Tench v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judges Baker, Benton, Coleman, Elder,
Bray, Fitzpatrick, Annunziata and Overton
Argued at Richmond, Virginia

DAVID TENCH, S/K/A
DAVID M. TENCH

v. Record No. 0773-95-2 OPINION BY
CHIEF JUDGE NORMAN K. MOON
COMMONWEALTH OF VIRGINIA OCTOBER 24, 1995

FROM THE CIRCUIT COURT OF HENRICO COUNTY
James E. Kulp, Judge
Ronald E. Smith (Theresa Rhinehart; Thomas E.
Gallahue; Gregory Beckwith; Matthew S. McConnell;
Lawrence, Smith & Hudgins; Law Offices of Theresa
Rhinehart & Associates; Law Offices of Lawrence E.
Gallahue; Phillips, Beckwith & Hall; Herge,
Sparks & Christopher, on brief), for appellant.

H. Elizabeth Shaffer, Assistant Attorney General,
(James S. Gilmore, III, Attorney General, on
brief), for appellee.

Amicus Curiae: Cullen D. Seltzer for appellant.

Amici Curiae: Honorable Thomas W. Moss, Jr.;
Honorable James F. Almand; Honorable Edward M.
Holland; Honorable C. Richard Cranwell; Honorable
Thomas K. Norment, Jr.; Honorable Joseph V.
Gartlan, Jr.; Virginia Association of
Commonwealth's Attorneys; Virginia Sheriffs
Association (H. Lane Kneedler; Roger C. Wiley;
Hazel & Thomas; Hefty & Wiley, on brief), for
appellee.

David M. Tench appeals his conviction for driving while

intoxicated in violation of Code § 18.2-266. Tench claims that

because his driver's license had been suspended pursuant to Code

§ 46.2-391.2 prior to his conviction and punishment for driving

while intoxicated, he was twice placed in jeopardy for the same

offense in violation of the United States Constitution. We
disagree, and affirm his conviction.

On January 13, 1995, Tench was arrested for driving while

intoxicated. He submitted to a breath test, with a result of

.12% grams of alcohol per 210 liters of breath. A magistrate

issued a warrant for a violation of Code § 18.2-266. After

issuance of the warrant, Tench's license was automatically

suspended for seven days pursuant to Code § 46.2-391.2. Tench

did not appeal that suspension, and his license was returned to

him after the seven-day period had expired. Tench was then

convicted in Henrico General District Court of driving while

intoxicated, and on appeal to Henrico Circuit Court was convicted

after a bench trial. He was sentenced to serve ninety days in

jail, all of which was suspended for three years, and was ordered

to pay a fine of $150. The circuit court rejected his double

jeopardy claim.
Code § 46.2-391.2, which became effective on January 1,

1995, requires automatic suspension of the driver's license of

any person arrested for driving while intoxicated if the driver

fails a breath test administered pursuant to Code § 18.2-268.2,

and the automatic suspension of the driver's license of any

person who refuses to take a breath test as required by Code

§ 18.2-268.3. Under Code § 46.2-391.2, when the driver either

fails the breath test or refuses to take it, he or she is taken

before a magistrate and a warrant is issued for the driver's

arrest. Upon issuance of the warrant, the magistrate

automatically suspends the accused's driving privilege pursuant

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to Code § 46.2-391.2. The accused may appeal the suspension to

the general district court, which must hear the appeal on the

expedited docket for appeals of orders relating to bail. The

only ground for the general district court to revoke the

suspension is a showing by the accused that the officer did not

have probable cause for the arrest or that the magistrate did not

have probable cause to issue the warrant. If the accused is

acquitted of the charge under Code §§ 18.2-266 or 18.2-268.3, the

suspension is automatically rescinded. See Code § 46.2-391.4.

Otherwise, the general district court automatically returns the

license to the accused at the end of the seven-day period.

