Wilson v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Willis, Bray and Overton
Argued at Norfolk, Virginia

JOE EDGAR WILSON
OPINION BY
v. Record No. 1419-95-1 JUDGE NELSON T. OVERTON
NOVEMBER 12, 1996
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG AND
COUNTY OF JAMES CITY
William L. Person, Jr., Judge
John D. Konstantinou (McKenna & Konstantinou,
on brief), for appellant.

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

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

This appeal poses the question whether the administrative

impoundment of defendant's vehicle pursuant to Code § 46.2-301.1

combined with the later criminal sentence for driving on a

suspended license violates the Double Jeopardy Clause of the

United States Constitution. We hold that it does not, and we

affirm the conviction.

I

On February 2, 1995, Joe Edgar Wilson was stopped and

charged with driving on a suspended or revoked license in
violation of Code § 46.2-301. On the same day, his vehicle was

impounded administratively for thirty days pursuant to Code

§ 46.2-301.1. 1 On February 8 Wilson received written notice of

the impoundment, and he petitioned the general district court for

review on February 16. The next day a hearing was held and

Wilson's petition to rescind the impoundment was denied. At the

end of the administrative impoundment period, Wilson was required

to pay approximately $350 in removal and storage costs to the

approved private towing company in order to release his vehicle.

A date was set for trial on the underlying offense.
Wilson filed a plea of former jeopardy, but the general

district court on March 16, 1995, overruled the plea and

1
Code § 46.2-301.1 became effective July 1, 1994. It
authorizes the administrative impoundment of a motor vehicle
being driven by any person who (i) has had his license suspended
or revoked for driving while intoxicated or (ii) has been
adjudged as an habitual offender based in whole or in part on an
alcohol-related offense.
Upon arrest of such a person driving after his privilege to
drive has been suspended or revoked, the arresting law-
enforcement officer impounds the vehicle for thirty days.
§ 46.2-301.1(A). The statute requires notice of the impoundment
to be served on the arrested person, and that person may petition
the general district court for review of the impoundment.
§ 46.2-301.1(A-C). The general district court must give this
matter precedence over all other matters on the docket. If the
person proves by a preponderance of the evidence that the
arresting officer did not have probable cause to issue the
warrant, the court shall rescind the impoundment.
§ 46.2-301.1(B). Likewise, any dismissal or acquittal of the
underlying charge automatically rescinds the impoundment.
§ 46.2-301.1(D). In case of rescission, the Commonwealth must
pay or reimburse the person for reasonable costs of the
impoundment. Otherwise, the costs of impoundment, including
removal and storage expenses, must be paid by the offender prior
to the vehicle's release. § 46.2-301.1(A).

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convicted Wilson of driving on a suspended license. Wilson

appealed to the circuit court, renewing his plea of former

jeopardy. He argued that the administrative impoundment of his

vehicle constituted punishment in a separate proceeding for the

same offense, and that therefore a second punishment would place

him twice in jeopardy. On June 15, 1995, after a hearing on the

issue, the judge overruled his plea. At a trial on June 21,

1995, Wilson was convicted of driving on a suspended license and

sentenced to six months in jail and a $200 fine. His license was

also revoked for one year. He appeals his conviction.
II

The United States Constitution provides that no person "be

subject for the same offence to be twice put in jeopardy of life

or limb." U.S. Const. amend. V. "That is, the Double Jeopardy

Clause 'prohibits merely punishing twice or attempting a second

time to punish criminally, for the same offence.'" Witte v.

United States, 115 S. Ct. 2199, 2204 (1995) (quoting Helvering v.
Mitchell, 303 U.S. 391, 399 (1938)). Wilson contends that the

administrative impoundment of his vehicle constituted punishment,

placing him in jeopardy for the purposes of the Double Jeopardy

Clause so as to prohibit the second criminal sanction against him

for the same offense.

The Double Jeopardy Clause applies only if an action imposes

punishment. Until recently, most courts determined whether a

sanction constituted "punishment" by extracting a general

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definition of punishment from various Supreme Court cases. The

Supreme Court in these cases discussed whether particular

sanctions are punishment for the purposes of a particular

constitutional protection. See Department of Revenue v. Kurth

Ranch, 114 S. Ct. 1937 (1994) (marijuana tax in context of Double

Jeopardy); Austin v. United States, 509 U.S. 602 (1993) (civil

forfeiture in context of Excessive Fines Clause of Eighth

Amendment); United States v. Halper, 490 U.S. 435 (1989) (civil

fine in context of double jeopardy). State and federal courts

determined whether a sanction constituted punishment only after

studying all of the cases and applying elements of each to the

case at bar.
Our own recent double jeopardy case anent administrative

license suspensions, Tench v. Commonwealth, 21 Va. App. 200, 462

S.E.2d 922 (1995), undertook a similar analysis. Tench examined

the goals of the sanction and whether they were remedial or

punitive, a "standard" derived from Halper and developed in

successive cases. While we recognized that Austin did not
concern double jeopardy and did not control, we ultimately rested

our decision on teachings from both Halper and Kurth Ranch,

holding that "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." Id. at 208, 462 S.E.2d at 925.

