Opinion
October 31, 1996
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department.
O'Connell O'Connell, Plattsburgh (Cynthia L. O'Connell of counsel), for petitioner. Ronald J. Briggs, District Attorney of Essex County, Elizabethtown (Debra A. Whitson of counsel), for respondents.
On June 9, 1995, petitioner was arrested for driving while intoxicated (hereinafter DWI) and arraigned in Town Court of the Town of Jay, Essex County. At the completion of his arraignment, petitioner's driving privileges were suspended pursuant to the mandatory provisions of Vehicle and Traffic Law § 1193 (2) (e) (7). Thereafter, petitioner was indicted and arraigned in Essex County Court on a five-count indictment which included charges of operating a motor vehicle while having a blood alcohol concentration of .10% or more ( see, Vehicle and Traffic Law § 1192) and operating a motor vehicle in an intoxicated condition ( see, Vehicle and Traffic Law § 1192).
Petitioner entered pleas of not guilty and subsequently filed an omnibus motion seeking, inter alia, dismissal of the DWI charges upon the ground that a criminal prosecution, following the suspension of his license, would subject him to multiple punishment for the same offense in violation of the Fifth Amendment of the US Constitution. Respondent Supreme Court Justice Jan H. Plumadore, by decision/order dated October 7, 1995, rejected petitioner's double jeopardy argument and denied petitioner's motion to dismiss the indictment. In December 1995, petitioner initiated the instant proceeding in this Court seeking to prohibit his pending trial in County Court on the ground of double jeopardy. Respondents assert, however, that the suspension of petitioner's license does not constitute punishment for the purposes of double jeopardy.
The Fifth Amendment provides that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb" (US Const 5th Amend). Protection against double jeopardy consists of the protection from (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after a conviction, and (3) multiple punishments for the same offense ( see, North Carolina v. Pearce, 395 U.S. 711, 717). Petitioner seeks relief based upon an alleged violation of the third protection. Notably, the constitutional prohibitions against double jeopardy and double punishment do not prevent the enactment and enforcement of both civil and criminal sanctions for the same conduct ( see, Helvering v. Mitchell, 303 U.S. 391, 399; Matter of Barnes v. Tofany, 27 N.Y.2d 74, 78). In determining whether a sanction is criminal or civil, it is not the characterization of the sanction which is determinative but rather the nature of the sanction imposed ( see, United States v. Halper, 490 U.S. 435, 448). Here, the statutory provision mandates the suspension of "a driver's license, pending prosecution, of any person charged with [DWI] who, at the time of arrest, is alleged to have had .10 of one percent or more by weight of alcohol in such driver's blood" (Vehicle and Traffic Law § 1193 [e] [7] [a]). The key issue presented is whether the suspension of an operator's license pending prosecution is a punishment that bars a subsequent criminal prosecution based on the same act ( see, Matter of Barnes v. Tofany, supra, at 78).
Although only trial courts in New York have addressed this issue and answered in the negative ( see, People v. Gerstner, 168 Misc.2d 495; People v. MacDougall, 167 Misc.2d 549; People v Condarco, 166 Misc.2d 470, 474; People v. Frank, 166 Misc.2d 277; People v. McLees, 166 Misc.2d 260; cf., People v McRobbie, 168 Misc.2d 151), the appellate courts of numerous other jurisdictions have concluded that statutes which suspend an operator's license pending prosecution are remedial and not punitive in nature because they are employed primarily as a public safety measure ( see, State v. Hanson, 543 N.W.2d 84, 86 [Minn]; Schrefler v. State, 660 N.E.2d 585, 588 [Ind]; State v Kocher, 542 N.W.2d 556, 558 [Iowa]; State v. Arbon, 909 P.2d 1270, 1275 [Utah], cert denied 916 P.2d 909; State v. Phillips, 138 Or. App. 468, 474, 909 P.2d 882, 886, review denied 323 Or. 114, 913 P.2d 1384; State v. Hickam, 235 Conn. 614, 626, 668 A.2d 1321, 1328, cert denied ___ US ___, 116 S Ct 1851; State v. Mertz, 258 Kan. 745, 760, 907 P.2d 847, 857; Kirkpatrick v. State, 219 Ga. App. 307, 308, 464 S.E.2d 882, 883; Leduc v. Commonwealth, 421 Mass. 433, 434, 657 N.E.2d 755, 756, cert denied ___ US ___, 117 S Ct 91; State v. Zimmerman, 539 N.W.2d 49, 55-56 [ND]; State v Strong, 158 Vt. 56, 63, 605 A.2d 510, 514; Butler v. Department of Pub. Safety Corrections, 609 So.2d 790, 795-796 [La]; see also, Krall v. Commonwealth of Pa., 903 F. Supp. 858, 862-863; Thompson v. State of Me. Attorney Gen., 896 F. Supp. 220, 222, affd sub nom. Allen v. Attorney Gen. of State of Me., 80 F.3d 569). In our view, the same reasoning applies in the case at bar.
Furthermore, a review of the legislative history of the statute in question reveals that the purpose of the suspension-pending-prosecution provision is remedial in nature. The Governor's approval memorandum clarifies the State policy sought to be advanced and states, in pertinent part, as follows:
"Prompt suspension not only serves as a general deterrent by mandating swift and certain penalties, but also keeps the potentially dangerous driver off the road during adjudication of the criminal charge. * * *
"Drunk, drugged and otherwise unsafe drivers continue to plague our streets and endanger our welfare. The persistence of these threats makes clear that additional steps must be taken to rid our roads of these dangers" (Governor's Mem, 1994 McKinney's Session Laws of NY, at 2972).
Moreover, the Court of Appeals, when reviewing the analogous suspension provisions authorized by Vehicle and Traffic Law § 510, found that a license to operate a motor vehicle is a privilege and expressly held that the suspension or revocation of that privilege is essentially civil in nature ( see, Matter of Barnes v. Tofany, 27 N.Y.2d 74, 78, supra).
Finally, the fact that this sanction might also have some punitive aspects, such as retribution and deterrence, should be of no import ( see, United States v. Halper, 490 U.S. 435, 448-449, supra). The primary purpose of the suspension-pending-prosecution statute is to protect the public by removing potentially dangerous drivers from the roads before they can cause serious and lasting harm to the public. The prescribed sanction contained within Vehicle and Traffic Law § 1193 (2) (e) (7) is neither so unreasonable nor excessive that it transforms what was clearly intended as a civil remedy into a criminal penalty ( see, Rex Trailer Co. v. United States, 350 U.S. 148, 154; Harvey-Cook v. Steel, 124 A.D.2d 709, 710, appeal dismissed 70 N.Y.2d 746). The statute may be deemed criminal in nature only upon the clearest proof that the scheme is so punitive as to negate the intent to establish a civil penalty ( see, United States v. Ward, 448 U.S. 242, 248-249; Kennedy v Mendoza-Martinez, 372 U.S. 144, 168-169). Accordingly, we conclude that the effect of the suspension-pending-prosecution sanction contained in Vehicle and Traffic Law § 1193 (2) (e) (7) is not so punitive as to violate petitioner's protection from being placed in double jeopardy.
CARDONA, P.J., MERCURE, CASEY and CARPINELLO, JJ., concur.
Adjudged that the petition is dismissed, without costs.