Glasrud v. City of Laramie2/21/1997
ith all doubt resolved in its favor." Snyder v. State, 912 P.2d 1127, 1129 (Wyo. 1996) (quoting Luplow v. State, 897 P.2d 463, 466 (Wyo. 1995)). " ne who would deny the constitutionality of a statute has a heavy burden. The alleged unconstitutionality must be clearly and exactly shown beyond any reasonable doubt." Nickelson v. State, 607 P.2d 904, 910 (Wyo. 1980).
DISCUSSION
The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution provides: " or shall any person be subject for the same offense to be twice put in jeopardy of life or limb." United States v. Ursery, ___ U.S. ___, ___, 116 S.Ct. 2135, 2139, 135 L.Ed.2d 549 (1996). The Fifth Amendment is enforceable against the states through the Fourteenth Amendment, and the Wyoming Constitution provides the same protection, stating: "nor shall any person be twice put in jeopardy for the same offense." Cook v. State, 841 P.2d 1345, 1347 (Wyo. 1992) (citing WYO. CONST. Art. 1, § 11; Vigil v. State, 563 P.2d 1344, 1350 (Wyo. 1977); Hopkinson v. State, 664 P.2d 43, 68 (Wyo. 1983), cert. denied, 464 U.S. 908, 104 S.Ct. 262, 78 L.Ed.2d 246 (1983)). The Double Jeopardy Clause "protects against a second prosecution for the same offense after acquittal, against a second prosecution for the same offense after conviction, and against multiple punishments for the same offense." Cook, 841 P.2d at 1347 (citations omitted).
"The law of double jeopardy is `confused, inconsistent, and less than a model of clarity.'" Cook, 841 P.2d at 1347 (citations omitted). The law became even less clear in the wake of three United States Supreme Court opinions: United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989); Austin v. United States, 509 U.S. 602, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993); and Dept. of Revenue of Montana v. Kurth Ranch, 511 U.S. 767, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994). In light of these opinions, defendants began arguing that the Supreme Court had expanded double jeopardy protection. Lower court judges in at least twenty-one states accepted the double jeopardy argument in drunk driving /administrative license suspension cases. Jennifer E. Dayok, Comment, Administrative Driver's License Suspension: A Remedial Tool That Is Not In Jeopardy, 45 AM. U.L.REV. 1151, 1157 (1996). However, the Court attempted to set the record straight in its most recent double jeopardy opinion, United States v. Ursery, ___ U.S. ___, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996).
Announcing that "Halper dealt with in personam civil penalties under the Double Jeopardy Clause; Kurth Ranch with a tax proceeding under the Double Jeopardy Clause; and Austin with civil forfeitures under the Excessive Fines Clause," the Court distinguished each of those cases from in rem civil forfeitures for purpose of the Double Jeopardy Clause. Ursery, ___ U.S. at ___, 116 S.Ct. at 2147. The Court denied any jurisprudential shift in Halper, Austin and Kurth Ranch and limited the use of those cases to their facts. Id. As such, because this case involves the suspension or revocation of a driver's license and does not involve the excessive civil fines of Halper, the tax of Kurth Ranch, or a challenge under the Excessive Fines Clause like Austin, those cases are of little import to our analysis and we turn to Wyoming case law to analyze the certified questions presented.
In Nickelson v. State, 607 P.2d 904, 909 (Wyo. 1980), we adopted a five criteria test to determine whether a penalty imposed by the State is "civil" or "criminal." Although Nickelson involved the right to remain silent in a proceeding in which the appellants contended the penalty was criminal in nature, the analytical framework is appropriate in this case, w
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