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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