State v. Spilde

OPINION

SCHUMACHER, Judge.

This appeal is from a judgment of conviction and sentence for misdemeanor DWI and refusal to submit to testing. See Minn.Stat. § 169.121, subds. 1(a), la (1992).1 We affirm.

*640FACTS

The complaint charged appellant Dean Elliot Spilde with driving while under the influence and refusing testing on March 24, 1994. On that date, Spilde was stopped in New Ulm going the wrong way on a one-way street. The officer observed indicia of intoxication and asked Spilde to perform field sobriety tests, which he failed. The officer gave Spilde the Implied Consent Advisory, and Spilde said he would take a breath test.

Spilde did not give an adequate sample of breath for the Intoxflyzer to test. After he had made a number of attempts that the. officer judged inadequate, the test was stopped and marked as a refusal. The trial court in the implied consent proceedings sustained the revocation, finding that Spilde had refused testing.

Spilde’s one-year revocation for refusing testing began on March 31, 1994. The complaint charging him with misdemeanor DWI and refusal to submit to testing was issued on April 18,1994. Spilde’s motion to dismiss on due process grounds was denied in August 1994. In February 1995, he moved to dismiss on double jeopardy grounds. The trial court denied that motion from the bench on February 13, 1995. The court found that the implied consent driver’s license revocation was “solely remedial” and did not constitute punishment for double jeopardy purposes.

ISSUE

Does a one-year implied consent driver’s license revocation for refusing testing constitute “punishment” barring under the Double Jeopardy Clause a criminal sentence?

ANALYSIS

Spilde argues that under United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989), the one-year implied consent revocation, although labeled a “civil” sanction, is punishment for purposes of the Double Jeopardy Clause.

In Halper, the Supreme Court was faced with the question

whether and under what circumstances a civil penalty may constitute punishment for the purpose of the Double Jeopardy Clause.

Id. at 446, 109 S.Ct. at 1901. The Court stated that it would no longer determine whether a sanction is “punishment,” for purposes of double jeopardy, based solely on the label attached to it. Id. at 447, 109 S.Ct. at 1901. Instead, the Court stated:

We * * * hold that under the Double Jeopardy Clause a defendant who already has been punished in a criminal prosecution may not be subjected to an additional civil sanction to the extent that the second sanction may not fairly be characterized as remedial, but only as a deterrent or retribution.

Id. at 448-49, 109 S.Ct. at 1902.

This court has recently held that the 90-day driver’s license revocation imposed in the implied consent proceeding on a first-time offender is not “punishment” under Halper. State v. Hanson, 532 N.W.2d 598 (Minn.App.1995), review granted (Minn. Aug. 9, 1995). In making that determination, this court looked at the penalty imposed “and the purposes that the penalty may fairly be said to serve.” Id. at 601 (quoting Halper, 490 U.S. at 448, 109 S.Ct. at 1901). This court, addressing only the 90-day driver’s license revocation, determined that that sanction was not “overwhelmingly disproportionate” to the public interest at stake. Id. at 602 (quoting Halper, 490 U.S. at 449, 109 S.Ct. at 1902).

The one-year revocation period for refusing testing serves a somewhat different purpose than the driver’s license revocation imposed for failing the chemical test.

The one-year driver’s license revocation for refusing testing serves as a strong inducement for drivers to provide “reliable and relevant evidence” of intoxication for any criminal DWI prosecution. Heddan v. Dirkswager, 336 N.W.2d 54, 62 (Minn.1983) (quoting Mackey v. Montrym, 443 U.S. 1, 18, 99 *641S.Ct. 2612, 2621, 61 L.Ed.2d 321 (1979)). The one-year revocation also serves the remedial purpose of removing drunken drivers from the highway. See id. The implied consent statute generally

provide[s] safer drivers on our highways by making available to law-enforcement officers evidence to establish in court that the person arrested was driving while under the influence of alcohol.

State, Dep’t of Highways v. Schlief, 289 Minn. 461, 463, 185 N.W.2d 274, 275-76 (1971).