The double jeopardy clause provides three separate

protections: protection against a second prosecution for the same

offense after acquittal, a second prosecution for the same

offense after conviction, and multiple punishments for the same

offense. Brown v. Ohio, 432 U.S. 161, 165 (1977). Tench asserts

that the proceeding that revoked his license for seven days was a

punishment for the charged offense of driving while intoxicated,

and to thereafter subject him to criminal penalties for driving

while intoxicated violates the protection against multiple

punishments for the same offense.

In this case, the double jeopardy claim arises not from two

successive criminal prosecutions, but from a civil license

suspension followed by a criminal prosecution. Such a procedure

constitutes double jeopardy only if the license suspension

constitutes punishment, and if the license suspension and the
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criminal sanctions occurred in separate proceedings. Department

of Revenue of Montana v. Kurth Ranch, 114 S. Ct. 1937, 1945

(1994); United States v. Halper, 490 U.S. 435, 446 (1989). 1

Because we hold that the license suspension does not constitute

punishment, we do not reach the issue of whether the suspension

and the criminal penalties were imposed in separate proceedings.

In United States v. Halper, the Supreme Court for the first

time considered "whether and under what circumstances a civil

penalty may constitute punishment for purposes of the Double

Jeopardy Clause." Id. at 446. In deciding this question, the

labels "civil" and "criminal" are not controlling; instead, the

court must evaluate the goals the sanctions are designed to

serve. Id. at 447. The Halper Court held 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.

The Supreme Court in Halper recognized that a civil sanction

may be "so divorced from any remedial goal that it constitutes

`punishment'" for double jeopardy purposes. Id. at 443.

1
To violate the double jeopardy clause, the punishments must
be for the same offense. Department of Revenue of Montana v.
Kurth Ranch, 114 S. Ct. at 1941. This issue is determined under
the standards set forth in Blockburger v. United States, 284 U.S.
299 (1932). For purposes of this appeal, we will assume that the
license suspension and the subsequent criminal penalty were for
the same offense.

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However, that is not the case for the seven day license

suspension under Code § 46.2-391.2. The Supreme Court of

Virginia has recognized that the purpose of revoking a driver's

license is "not to punish the offender but to remove from the

highways an operator who is a potential danger to other users."

Prichard v. Battle, 178 Va. 455, 463, 17 S.E.2d 393, 396 (1941). 2

See also Commonwealth v. Ellett, 174 Va. 403, 414, 4 S.E.2d 762,

767 (1939) ("The operation of a motor vehicle . . . is a

conditional privilege, which may be suspended or revoked under

the police power. . . . [It] is not a contract or property right

in a constitutional sense."). The General Assembly's

consideration of a procedure for automatic license suspension was

motivated by its desire to reduce "alcohol-related crashes,

fatalities, and injuries." See S. J. Res. 172, 1989 Va. Acts. 3

Enactment of this procedure was no empty exercise, as states that

have enacted such laws have experienced a reduction in alcohol-

related crashes and fatalities. Id. We hold that automatic
2
The Virginia Supreme Court has also held that revocation of
other licenses, such as the license to practice law, is remedial
rather than punitive. See, e.g., Norfolk & Portsmouth Bar
Association v. Drewry, 161 Va. 833, 837, 172 S.E. 282, 284 (1934).
The United States Supreme Court has stated that one sanction
"which is characteristically free of the punitive criminal element
is revocation of a privilege voluntarily granted," such as
disbarment and the revocation of various licenses. Helvering v.
Mitchell, 303 U.S. 391, 399 (1938).
3
In arguing that Code § 46.2-391.2 has a punitive purpose,
Tench relies on several statements by interested parties that were
submitted to the Department of Motor Vehicles during consideration
of the administrative suspension procedure. Such statements carry
little if any weight in our analysis of the purpose of Code
§ 46.2-391.2.

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license suspension under Code § 46.2-391.2 is a remedial sanction

because its purpose is to protect the public from intoxicated

drivers and to reduce alcohol-related accidents. Therefore, the

sanction of license suspension does not constitute punishment for

purposes of double jeopardy. 4

Every state supreme court that has addressed the issue, and

most intermediate appellate courts, have held that administrative

license revocation does not constitute punishment for double

jeopardy purposes. The Vermont Supreme Court in State v. Strong,
605 A.2d 510 (Vt. 1982), stated that a "'bright line' has

developed [on this issue] because the nonpunitive purpose of the

license suspension is so clear and compelling." Id. at 514. We

concur in that point of view.

