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STATE v. SAVARD6/6/1995
In this consolidated appeal, we are asked to determine whether a criminal prosecution for operating under the influence of intoxicating liquor (OUI), 29 M.R.S.A. § 1312-B (Pamph. 1994), following an administrative hearing affirming the suspension of a motor vehicle driver's license for OUI, 29 M.R.S.A. § 1311-A (Pamph. 1994), is barred by the constitutional prohibitions against double jeopardy. We consider the denials of motions to dismiss the criminal complaints against John Savard (Androscoggin County, Delahanty, C.J.) and Kelly Greeley (Kennebec County, Perkins, A.R.J.). Because we conclude that the constitutional prohibitions against double jeopardy do not bar the criminal prosecutions, we affirm the orders of the Superior Court.
Each defendant's license was automatically suspended for 90 days for driving with a blood alcohol level of .08% or more by weight of alcohol in their blood, after which each requested an administrative hearing. See M.R.S.A. 1311-A(2) & (7). The suspension of each defendant's license was ultimately sustained. See 29 M.R.S.A. § 1311-A(8). Thereafter, the State pursued separate criminal complaints against each of the defendants pursuant to 29 M.R.S.A. § 1312-B. Each defendant filed a motion to dismiss the respective complaint on the ground that the constitutional prohibitions against double jeopardy barred a further punishment for the same offense. Those motions were denied and appeals followed.
As a general rule, appeals may be taken only from final judgments. State v. Lebroke, 589 A.2d 941, 942 (Me. 1991). A pretrial order, however, denying a motion to dismiss based on double jeopardy is immediately appealable under the exception to the final judgment rule that permits appeals when substantial rights of a party will be irreparably lost if review is delayed until final judgment. Lebroke, 589 A.2d at 942-43.
The Double Jeopardy Clauses of the United States Constitution and the Maine Constitution protect a criminal defendant from three distinct abuses: a second prosecution for the same offense after acquital; a second prosecution for the same offense after conviction; and multiple punishments for the same offense. United States v. Halper, 490 U.S. 435, 440, 109 S.Ct. 1892, 1897, 104 L.Ed.2d 487 (1989). Before us, the defendants complain that they will be twice punished for the same crime. The constitutional prohibitions against double jeopardy will bar either defendant's criminal prosecution only if (1) punishment is for the same offense; (2) the suspension and the criminal prosecution occurred in a separate proceeding; and (3) the suspension constitutes punishment. Department of Revenue of Montana v. Kurth Ranch, 511 U.S. ___, 114
I.
A defendant is protected not only from twice being tried for the same offense, but also from double punishment even when one of the actions does not involve a trial. See Halper, 490 U.S. at 440, 109 S.Ct. at 1897; United States v. McCaslin, 863 F. Supp. 1299, 1305 (W.D.Wash. 1994). Although some courts have treated separate civil forfeiture actions and criminal prosecutions for the same offense as "a single coordinated prosecution," thus not implicating the constitutional prohibition, see United States v. One Single Family Residence, 13 F.3d 1493 (11th Cir. 1994); United States v. Millan, 2 F.3d 17 (2d Cir. 1993), cert, denied, ___ U.S. ___, 114 S.Ct. 922, 127 L.Ed.2d 215 (1994), the United States Supreme Court has suggested a contrary rule. Even when filed close in time, the Court has indicated that a civil action aimed at exacting a penalty and a criminal prosecution arising out of the same offense constitute two separate proceedings when pursued separately and concluded at different times. Kurth Ra
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