We were not alone in this understanding. The Court of

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Appeals for the Ninth Circuit looked to Kurth Ranch, Austin, and

Halper for a definition of punishment in United States v.

$405,089.23, 33 F.3d 1210 (9th Cir. 1994). The Ninth Circuit

believed that a reading of those cases as a whole formulated "a

new test for determining whether a nominally civil sanction

constitutes 'punishment' for double jeopardy purposes."

$405,089.23, 33 F.3d at 1218-19. The Sixth Circuit adopted a

similar rationale in United States v. Ursery, 59 F.3d 568 (6th

Cir. 1995).
The Supreme Court reversed both decisions. Ursery v. United

States, 116 S. Ct. 2135 (1996). The Court criticized the Courts

of Appeals for "misreading" Halper, Austin, and Kurth Ranch.

Ursery, 116 S. Ct. at 2144. Ursery effectively limited the

discussions of "punishment" outlined in each of those three cases

"to the specific contexts of each particular case . . . and often

inapplicable to other contexts." Gress v. Board of Parole, No.

CA A85110, 1996 WL 492332, at *4 (Ore. Ct. App. Aug. 28, 1996)

(explaining application of Ursery to sex offender registrations).
Halper involved a civil penalty. The rule announced in

Halper declared that when a civil penalty "bears no rational

relationship 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 a court must compute the government's

damages to determine if the penalty was excessive. Halper, 490

U.S. at 449-50. If the penalty is "so extreme and so divorced

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from the Government's damages," then it may constitute

punishment. Id. at 442. The Court in Ursery limited this rule

to the context of this type of sanction because of the unique

characteristics of a fixed-penalty provision. Ursery also

limited the holding in Austin, reiterating that "[t]he holding in

Austin was limited to the Excessive Fines Clause of the Eighth

Amendment, and we decline to import the analysis of Austin into

our double jeopardy jurisprudence." Id. at 2147. Finally, Kurth
Ranch concerned a tax statute, which "serve[s] a purpose quite

different from civil penalties, and Halper's method of

determining whether the exaction was remedial or punitive 'simply

does not work in the case of a tax statute.'" Kurth Ranch, 114

S. Ct at 1948 (quoting id. at 1950 (Rehnquist, C.J.,

dissenting)); see Ursery, 116 S. Ct. at 2144.

Unfortunately, not all civil sanctions fit neatly into the

categories of monetary civil fines, civil forfeitures, or tax

statutes. Other sanctions imposed may include sex offender

registration, administrative license suspensions, and suspensions

from program participation. The administrative vehicle

impoundment in the instant case lies within this miscellaneous

group.

III

A temporary impoundment of a vehicle is not a forfeiture,

although it has characteristics of a forfeiture. Being

temporarily deprived of one's vehicle until one pays a fee to

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release it also resembles a civil penalty. As such, at first

glance neither Halper nor Ursery clearly control this issue. 2

Justice Stevens, dissenting in Ursery, contended that Halper

announced a "general rule for applying the Double Jeopardy Clause

to civil proceedings." Ursery, 116 S. Ct. at 2156 (Stevens, J.,

dissenting). Attractive as that approach may be, the majority

explicitly rejected it. Id. at 2145 n.2. The Court objected to

an application of Halper in a forfeiture context on two main

grounds: (1) Halper involved an in personam proceeding rather
than an in rem proceeding; and (2) the goals of a fixed-penalty

provision differed materially from the goals of a forfeiture.

Id. at 2144.

"The narrow focus of Halper followed from the distinction

that we have drawn historically between civil forfeiture and

civil penalties." Id. A civil penalty is an in personam

proceeding; a civil forfeiture is an action in rem. In the

former the wrongdoer is punished; in the latter the property is

proceeded against, found guilty, and condemned. Id. at 2145

(citing Various Items of Personal Property v. United States, 282

U.S. 577, 580-81 (1931)). Thus, the wrongdoer is not subject to

a second in personam penalty, and his constitutional rights are

not offended. "[T]he Double Jeopardy Clause applies only to in

personam punishments of the wrongdoer and not in rem forfeitures

. . . ." Ursery, 116 S. Ct. at 2150 (Kennedy, J., concurring);
2
See note 3, infra.

