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Glasrud v. City of Laramie2/21/1997
here we must determine whether an administrative license suspension penalty is civil/remedial, or criminal/punishment.
Nickelson's five criteria are:
(1) Type of offense. Is the offense one which is traditionally or by its very nature criminal ? If not, it may be considered to be civil.
(2) Penalty. What is the penalty and how severe is it? This has been isolated as the most significant factor, but it is by no means conclusive. Imprisonment may not be used as punishment for a civil offense. The imposition of a fine or penalty may be entirely consistent with an offense being civil in nature. On the other hand, a fine or penalty may become so severe in the context of the circumstances in which it is imposed that the offense becomes criminal in nature and the constitutional protections associated with criminal prosecutions are necessarily called into play. An arbitrary dollar figure cannot be rigidly set as the touchstone. Rather, the amount of the fine must be weighed in view of all the circumstances relevant to the offense in question.
(3) Collateral Consequences. What other consequences are in the offing for the defendant in addition to the fine? Are there such collateral consequences and are they regulatory in nature or do they impose additional punishment?
(4) Punitive Significance. This is perhaps the most difficult factor to weigh and the element of subjectivity must be scrupulously avoided. We must inquire whether the offense is one primarily motivated by punitive intent. Is the statute plainly one that inflicts "punishment"? Does the judgment have stigmatizing or condemnatory significance?
(5) Arrest and Detention. Are the pretrial practices familiar to the criminal law utilized? If they are, that may serve to tip the balance in favor of a determination that the offense is criminal.
Nickelson, 607 P.2d at 909.
Glasrud contends WYO. STAT. § 31-6-102, the administrative license suspension statute, constitutes punishment for purposes of double jeopardy. WYO. STAT. § 31-6-102 provides that a person arrested for a violation of WYO. STAT. § 31-5-233, the drunk driving criminal statute, is deemed to have given consent to a chemical test or tests of his blood, breath or urine to determine blood-alcohol concentration. WYO. STAT. § 31-6-102 (Cum.Supp. 1996). If a person submits to chemical testing and the test result indicates a blood alcohol concentration of 0.10% or more, the department suspends the person's driver's license or privilege to operate a motor vehicle in this state for ninety days. WYO. STAT. § 31-6-102(e) (Cum.Supp. 1996).
Applying the five factors from Nickelson to this statute, we find:
(1) The offense is civil in nature. The purpose of the implied consent statute is to facilitate the removal of drunk drivers from our highways. Van Order v. State, 600 P.2d 1056, 1058 (Wyo. 1979) (citing State v. Chastain, 594 P.2d 458, 461 (Wyo. 1979), overruled on other grounds, Olson v. State, 698 P.2d 107 (Wyo. 1985)). This indicates the remedial purpose of the statute.
(2) The penalty for a violation consists of suspension of the driver's license for six months for the first offense and eighteen months for the second or subsequent offense if the driver fails to submit to the tests; or if he submits to the tests and the results indicate a blood alcohol concentration of ten one-hundredths of one percent (0.10%) or more, the department suspends the license for ninety days, subject to the issuance of a temporary license, which is valid for thirty days. WYO. STAT. 31-6-102(a)(ii), (e), (f) (Cum.Supp. 1996). Further, if a criminal conviction results from t
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