State v. Spilde

PETERSON, Judge

(dissenting).

I respectfully dissent.

Under double jeopardy analysis,

the determination whether a given civil sanction constitutes punishment in the relevant sense requires a particularized assessment of the penalty imposed and the purposes that the penalty may fairly be said to serve. Simply put, a civil as well as a criminal sanction constitutes punishment when the sanction as applied in the individual case serves the goals of punishment.

United States v. Halper, 490 U.S. 435, 447-48, 109 S.Ct. 1892, 1901-02, 104 L.Ed.2d 487 (1989). “[Pjunishment serves the twin aims of retribution and deterrence.” Id. at 448, 109 S.Ct. at 1902. “[Rjetribution and deterrence are not legitimate nonpunitive governmental objectives.” Id. at 448, 109 S.Ct. at 1902 (quoting Bell v. Wolfish, 441 U.S. 520, 539 n. 20, 99 S.Ct. 1861, 1874 n. 20, 60 L.Ed.2d 447 (1979)).

The majority finds that the one-year license revocation for refusing to submit to testing under the implied consent law is not punishment because it serves the remedial purpose of removing drunken drivers from the highway by providing a strong inducement for drivers to provide reliable and relevant evidence of intoxication for any criminal DWI prosecution. The one-year revocation is not punishment, the majority explains, because the statute’s purpose “is not so much to punish past behavior as to attach a negative consequence to a present choice.”

Halper requires a determination whether the purpose of a penalty is punitive or non-punitive. 490 U.S. at 447-48, 109 S.Ct. at 1901-02. Under the majority’s reasoning, the one-year revocation is not punishment because it does not deter drivers from refusing to take a test. Rather, it induces drivers to submit to testing. The Halper test becomes meaningless under this reasoning, however, because any penalty that can be described as serving the punitive purpose of deterring undesired conduct can be alternately described as serving the purpose of inducing desired conduct.

Furthermore, the one-year license revocation cannot fairly be characterized as anything other than a response to past behavior. The revocation occurs only

[u]pon certification by the peace officer that there existed probable cause to believe the person had been driving, operating, or in physical control of a motor vehicle while under the influence of alcohol or a controlled substance and that the person refused to submit to a test.

Minn.Stat. § 169.123, subd. 4 (Supp.1993) (emphasis added). The revocation does not occur when a driver chooses to refuse to submit to a test; it occurs only after the driver has refused. Id. No negative consequence attaches until a present choice to refuse becomes an actual refusal.

“Deter” means

[t]o discourage or stop by fear. To stop or prevent from acting or proceeding by danger, difficulty, or other consideration which disheartens or countervails the motive for the act.

Black’s Law Dictionary 450 (6th ed. 1990).

The one-year license revocation does not, as the majority contends, induce drivers to *643provide reliable and relevant evidence of intoxication. Drivers do not submit to testing in order to provide evidence. They submit to testing to avoid the one-year revocation that will be imposed if they refuse. The one-year revocation is a compelling consideration that countervails the natural inclination of any driver to refuse to submit to a chemical test. The one-year revocation serves the aim of deterring refusals and is, therefore, punishment.

The state argues that, by providing reliable evidence to be used in a criminal DWI prosecution, the one-year revocation for refusing testing serves the remedial purpose of enabling the state to avoid investigative and prosecutorial costs. The majority appears to adopt this argument when, quoting two words from Halper, 490 U.S. at 449, 109 S.Ct. at 1903, it states it cannot determine that the one-year revocation is so “overwhelmingly disproportionate” that it constitutes punishment. These two words are taken from the Supreme Court’s description of the rule established in Halper:

What we announce now is a rule for the rare ease, the case such as the one before us, where a fixed-penalty provision subjects a prolific but small-gauge offender to a sanction overwhelmingly disproportionate to the damages he has caused. The rule is one of reason: Where a defendant previously has sustained a criminal penalty and the civil penalty sought in the subsequent proceeding bears no rational relation to the goal of compensating the- Government for its loss, but rather appears to qualify as “punishment” in the plain meaning of the word, then the defendant is entitled to an accounting of the Government’s damages and costs to determine if the penalty sought in fact constitutes a second punishment.

490 U.S. at 449-50, 109 S.Ct. at 1902.

The Supreme Court states in Halper that investigative and prosecutorial costs must be factored into a determination whether a sanction is disproportionate to the government’s loss. Id. at 446 n. 6, 109 S.Ct. at 1900 n. 6. The majority concludes that the one-year revocation is not “overwhelmingly disproportionate” but in reaching this conclusion, it does not compare the revocation to investigative and prosecutorial costs, or to any other government loss. The majority offers no explanation how a sanction that provides no compensation is rationally related to the goal of compensating the government.

Recognizing that a license revocation does not compensate the state directly, the state asserts that the revocation compensates instead by preventing investigation and prose-cutorial costs from being incurred. But these costs are avoided only when a driver takes a test and when a driver takes a test, the one-year revocation is not imposed. It is the threat of revocation, not the revocation itself, that prevents costs from being incurred. The one-year revocation may prevent the state from incurring costs, but it does so because drivers take a test to avoid the threatened revocation.

As the majority states, this court held in State v. Hanson, 532 N.W.2d 598, 602 (Minn.App.1995), that the 90-day driver’s license revocation imposed in the implied consent proceeding on a first-time offender is not punishment. In that case, the drivers whose licenses were revoked consented to chemical tests and the test results showed alcohol concentrations in excess of .10. Id. at 600. This court concluded that the 90-day license revocations were not punishment because the revocations were not overwhelmingly disproportionate to the public safety interest at stake. Id. at 602.

Even when the “overwhelmingly disproportionate” test is applied broadly, as it was in Hanson, 532 N.W.2d at 602, and we consider whether the one-year revocation is overwhelmingly disproportionate to the public safety interest in removing drunken drivers from the highway, it cannot be concluded that there is a rational relation between the sanction and the remedial purpose.

Appellant’s license was revoked for one year because he refused testing, not because his alcohol concentration exceeded .10. There is no basis for concluding that because appellant refused testing he posed a greater threat to public safety than a driver who consented to testing and tested over .10. But appellant’s license was revoked for a *644longer period than it would have been had he actually tested over .10.

Unlike the revocations in Hanson, the additional license revocation imposed for refusing to submit to a chemical test is not rationally related to the purpose of protecting public safety because, unlike driving with an alcohol concentration greater than .10, a test refusal, by itself, is not a threat to public safety.