As Spilde argues, the driver who refuses testing is not as demonstratively drunk as the driver who has submitted to testing and tested over .10. But the driver who takes the test and “fails” it has his license taken away before the entire process has been put to the test of administrative and judicial review. The public interest has been held to justify the risk of erroneous deprivation of a driver’s license before a hearing has been held. Heddan, 336 N.W.2d at 63.

The supreme court stated in 1976:

The obvious and intended effect of the implied consent law is to coerce the driver suspected of driving under the influence into “consenting” to chemical testing, thereby allowing scientific evidence of his blood-alcohol content to be used against him in a subsequent prosecution for that offense.

Prideaux v. State, Dep’t of Pub. Safety, 310 Minn. 405, 409-10, 247 N.W.2d 385, 388 (1976) (citation omitted).

More recently the corut, while reaffirming the language from Prideaux, has emphasized the driver’s freedom to choose either to test or not to test:

the choice of whether to submit to the chemical testing procedures is a very important one to the individual driver. A driver must make a critical and binding decision regarding chemical testing, a decision that will affect him or her in subsequent proceedings.

Friedman v. Commissioner of Pub. Safety, 473 N.W.2d 828, 832 (Minn.1991).

The Supreme Court in Halper identified retribution and deterrence as the principal aims of punishment. Halper, 490 U.S. at 448, 109 S.Ct. at 1902. Although the one-year revocation for refusing testing may “coerce” drivers to agree to testing, we conclude that it does not do so in a punitive sense, as Halper uses the term “punishment.” The purpose of the statute is not so much to punish past behavior as to attach a negative consequence to a present choice. See Friedman, 473 N.W.2d at 832 (driver has an important choice to make). To say that the one-year revocation for refusal “coerces” testing is equivalent to saying it provides a “strong inducement” to testing. Mackey, 443 U.S. at 18, 99 S.Ct. at 2621. We conclude that this sanction serves a remedial purpose and is not solely punitive.

In an analogous area, the purpose of a civil contempt order is to

eoerc[e] compliance with an order through imposition of a sanction of indefinite duration, to be lifted upon compliance.

State v. Garcia, 481 N.W.2d 133, 136 (Minn.App.1992). The purpose of a civil contempt order is to vindicate the rights of another, party, not to punish the contemnor. Id.

The analogy between civil contempt and the one-year revocation for refusal is not exact. The implied consent revocation is not concerned with future compliance because chemical testing must be taken immediately or not at all. See generally Friedman, 473 N.W.2d at 835 (evanescent nature of DWI evidence requires that driver be given only limited time to contact counsel). But civil contempt law illustrates the way in which the law may coerce compliance without being “punitive” in the sense of punishment for behavior that the individual can no longer remedy.

There is a significant difference, as Spilde argues, between the duration of the 90-day revocation involved in Hanson and the one-year revocation for refusing testing. But the one-year revocation serves the additional, and largely remedial, purpose of inducing the driver to consent to testing. The legislature has further induced testing by making refusal a crime. This provision and the complex interrelationship of the DWI and implied consent statutes generally make it difficult to *642analyze the effects of the longer civil revocation for refusal. It is generally for the legislature, however, to draft appropriate civil sanctions. See generally Essling v. Markman, 335 N.W.2d 237, 239 (Minn.1983) (court will not substitute its judgment for that of legislature).

We cannot conclude that the one-year revocation is so “overwhelmingly disproportionate” as to constitute punishment. See Halper, 490 U.S. at 449, 109 S.Ct. at 1902. The Halper decision does not allow a court to disregard the civil label attached to a sanction except in the “rare case.” Id. The one-year revocation for refusal does not present a “rare case” invoking the Double Jeopardy Clause.

DECISION

Spilde’s one-year driver’s license revocation for refusing testing does not bar his criminal sentence imposed in this DWI prosecution.

Affirmed.

. The jury found Spilde guilty of both DWI and refusal to submit to testing. The sentencing order does not specify for which offense Spilde was sentenced. The trial court indicated at sentencing that the two were being treated as one offense. But because the trial court stayed sen*640tence pending this appeal, assuming the double jeopardy issue would be raised, we will treat the sentence as one for refusal.