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State v. Becker9/20/1995
ENTRY ORDER
In the above-entitled cause, the Clerk will enter:
Defendant appeals, claiming that a criminal prosecution for driving under the influence following an administrative license suspension arising from the same incident constitutes double jeopardy and is prohibited by the Sixth Amendment to the United States Constitution, applicable to Vermont under the Fourteenth Amendment. We affirm.
We addressed this exact issue in State v. Strong, 158 Vt. 56, 605 A.2d 510 (1992). Based on the test set forth by the United States Supreme Court in United States v. Halper, 490 U.S. 435, 448-49 (1989), we wrote in Strong that a civil sanction will be considered punitive if it can be fairly characterized only as a deterrent or retribution. Strong, 158 Vt. at 62, 605 A.2d at 514. A statute designed primarily to serve remedial purposes which incidentally has a punitive effect will not be considered punishment for double jeopardy purposes. Id.; see also Halper, 490 U.S. at 447 n.7 (noting that even remedial civil sanctions "carry the sting of punishment"). Applying the Halper rule to the facts in Strong, we held that the constitutional prohibition against double jeopardy does not bar criminal prosecution for a DUI offense after suspension of the defendant's driver's license in a civil proceeding resulting from the same underlying incident. 158 Vt. at 57, 605 A.2d at 511.
Defendant contends that in light of recent United States Supreme Court decisions, we are compelled to overrule Strong. We are not persuaded by defendant's argument. Moreover, we believe that the principal case cited by defendant to support his double jeopardy argument, Department of Revenue of Mont. v. Kurth Ranch, 114 S.Ct. 1937 (1994), actually lends support to our analysis and holding in Strong. In Kurth, the issue before the United States Supreme Court was whether a Montana state tax imposed on the possession and storage of illegal drugs constituted punishment in the context of double jeopardy. Id. at 1939-40. The Court held that the drug tax departed so far from normal revenue laws that it had an "unmistakable punitive character," and therefore was a form of punishment for the purpose of double jeopardy analysis. Id. at 1948.
In Strong, we interpreted the holding in Halper narrowly, emphasizing that finding a particular civil sanction to be punitive is "a rule for the rare case." 158 Vt. at 62, 605 A.2d at 514. Kurth confirms our interpretation of Halper. In Kurth, although the Court held that the Montana drug taxing scheme was punitive, it cautioned that a tax should not be invalidated merely because it might be oppressive or the legislature's motive was somehow suspect. 114 S.Ct. at 1946. The fact that a remedial civil sanction has punitive elements does not necessarily render it punishment for double jeopardy purposes. Rather, a civil sanction will be considered punitive if it can fairly be characterized only as a deterrent or retribution. Id. at 1945 (citing Halper, 490 U.S. at 448-49). In finding the Montana drug tax to be essentially punitive, the Court emphasized the egregious facts in Kurth. It noted that the drug tax is "exceptional," and " aken as a whole, drug tax is a concoction of anomalies, too-far removed in crucial respects from a standard tax assessment to escape characterization as punishment for the purpose of Double Jeopardy analysis." Id. at 1948 (tax levied on goods that taxpayer never lawfully possessed has unmistakable punitive character).
In contrast to the unmistakably punitive drug tax in Kurth, we reaffirm our conclusion in Strong that "the non-punitive purpose of the license suspension is. . .clear and compelling." Strong, 158 Vt. at 62, 605 A.2d at
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