specially concurring:
I concur in the decision to affirm the denial of the motion to dismiss on double jeopardy grounds. I agree that where, as here, a suspension or revocation of a license arising from conduct that is also criminal is alleged or involved, a different approach to double jeopardy problems is appropriate than is the case where the criminal conduct gives rise to (1) a forfeiture of property (Austin, P.S.); or (2) a civil monetary penalty (Halper). I deem that the question involved is closer than does the majority. I analyze it somewhat differently. However, I end up agreeing that language in Kurth Ranch, cited in Wilson, permits us to conclude that the fact that the summary suspension procedure has some penal aspects to it does not prevent subsequent criminal prosecution for DUI.
I agree with the majority that the summary suspension procedure of sections 11 — 501.1 and 6 — 208.1(a)(4) of the Code is predominantly remedial and for the purpose of getting drivers who are likely ' to commit DUI off the road. However, to the extent that the majority determines that the procedure does not also have a punitive purpose,
I am in disagreement. That is why I am concerned with the statement 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.) Halper, 490 U.S. at 448, 104 L. Ed. 2d at 502, 109 S. Ct. at 1902. If that statement is applicable here, I could not vote to affirm.
My conclusion that summary suspension has some deterrent effect, and thus a punitive effect, is based upon the portion of section 6 — 206.1 of the Code which states:
"It is hereby declared a policy of the State of Illinois that the driver who is impaired by alcohol or other drugs is a threat to the public safety and welfare. Therefore, to provide a deterrent to such practice and to remove problem drivers from the highway, a statutory summary driver’s license suspension is appropriate.” (Emphasis added.) 625 ILCS 5/6 — 206.1 (West 1992).
The foregoing language clearly states that the summary suspension procedure has two purposes. One is to deter people from driving while intoxicated and the other is to remove "problem drivers from the highway.” Any other interpretation ignores the use of the word "and.” The majority opinion is not clear as to the meaning it gives to that language. To the extent it interprets the wording to mean "to provide a deterrent to such practice by removing problem drivers from the highway,” I am in disagreement.
In Esposito, although the opinion described a summary suspension procedure as "remedial in nature,” that opinion also stated that the procedure "not only removes a particularly dangerous class of drivers from the roadways as promptly as possible, it also deters others from driving while under the influence.” (Emphasis added.) Esposito, 121 Ill. 2d at 510, 521 N.E.2d at 881. Similarly, in Wegielnik (152 Ill. 2d at 425, 605 N.E.2d at 490), the supreme court described the procedure as being "remedial in nature,” but also described the purpose as "to deter and remove problem drivers from the highway.” Thus, I can only conclude that the summary procedure has some significant deterrent purpose to it and, if the Halper language has application, deterrence is punishment.
In P.S., the court centered its discussion of the question of punishment upon Halper, Austin, and Kurth Ranch. Halper was discussed first. The opinion noted Halper had explained that the issue to be evaluated was the purpose of the sanction rather than the underlying nature of the proceeding resulting in the sanction. The P.S. court then explained that based on the foregoing and other principles, the Halper Court made its determination that a civil sanction was remedial only if it had no deterrent or retributive purposes.
The P.S. opinion then explained a rule announced in Halper. That rule concerns the situation when a monetary civil sanction is grossly in excess of any cost to the government arising from the conduct giving rise to the sanction. Under those circumstances, the civil sanction becomes a second punishment when that defendant has also been convicted of a crime resulting from that conduct. The rule described is the proportionality rule discussed by the majority. The P.S. court adopted Halper’s explanation that a defendant in that situation would be entitled to an accounting to determine the proportionality between the sanction and the expense. P.S., 169 Ill. 2d at 280.
The P.S. opinion then described how Austin had rejected any proportionality test as to forfeitures, concluding that historically they had at least some punitive aspect. Kurth Ranch was mentioned and explained to hold that a tax on the possession of illegal drugs constituted double jeopardy when the party on whom the tax was assessed had been convicted of that possession. After the foregoing discussion of Halper, Austin, and Kurth Ranch, the P.S. court stated that "[biased on” the foregoing authority, the court needed "to determine whether the forfeiture of Kimery’s automobile served, in part, to punish him” (emphasis added) and also said "[i]f so, the forfeiture will be considered punishment for purposes of the double jeopardy clause.” P.S., 169 Ill. 2d at 282.
The statement in P.S. that the court had considered the Halper statement in making the determination as to how it should proceed is a clear indication that in forfeiture cases, if any punishment occurs, the forfeiture is punitive in nature. The P.S. court gave no indication that deterrence is not punishment, and the content of the discussion going from the Halper statement in question to the conclusion that any punitive aspect of the forfeiture made it punishment would seem to indicate an agreement that a deterrent aspect of a sanction made it punitive.
Later in the P.S. opinion, the court said that the State contended that a test should have been made to determine under the proportionality test of Halper whether the value of the property seized was out of proportion to the State’s expenses in prosecuting the matter. The P.S. court responded that the Austin court had taken a categorical approach based upon a theory that the expenses incurred by the government were very unlikely to correspond to the value of the forfeited items in a meaningful way so that forfeiture would be deemed punitive as had been the historical assumption. P.S., 169 Ill. 2d at 285. I agree that no proportionality test was appropriate here and no categorical approach deeming all summary suspensions of licenses punitive is appropriate.
I share the concern at least implied by the majority here and in Dvorak and the majority of post -Halper decisions in other jurisdictions, that giving double jeopardy protection under circumstances such as those here does not make sense. Any impairment of a license has some inherent deterrent involved in that it does discourage the conduct giving rise to the impairment. I agree that the situation is different than the imposition of a civil monetary penalty or a forfeiture.
As indicated by the majority, a reference in Wilson (which cites language in Kurth Ranch) gives the best explanation why we can avoid application of the Halper language which gives me concern. 278 Ill. App. 3d 859. In Kurth Ranch, the United States Supreme Court held that a double jeopardy protection prevented a State from collecting a tax it had imposed on those possessing certain controlled substances when the taxpayer had been convicted of the criminal offense of that possession. That opinion stated "[w]e begin by noting that neither a high rate of taxation nor an obvious deterrent purpose automatically marks this tax a form of punishment.” (Emphasis added.) Kurth Ranch, 511 U.S. at 780, 128 L. Ed. 2d at 779, 114 S. Ct. at 1946.
The Kurth Ranch opinion went on to explain that the fact the tax was for conduct which was criminal did tend to indicate that the tax was punitive but also applied further factors to reach that conclusion. The significance of the quoted language is that the United States Supreme Court has held that not all civil sanctions which have significant deterrent qualities prevent criminal prosecutions for the same conduct.
As I have indicated, I think the question of whether a summary suspension of the type here prevents subsequent criminal prosecution because of double jeopardy is close. Nevertheless, because the summary suspension procedure is predominately a remedial one to get those drivers likely to be dangerous temporarily off the road, I agree we can make a commonsense determination that no double jeopardy bar can be imposed here.