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Janes v. State6/26/1998
uld seldom, if ever, be swift. Law enforcement officers would be required to testify regardless of whether the defendant subpoenaed them. The State would also be required to present witnesses to establish that defendant was in fact driving and was doing so while impaired, and experts will often be required to testify concerning the accuracy of the various chemical testing devices."
People v. Moore, 561 N.E.2d 648, 652 (Ill. 1990); see also State v. Bishop, supra, 832 P.2d at 796.
In addition to the cases cited above, specifically rejecting a double jeopardy-based collateral estoppel argument, there are a number of cases in which such a rejection is implicit from the refusal of the court to apply collateral estoppel on any basis to preclude a criminal prosecution for driving while intoxicated or while under the influence of alcohol. See Gikas v. Zolon, 863 P.2d 745 (Cal. 1993); People v. Moore, supra, 561 N.E.2d 648; State v. MacLean, 560 A.2d 1088 (Me. 1989); State v. O'Rourke, 442 S.E.2d 137 (N.C. App. 1994) (no privity between prosecutor and Commissioner of Motor Vehicles); State v. DeWhitt, 727 P.2d 151 (Or. App. 1986); People v. Lalka, 449 N.Y.S.2d 579 (City Ct. 1982). Compare Brower v. Killens, 472 S.E.2d 33 (N.C. App. 1996), holding that a finding in the criminal case that the police did not have probable cause to arrest the defendant precluded relitigation of that issue in a subsequent administrative proceeding.
The concern underlying the decisions noted above is that, in most instances, 16-205.1-type proceedings do not sufficiently resemble court proceedings, even though the agency acts in a quasi-judicial capacity, to serve as the basis of a constitutional estoppel. They are ordinarily informal in nature, intended to provide minimally necessary due process before temporarily suspending an important privilege, and, as noted, the State is normally not represented by counsel and often offers no evidence beyond the hearsay reports of the officer and the toxicologist. Upon the authority noted, and in the absence of any to the contrary, we conclude that double jeopardy-based collateral estoppel does not preclude the prosecution of a case brought under 21-902 because of a ruling, finding, or decision made in a proceeding under 16-205.1.
Common Law Collateral Estoppel
As we have noted, there is some division of authority as to whether, under common law principles, the resolution of an issue of law or fact by an administrative agency can preclude the relitigation of that issue in a subsequent criminal proceeding. Courts in California and Michigan have applied collateral estoppel to preclude a prosecution for welfare fraud after an administrative agency determined that there was no fraud - that the father of the children did not live in the defendant's home. See People v. Sims, 651 P.2d 321 (Cal. 1982); People v. Watt, 320 N.W.2d 333 (Mich. App. 1982). See also United States v. Abatti, 463 F. Supp. 596 (S.D. Cal. 1978), dismissing a tax evasion case based on a ruling of the Tax Court that there was no deficiency. Other courts have reached a different conclusion, ruling either that "cross-over" collateral estoppel does not apply between administrative and criminal proceedings or that, while it might in some circumstances, it does not generally. See Debra E. Wax, Annotation, Doctrine of Res Judicata or Collateral Estoppel as Barring Relitigation in State Criminal Proceedings of Issues Previously Decided in Administrative Proceedings, 30 A.L.R. 4th 856 (1984 and Supp. 1997). See also United States v. Alexander, 743 F.2d 472 (7th Cir. 1984); United States v. Lasky, 600 F.2d 765 (9th Cir. 1979); United States v. Payne, 2 F.3d 706 (6th Cir. 1993). It is of some in
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