4
The defendant contends that Code § 46.2-391.2 is not
remedial because license suspension does not bear a rational
relationship to compensating the government for a loss. This
argument is derived from Halper, where the trial court had imposed
a substantial monetary penalty for a series of fraudulent Medicare
claims. The Halper Court established "a rule for the rare case .
. . where a fixed-penalty provision subjects a prolific but small-
gauge offender to a sanction overwhelmingly disproportionate to
the damages he has caused." 490 U.S. at 449. If that sanction
"bears no rational relation to the goal of compensating the
Government for its loss", i.e., the Government's actual damages
and expenses, it would constitute punishment for double jeopardy
purposes. Id.
This is not the "rare case" described in Halper. The
sanction here is not monetary and is not designed to compensate
the Government for out-of-pocket losses. See Small v.
Commonwealth, 12 Va. App. 314, 398 S.E.2d 98 (1991). Its remedial
purpose is not to compensate, but to protect the public from
intoxicated drivers and the accidents they cause. Moreover, even
if Halper establishes a "rational relation" test for all civil
sanctions, license suspension does not constitute punishment,
because it bears a rational relationship to its remedial goals.

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 Tench contends that under Halper and subsequent Supreme

Court cases, a civil sanction that is not "solely remedial"

constitutes punishment for double jeopardy purposes. This

argument is misconceived. Under Halper, a civil sanction

constitutes punishment if it is "only . . . a deterrent or

retribution." Halper, 490 U.S. at 449 (emphasis added). While

Halper contains discussion of a standard closer to that proposed

by Tench, that standard is not part of the Court's holding.
In arguing that Code § 46.2-391.2 must have a solely

remedial purpose in order to avoid double jeopardy problems,

Tench relies on Austin v. United States, 113 S. Ct. 2801 (1993),

and United States v. $405,089.23 U.S. Currency, 33 F.3d 1210 (9th

Cir. 1994), modified, 56 F.3d 41 (1995). In Austin, the Supreme

Court held that the Eighth Amendment's excessive fines clause

applies to in rem forfeiture proceedings. The Supreme Court

concluded that property forfeitures have historically been

regarded as punitive, even though they may also serve a remedial

purpose. Austin, 113 S. Ct. at 2811-12. Although the Court in

Austin used some of the expansive language in Halper to assist in

its analysis, Austin is not a double jeopardy case and does not

purport to modify Halper. Therefore, Austin does not control the

decision in this case. 5
5
Tench relies on United States v. $405,089.23 U.S. Currency.
In that case, which involved civil forfeiture of property
belonging to convicted drug dealers, the Ninth Circuit ruled that
Austin and Halper establish a "solely" remedial test for
determining whether a civil sanction constitutes punishment for
purposes of double jeopardy. This ruling, in our opinion, is
neither correct nor binding, and we decline to follow it.

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 Indeed, in Department of Revenue of Montana v. Kurth Ranch,

a case decided after Austin, the U.S. Supreme Court restated the

narrow holding in Halper, and also stated that the obvious

deterrent purpose of the penalty at issue in Kurth Ranch did not

"automatically" mark it as punishment. 114 S. Ct. at 1945-46.

Other courts considering the goals of administrative license

suspensions have recognized that although there is an element of

deterrence in any summary suspension procedure, that fact does

not render the suspension punitive so long as its primary purpose

is remedial. See, e.g., State v. Zerkel, 1995 WL 444826, *12-13

(Alaska Ct. App. 1995); State v. Strong, 605 A.2d at 513.

Moreover, the fact that the offender perceives the suspension as

punitive is irrelevant, because for the offender "even remedial

sanctions carry the sting of punishment." Halper, 490 U.S. at

447 n.7. Therefore, even if automatic license suspension serves

in part to deter intoxicated drivers, this does not render it

punitive for purposes of double jeopardy.

