial purpose reflected in most of § 71-155, the $10,000 fine is by the State’s concession a hammer for the State rather than a remedy for a loss. The reality of,these proceedings is thus detached from their original conception by the fact that, through the provision for a $10,000 fine, the director of the Department of Health has the power to punish.
*366Wolf was twice charged with violations of § 28-416 and twice put in jeopardy of punishment by the State. Were Wolf to face only a remedial sanction for his violation of these laws before the Department of Health, the State would be permitted to seek punitive sanctions in its criminal proceeding. Because Wolf did face a purely punitive sanction before the Department of Health however, the text of the Fifth Amendment, as interpreted in Breed, should estop the State from seeking punishment a second time after Wolf settled for a lesser sanction in the first proceeding.
The majority suggests that the true purpose of the $10,000 fine cannot be known until the director imposes it as a consequence for professional misconduct. Thus, under the majority’s reasoning, in any case wherein a penalty is not “criminal” by name, the State can successfully defend against a plea in bar by claiming that it cannot know whether the penalty is punitive until it is imposed — irrespective of why it seeks the imposition of that particular penalty. In other words, the majority has found that double jeopardy protections are triggered only after the State actually takes life, liberty, or property. This absurd result vitiates the Fifth Amendment bars against being “twice put in jeopardy” — not just against multiple punishments, but also against multiple prosecution. The framers of the Fifth Amendment intended the Double Jeopardy Clause to stop an improper prosecution at its outset, not after the defendant’s and the court’s resources have been spent and possibly wasted in lengthy and arduous litigation.
I would reverse the order of the district court denying Wolf’s plea in bar and remand this cause with instructions to enter an order barring prosecution of these offenses pursuant to the Double Jeopardy Clause of the Fifth Amendment.
Fahrnbruch, J., joins in this dissent.