concurring.
While I agree with much of the majority opinion, I believe it’s attempted burial of Grady’s “same conduct” doctrine makes only a shallow grave. In my view, this attempted burial will haunt us yet because the same course of traffic conduct will often result in multiple criminal prosecutions, like the drunk driver who kills someone. Therefore, I would prefer to put today’s result in more familiar terrain.
A criminal penalty after a civil assessment for the same conduct does not create double jeopardy. Here, the exhibition driving was a “non-criminal” violation of traffic regulations that incurred a fee of sixty dollars under Fargo Municipal Code § 1 — 0305(c)(4). The related statute directs:
The state or the city, as the case may be, must prove the commission of a charged [traffic] violation at the hearing or appeal under this section by a fair preponderance of the evidence. Upon an appeal under subsection 5, the court and parties shall follow, to the extent applicable, the North Dakota Rules of Civil Procedure.
NDCC 39-06.1-03(6) (part). Since Hector’s assessment for exhibition driving came in a civil case, not a criminal one, neither of the Double Jeopardy Clauses were implicated in the later criminal prosecution for drunk driving. State v. Sinner, 207 N.W.2d 495, 500-01 (N.D.1973) (usual guarantees against double jeopardy did not apply to criminal prosecution for driving while license suspended after traffic violations); State v. Mertz, 514 N.W.2d 662, 667 (N.D.1994) (“Because Mertz received remedial sanctions for civil contempt of court, the double jeopardy clause does not bar this criminal prosecution for abandonment or nonsupport of a child based on the same conduct.”). This familiar distinction between civil and criminal cases controls this case.
Nor does this prosecution present the unusual situation where a civil penalty for the “same conduct” is so “overwhelmingly disproportionate” to the “damage caused” as to violate the Double Jeopardy Clauses. United States v. Halper, 490 U.S. 435, 449, 109 S.Ct. 1892, 1902, 104 L.Ed.2d 487 (1989). Therefore, I concur that Hector was not punished more than once for the same offense.
LEVINE, J., concurs.