In summary, the automatic suspension of Tench's operator's

license had a remedial purpose and thus did not constitute

punishment under the standard established in Halper and
reaffirmed in Kurth Ranch. Because that proceeding did not

impose punishment within the meaning of the double jeopardy

clause, Tench was not twice placed in jeopardy in violation of

the United States Constitution when prosecuted for driving while

intoxicated. Therefore, we affirm Tench's conviction for driving

while intoxicated.

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 Affirmed.

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Benton, J., dissenting.

David Tench was punished for driving under the influence of

intoxicants when his driver's license was suspended following his

arrest. Tench was later convicted and additionally punished for

driving under the influence of intoxicants. Because the

prosecution for driving under the influence followed the license

suspension and resulted in additional punishment for the same

offense, I would hold that it violated the Double Jeopardy

Clause. 6

The Double Jeopardy Clause "protects against multiple

punishments for the same offense." North Carolina v. Pearce, 395

U.S. 711, 717 (1969). Discussing the characteristics of

punishment, the Supreme Court ruled as follows:
It is commonly understood that civil
proceedings may advance punitive as well as
6
Because the majority does not address the issue whether the
license suspension and the punishment for driving under the
influence were imposed in separate proceedings, I will not discuss
in detail this aspect of the case. The principle is well
established that the protection against multiple punishments
applies when such punishments are imposed in separate proceedings.
Missouri v. Hunter, 459 U.S. 359 (1983).

I would hold that the license suspension proceeding is
separate from the criminal proceeding for driving under the
influence. The suspension proceeding before the magistrate is
clearly a judicial proceeding. The automatic license suspension
is imposed and the sanction is completed before the trial of the
driving under the influence offense. The license suspension
sanction is imposed irrespective of the defendant's actual guilt
of the criminal offense. Finally, the license suspension
proceeding, as the majority correctly concludes, is a civil
proceeding.

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 remedial goals, and, conversely, that both
punitive and remedial goals may be served by
criminal penalties. The notion of
punishment, as we commonly understand it,
cuts across the division between the civil
and the criminal law, and for the purposes of
assessing whether a given sanction
constitutes multiple punishment barred by the
Double Jeopardy Clause, we must follow the
notion where it leads. To that end, 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.
These goals are familiar. We have
recognized in other contexts that punishment
serves the twin aims of retribution and
deterrence. Furthermore, "[r]etribution and
deterrence are not legitimate nonpunitive
governmental objectives." From these
premises, it follows 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.

United States v. Halper, 490 U.S. 435, 447-48 (1989)(emphasis

added)(citations omitted). In order for a sanction to escape the

classification of punishment, it must be solely remedial. Austin

v. United States, ___ U.S. ___, ___, 113 S. Ct. 2801, 2806

(1993).

In Austin, the Supreme Court explicitly confirmed its ruling

in Halper that a civil sanction that "'can only be explained as

also serving either retributive or deterrent purposes, is

punishment as we have come to understand the term.'" Austin, ___

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U.S. at ___, 113 S. Ct. at 2806 (quoting Halper, 490 U.S. at

448). I agree with the majority's conclusion that Austin was not

a double jeopardy case. However, the Supreme Court's analysis in

Austin is significant because the Court applied the Halper

definition of punishment. The majority opinion's

characterization of Austin as "us[ing] some of the expansive

language in Halper to assist in its analysis" misses the

significance of the Supreme Court's rationale. On the one hand,

the Court in Austin merely confirmed the Halper definition of
punishment, a definition the majority declines to follow in this

case; on the other hand, the Court in Austin used the definition

of punishment in its analysis and, thus, added substance to the

definition.

The issue before the Supreme Court in Austin was whether the

Eighth Amendment Excessive Fines Clause applied to forfeitures.