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see Various Items, 282 U.S. at 581.

The Court in Ursery also noted that the purposes of the

sanction in Halper differed from those in Ursery. Halper

involved a fixed-monetary penalty. "Civil penalties are designed

as a rough form of 'liquidated damages' for the harms suffered by

the Government as a result of a defendant's conduct." Ursery,

116 S. Ct. at 2145; see Rex Trailer Co. v. United States, 350

U.S. 148, 153-54 (1956). Whether the penalty becomes so extreme

or so divorced from the nonpunitive goals of the sanction so as

to constitute "punishment" may be determined by balancing the

government's harm against the civil penalty. Ursery, 116 S. Ct.

at 2145. Because the fixed-monetary penalty must be weighed

against the government's losses, those losses must be quantified.

This methodology does not transfer easily to a civil forfeiture

analysis. Ursery, 116 S. Ct. at 2145. "[I]t is virtually

impossible to quantify, even approximately, the nonpunitive

purposes served by a particular civil forfeiture." Id. Without

the ability to quantify the government's losses, as in the case

of a civil penalty, the Halper approach founders.
We refuse to apply Halper in the case before us for the same

reasons. The administrative impoundment of Wilson's vehicle was

an in rem proceeding, not an in personam proceeding. "Actions in

personam and actions in rem differ in that the former are

directed against specific persons and seek personal judgments,

while the latter are directed against the thing or property or

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status of a person and seek judgments with respect thereto as

against the world." O'Hara v. The Pittson Co., 186 Va. 325, 336,

42 S.E.2d 269, 275 (1947) (quoting 1 C.J.S. Actions § 52). A

proceeding against the property and not the owner is "in rem

wholly and not in personam. It is not a criminal proceeding. It

is a civil case." Quidley v. Commonwealth, 190 Va. 1029, 1036,

59 S.E.2d 52, 56 (1950). Wilson was personally placed in

jeopardy and punished only once: at his trial for the offense of

driving without a valid license. When his vehicle was

administratively impounded, it was the subject of the action, not

the driver. From the outset, the in rem character of the
impoundment distinguishes this sanction from that in Halper.

Halper's balancing also has no place in this case. Wilson's

vehicle was not impounded to compensate the government for harms

done, but rather to prevent Wilson from violating the law again

and to ensure the safety of the Commonwealth's citizens. We

cannot quantify the value of these nonpunitive purposes, nor, for

that matter, can we quantify the value of Wilson's deprivation of

property for thirty days. Thus, a balancing is impossible.

The Louisiana Court of Appeals encountered this same issue

with an administrative license suspension and came to the same

conclusion: "In the context of this case, Halper does not apply.
It would be impossible to apply a methodology which involves an

accounting of the Government's damages and costs to determine

whether the suspension of one's driving privileges is remedial or

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punitive." State v. Sonnier, 679 So. 2d 1011, 1012 (La. Ct. App.

1996); accord Ex parte Avilez, No. 04-95-00561-CR, 1996 WL 525478

(Tex. Ct. App. Sept. 18, 1996). Likewise, cases of disbarment

and suspensions from participation in government programs have

applied Ursery's analysis. See United States v. Glymph, 96 F.3d

722 (4th Cir. 1996); United States v. Borjesson, 92 F.3d 954 (9th

Cir. 1996). "In the case of . . . a non-monetary sanction,

quantification is out of the question. Ursery, not Halper, must

guide us." Borjesson, 92 F.3d at 956.

