concurring.
“The framers of North Dakota’s Constitution must have intended more protection under the state double jeopardy clause than that of the United States Constitution, because otherwise the state provision is a meaningless redundancy.” So goes the argument. What the argument lacks is historical perspective.
From its adoption, the double jeopardy clause of the United States Constitution was considered a limitation only on the federal government. As recently as 1937, the United States Supreme Court, in Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288 (1937), held that the federal double jeopardy provisions did not apply to the states. It was not until 1969 that the United States Supreme Court, in Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 2062, 23 L.Ed.2d 707 (1969) held:
“[W]e today find that the double jeopardy prohibition of the Fifth Amendment represents a fundamental ideal in our constitutional heritage, and that it should apply to the States through the Fourteenth Amendment.”
When the framers of North Dakota’s Constitution included a double jeopardy clause, they were prohibiting the state from doing what the federal government was prohibited from doing. In view of then current federal constitutional jurisprudence, our framers were providing a real protection that would have been lacking.
A review of the entire proceedings of our State Constitutional Convention offers not one word of support for the concept that the framers intended to do anything other than prohibit the state from doing what the federal government was prohibited from doing. Official Report of the Proceedings and Debates of the First Constitutional Convention of North Dakota (1889); Journal of the Constitutional Convention for North Dakota (1889).
The concept that double jeopardy could extend to anything other than multiple criminal cases or prosecutions did not take hold until the second half of this century. United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989); Austin v. United States, 509 U.S. 602, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993); Department of Revenue of Montana v. Kurth Ranch, — U.S. -, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994). Those very narrowly expanded concepts were discussed and analyzed in State v. Zimmerman, 539 N.W.2d 49 (N.D.1995).
The defendants refer us to Meschke and Spears, Digging for Roots: The North Dakota Constitution and the Thayer Correspondence, 65 N.D.L.Rev. 343 (1989), and Model Constitution (Peddrick Draft # 2, 1889), 65 N.D.L.Rev. 415 (1989). The “Authorities” section of the Peddrick Draft #2 reflects that, while other provisions have their origins in provisions of other specific state constitutions, our state double jeopardy provision’s origin was “Constitutions generally.” 65 N.D.L.Rev. at 480. There is nothing in our constitutional records or the jurisprudence of the time to support the defendants’ urged construction of our state double jeopardy clause.
Meschke and Spears suggest, “The well-reasoned construction of a like constitutional provision by another state is highly persuasive.” 65 N.D.L.Rev. at 381. No state has interpreted its state double jeopardy provision to apply to criminal DUI prosecution following administrative license suspension.
*156Finally, I feel compelled to note the second half of Representative Patrick Conmy’s famous quotation, quoted in part by Justice Levine, which suggests a remedial purpose: “If all else fails, slash their- tires.” S.B. 2373, Conference Committee Minutes, April 7, 1983. Perhaps that would better protect the public from those who believe they have a “constitutional right” to drive drunk.