As the United States Court of Appeals for the Ninth Circuit aptly

noted, "in determining whether the Excessive Fines Clause

applied, the [Supreme] Court found it necessary to determine

. . . whether the forfeiture statutes at issue constituted

'punishment.'" United States v. $405,089.23 U.S. Currency, 33

F.3d 1210, 1219 (9th Cir. 1994). The language in Austin

regarding "punishment" is essential to the Court's holding; it is

neither dicta nor inconsequential. Both the United States Courts

of Appeals for the Ninth and Tenth Circuits have ruled that, in

Austin, the United States Supreme Court "emphasiz[ed] again that

a sanction which is designed even in part to deter or punish will

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constitute punishment, regardless of whether it also has a

remedial purpose." $405,089.23 U.S. Currency, 33 F.3d at 1219.

See also United States v. Hudson, 14 F.3d 536, 540 (10th Cir.

1994).

In the recent case of Department of Revenue v. Kurth Ranch,

___ U.S. ___, 114 S. Ct. 1937 (1994), the Supreme Court again

used the Halper definition of punishment. The majority of this

Court diminishes the significance of Austin when it concludes

that Kurth Ranch "restated the narrow holding in Halper." The

distinction the majority opinion makes between a "narrow"

application of Halper in Kurth Ranch and an "expansive"

application of Halper in Austin is one the Supreme Court itself

has not made. By stating the following question, the Supreme

Court in Kurth Ranch essentially applied the same analysis as in

Halper: "Here, we ask only whether the tax has punitive

characteristics that subject it to the constraints of the Double

Jeopardy Clause." 114 S. Ct. at 1945. The Court found punitive

characteristics and ruled the tax unconstitutional as applied.

In Kurth Ranch, the Court recognized that a tax statute was not
subject to the same type of corrective remedy as was appropriate

in Halper, where "the District Court read the $2,000-per-count

statutory penalty as discretionary and, approximating the amount

required to make the Government whole, imposed the full sanction

for only 8 of the 65 counts." Halper, 490 U.S. at 439. 7 The tax
7
The holding in Halper must be read within the context of the
statute at issue and the remedy that the trial judge employed.
After Halper was convicted of the criminal offense, the government

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assessment statute at issue in Kurth Ranch was based on a formula

that was not subject to the same approximation remedy. ___ U.S.

at ___, 114 S. Ct. at 1948. Thus, the Court found the tax to be

punishment and unconstitutional as applied to the Kurths. Id.

These cases inexorably lead to the conclusion that whether

Tench was twice punished for the same offense depends upon

whether the license suspension is solely remedial or has

deterrent or retribution characteristics. The statute that

authorized the license suspension provides in relevant part as
sought damages under the civil act that stated:

that a person in violation is "liable to the
United States Government for a civil penalty
of $2,000, an amount equal to 2 times the
amount of damages the Government sustains
because of the act of that person, and costs
of the civil action." Having violated the Act
65 separate times, Halper thus appeared to be
subject to a statutory penalty of more than
$130,000.

490 U.S. at 438 (citation and footnote omitted). The trial judge
ruled that the civil act exacted a sanction that was both remedial
and punitive and "ruled that imposition of the full amount would
violate the Double Jeopardy Clause by punishing Halper a second
time for the same conduct." Id. at 439. To avoid an
unconstitutional application of the statute, the trial judge
"limit[ed] the Government's recovery to double damages of $1,170
and the costs of the civil action." Id. at 440. The Supreme
Court's holding "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, validated the trial judge's ruling that the civil sanction
was in part punishment and that to the extent it was punishment,
the punishment portion was unlawful. The Supreme Court remanded
the case to allow the government "an opportunity to present . . .
an accounting of its actual costs . . . , to seek an adjustment of
the [trial judge's] approximation, and to recover its demonstrated
costs." 490 U.S. at 452.

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follows:
A. If a breath test is taken pursuant to
§ 18.2-268.2 or any similar ordinance of any
county, city or town and the results show a
blood alcohol content of 0.08 percent or more
by weight by volume or 0.08 grams or more per
210 liters of breath, or the person refuses
to submit to the breath test in violation of
§ 18.2-268.3 or any similar local ordinance,
and upon issuance of a warrant by the
magistrate for a violation of § 18.2-266 or
§ 18.2-268.3, or any similar local
ordinance, the person's license shall be
suspended immediately for seven days.