Following the same rationale that led the Supreme Court to

the traditional two-part test in United States v. One Assortment

of 89 Firearms, 465 U.S. 354 (1984), and its forebears, we

undertake our Double Jeopardy analysis in the manner of Ursery. 3

IV

Ursery used a two-part test taken from 89 Firearms. First,

3
Ursery handed down a rule for civil forfeitures only. See
Deutschendorf v. People, 920 P.2d 53, 59 (Colo. 1996) (finding
Ursery limited to the civil forfeiture context); People v.
Ratliff, 669 N.E.2d 122, 126 (Ill. App. Ct. 1996) (same). An
administrative vehicle impoundment is not a forfeiture, yet we
are confident that the test outlined in Ursery imports well into
this area. The Court in Ursery stated that it employed the "two-
part test used in 89 Firearms." Ursery, 116 S. Ct. at 2147.
This two-part test evolved from a line of Supreme Court cases
concerning both civil fines and civil forfeitures. Id. at 2151
(Kennedy, J., concurring). 89 Firearms cites without distinction
cases about civil fines for tax evasion, Helvering v. Mitchell,
303 U.S. 391 (1938), civil penalties in a self-incrimination
context, United States v. Ward, 448 U.S. 242 (1980), and
forfeiture of citizenship in a Sixth Amendment context, Kennedy
v. Mendoza-Martinez, 372 U.S. 144 (1963). 89 Firearms, 465 U.S.
at 362-65. The principles behind the Ursery test, therefore, can
be applied appropriately to an administrative impoundment.

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the court must decide whether the legislature intended the

sanction to be criminal or civil. Secondly, even if the

legislature intended the sanction to be civil, the court must

examine whether the sanction is "so punitive in form and effect

as to render [it] criminal despite [the legislature's] intent to

the contrary." Ursery, 116 S. Ct. at 2148.

The General Assembly doubtless intended this to be a civil

proceeding. As noted above, the impoundment of Wilson's vehicle

was an in rem proceeding. "[A]ctions in rem have traditionally

been viewed as civil proceedings." Id. at 2147 (quoting 89

Firearms, 465 U.S. at 363). The action targets the vehicle, not

the driver; criminal proceedings are not involved at this stage.

If the object of the action was not sufficient to classify

the sanction as civil, other indications exist that the

administrative impoundment was created as a civil proceeding.

The provisions of the section allow the impoundment of the

vehicle through a summary administrative procedure. The

arresting officer, not a judge, impounds the vehicle. The

vehicle is automatically released after thirty days if the owner

does not intervene. Creation of these "distinctly civil

procedures" signals a clear intent for the impoundment to be

civil rather than criminal. Id. at 2148; cf. Simmons v.

Commonwealth, ___ Va. ___, 475 S.E.2d 806 (1996) (holding that in

an administrative license suspension, "[w]hat is involved is

neither more nor less than the term administrative suspension

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implies, an administrative act, not a judgment by a court of

competent jurisdiction"); Nicely v. Commonwealth, __ Va. App.

___, ___ S.E.2d ___ (1996).

The "innocent owner" exceptions under Code § 46.2-301.1(B)

do not affect the result without more indication of an intent to

punish. See Ursery, 116 S. Ct. at 2149. Similarly, the fact

that the impoundment was tied to criminal activity holds no

import. See id.; 89 Firearms, 465 U.S. at 365-66. "By itself,

the fact that a forfeiture statute has some connection to a

criminal violation is far from the 'clearest proof' necessary to

show that a proceeding is criminal." Ursery, 116 S. Ct. at 2149.

Additionally, Code § 46.2-301.1 does not require the

Commonwealth to prove scienter before impounding the vehicle,

another characteristic of a civil proceeding. See id.

Under the Ursery framework we next inquire into the actual

effect of the sanction. A civil forfeiture may yet be subject to

the double jeopardy prohibition if the "clearest proof" indicates

that the forfeiture is "so punitive either in form or effect" as

to equate to a criminal proceeding. 89 Firearms, 465 U.S. at

365; United States v. Ward, 448 U.S. 242, 248 (1980); see Fleming

v. Nestor, 363 U.S. 603, 617 (1960). This standard allows

certain punitive effects, as long as important nonpunitive goals

are served. Ursery, 116 S. Ct. at 2148.

Nonpunitive goals in the instant case are evident. Wilson

had lost his privilege to drive before this incident; he drove

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nevertheless. Relieving him of his vehicle for thirty days

served numerous remedial purposes. Without his vehicle he cannot

engage in an activity that he was legally barred from

undertaking. Thirty days without the temptation to drive may

force Wilson to change his antisocial lifestyle, which he was

required to do the first time his license was suspended and which

he apparently did not do. The remedial purposes of the

administrative impoundment far outweigh any incidental punitive

effects that may be felt by the defendant. Cf. Brame v.

Commonwealth, ___ Va. ___, 476 S.E.2d 177 (1996) (reaching the

same conclusion in the case of an administrative license

suspension). Thus, the sanction is not "so punitive" as to

render it criminal.

For the reasons stated, we hold that the administrative

impoundment of Wilson's vehicle did not place him in jeopardy for

the purposes of the Double Jeopardy Clause. Accordingly, we

affirm his subsequent conviction.
Affirmed.

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