Code § 46.2-391.2. We need not address whether the statute

provides a civil or criminal sanction because as Halper teaches,

"a civil as well as a criminal sanction constitutes punishment

when the sanction as applied in the individual case serves the

goals of punishment." 490 U.S. at 448.

As a general principle, "revocation of a privilege

traditionally granted" is a characteristic of a remedial

sanction. Helvering v. Mitchell, 303 U.S. 391, 399 (1938).

However, this Court in Hoye v. Commonwealth, 12 Va. App. 587,

589, 405 S.E.2d 628, 629 (1991), recognized that the loss of a

privilege to drive is a forfeiture. See also Nelson v. Lamb, 195

Va. 1043, 1052, 81 S.E.2d 762, 767 (1954); Prichard v. Battle,

178 Va. 455, 463, 17 S.E.2d 393, 396 (1941). "[B]ecause of 'the

historical understanding of forfeiture as punishment,' there is a

strong presumption that any forfeiture statute does not serve

solely a remedial purpose." $405,089.23 U.S. Currency, 33 F.3d

at 1221.

In Austin, the Supreme Court analyzed the history of
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forfeitures, see ___ U.S. at ___, 113 S. Ct. at 2806-10, and

"conclude[d] . . . that forfeiture[s] generally . . . have been

understood, at least in part, as punishment." Id. at ___, 113

S. Ct. at 2810.
Austin . . . makes clear that at least three
principles are relevant to determining
whether a forfeiture constitutes
"punishment." First, because of "the
historical understanding of forfeiture as
punishment," there is a strong presumption
that any forfeiture statute does not serve
solely a remedial purpose. Second, where
such a statute focuses on the culpability of
the property owner by exempting innocent
owners or lienholders, it is likely that the
enactment serves at least in part to deter
and punish guilty conduct. Finally, where
[the legislature] has tied forfeiture
directly to the commission of specified
offenses, it is reasonable to presume that
the forfeiture is at least partially intended
as an additional deterrent to or punishment
for those violations of law.

$405,089.23 U.S. Currency, 33 F.3d at 1221 (citation omitted).

Citing the legislative intent to reduce "alcohol-related

crashes, fatalities, and injuries," the majority finds that the

license suspension is a remedial sanction "because its purpose is

to protect the public from intoxicated drivers and to reduce

alcohol-related accidents." Even though the legislature may have

intended a remedial purpose, the license suspension statute

contains significant punitive aspects that do not support a

remedial purpose. The summary suspension scheme embodied in Code

§ 46.2-391.2 automatically returns the license to the arrested

driver after seven days without requiring any further proceeding

or findings. Such a suspension proceeding serves to punish for
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the charged criminal act. In part, its purpose obviously is

deterrence and retribution. "[T]he very existence of the summary

sanction of the statute serves as a deterrent." Mackey v.

Montrym, 443 U.S. 1, 18 (1979).

Clearly, as the majority correctly observes, the legislature

intended to deter drunk driving by imposing a swift punishment of

suspension for violation of the statutory proscription. Indeed,

deterrence and punishment have long been considered the purposes

of license suspension for drunk driving. The Supreme Court of

Virginia has stated that "[i]t is not necessary to do violence to

logic or reasoning in arriving at the conclusion that the purpose

of the statute is not only to punish drunken drivers but to

prevent such drivers from using the highways to the hazard of

other citizens." Commonwealth v. Ellett, 174 Va. 403, 415, 4

S.E.2d 762, 767 (1939).

The license suspension is imposed immediately after the

accused is arrested and charged criminally for driving under the

influence. The revocation is tied directly to the determination

of probable cause that the offense has been committed.

Furthermore, the license suspension under Code § 46.2-391.2

is directly connected to the guilt of the accused. Indeed, the

statute states that
a subsequent dismissal or acquittal of all
the charges under §§ 18.2-266 and 18.2-268.3
or any similar local ordinances, for the same
offense for which a person's driver's license
or privilege to operate a motor vehicle was
suspended under § 46.2-391.2 shall result in
the immediate rescission of the suspension.

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Code § 46.2-391.4. Thus, the statute plainly exempts persons who

drink alcohol and drive but who are not criminally culpable.

Clearly, the suspension is to deter violation of the law and

punish criminal conduct.

In Code § 46.2-391.2, the legislature has tied forfeiture of

the driver's license directly to commission of the driving

offense. Not only does the forfeiture of the privilege to drive

hinge upon the commission of an offense, but as the Supreme Court

noted in Kurth Ranch, the forfeiture is characteristic of

punishment because "it also is exacted only after [the driver]

has been arrested for the precise conduct that gives rise to the

. . . [forfeiture] in the first place." ___ U.S. at ___, 114

S. Ct. at 1947. Persons who have been arrested constitute the

entire class of persons subject to the forfeiture. Moreover, if

the person is found not to have violated the drunk driving

statute, the license is automatically and immediately returned.

In large measure, the decision in Prichard v. Battle, 178

Va. 455, 17 S.E.2d 393 (1941), invoked the distinction between

civil and criminal matters. The Court determined that the

revocation of a license by the Division of Motor Vehicles in an

administrative proceeding because of a motor vehicle offense for

which the licensee was convicted was not punishment. Id. at 462,

17 S.E.2d at 395. For purposes of double jeopardy analysis the

Halper Court has clearly held that such a distinction is no

longer dispositive. "[C]ivil proceedings may advance punitive as

well as remedial goals." Halper, 490 U.S. at 447. Thus, the

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Supreme Court held "that in determining whether a particular

civil sanction constitutes criminal punishment, it is the

purposes actually served by the sanction in question, not the

underlying nature of the proceeding giving rise to the sanction,

that must be evaluated." Id. at 447 n.7.

In Ellett, "the sole question . . . [presented was] whether

the revocation of the [driver's] permit is, under the statute, a

part of the punishment for the crime charged." 174 Va. at 407, 4

S.E.2d at 764. The statute at issue in Ellett provided that
"'[t]he judgment of conviction, ***, shall of itself operate to

deprive the person convicted of the right to drive, ***.'" Id.

at 411, 4 S.E.2d at 765. The Court noted the "distinction

between the punishment provided by statute to be fixed by a court

or jury upon conviction of a specified offense, and the legal

consequences affecting the rights and privileges of the offender

after his conviction." Id. at 415, 4 S.E.2d at 767. However,

the Court did not hold that the loss of a license was not

punishment; rather it stated that "[i]t is not necessary to do

violence to logic or reasoning in arriving at the conclusion that

the purpose of the statute is not only to punish drunken drivers,
but to prevent such drivers from using the highways to the hazard

of other citizens." Id. (emphasis added).

I would hold that although the license suspension statute

has remedial characteristics, it also has a punitive aspect that

"constitutes 'punishment' for the purpose of double jeopardy

analysis." Halper, 490 U.S. at 443. To cure the double jeopardy

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obstacle, Halper ordered the reduction of the civil fine, the

second punishment, so that it had only a remedial purpose.

Halper, 490 U.S. at 449-50. This case presents a different

problem. The criminal prosecution followed the license

suspension. The purely punitive part of the license suspension

cannot now be separated from the remedial aspects. Because the

license suspension constitutes punishment, the second punishment

for driving under the influence violates double jeopardy.
This analysis does not extend the United States Supreme

Court's holdings. Regardless of the civil or criminal label, an

individual may not in separate proceedings be punished twice for

the same offense. If two punishments do occur, the challenged

punishment must be analyzed under Halper to determine if the

remedial and punitive aspects may be severed. If the two

purposes are intertwined, the second punishment must be struck

down. As the Supreme Court stated when it discussed the Double

Jeopardy Clause's proscription against multiple punishments,

"[t]his constitutional protection is intrinsically personal. Its

violation can be identified only by assessing the character of

the actual sanctions imposed on the individual by the machinery

of the state." Id. at 447.

Because I "cannot conclude that [the statutory] forfeiture

. . . serves solely a remedial purpose," Austin, ___ U.S. at ___,

113 S. Ct. at 2812 (emphasis added), I would hold that Tench was

twice punished for the same offense and I would reverse the

conviction.
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