COURT OF APPEALS DECISION DATED AND RELEASED December 12, 1996 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No.
96-2309
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
COUNTY OF DANE,
Plaintiff-Respondent,
v.
GARY M. SAM,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Dane County: DANIEL R. MOESER, Judge. Affirmed.
ROGGENSACK,
J. The defendant, Gary M. Sam, appeals the denial of his
motion to dismiss charges of operating a motor vehicle while under the
influence of an intoxicant (OMVWI) and operating a motor vehicle with a
prohibited alcohol concentration (PAC) and also his conviction. On appeal[1],
Sam contends that the initiation of a criminal OMVWI/PAC prosecution subsequent
to the imposition of an administrative suspension of his driving privileges
violates the double jeopardy of the Fifth Amendment of the United States
Constitution. Sam's argument is
contrary to controlling precedent. Accordingly, the decision of the trial court is affirmed.
BACKGROUND
On March 22, 1996,
Sam was stopped and arrested for OMVWI and PAC in violation of
§§ 346.63(1)(a) and (b), Stats. Because Sam failed the test for a prohibited
alcohol concentration, he was served with a Notice of Intent to Suspend his
operating privileges, and his driver's license was administratively suspended
pursuant to § 343.305, Stats. Subsequently, Sam was charged in a criminal
complaint with violations of §§ 346.63(1)(a) and (b). Sam filed a motion to dismiss on double
jeopardy grounds, which the trial court denied. Sam then entered a plea to the OMVWI count; the court adjudged
him guilty, and imposed an appropriate sentence. Sam appeals, based on the double jeopardy contention.
DISCUSSION
Scope of Review.
Sam
argues that the administrative suspension of his operating privileges is a
"punishment"; and therefore, prosecution of the OMVWI constitutes
placing him twice in jeopardy of punishment for the same offense, in violation
of the Double Jeopardy Clause. His
contention requires analysis of the Fifth Amendment of the United States
Constitution[2], in light of
Wisconsin's Implied Consent Law, § 343.305, Stats. Because the
question involves the application of constitutional principles to undisputed
facts, we will review the trial court's decision de novo. State v. Pheil, 152 Wis.2d
523, 529, 449 N.W.2d 858, 861 (Ct. App. 1989).
Double
Jeopardy.
The Fifth Amendment of
the United States Constitution provides that no person shall "be subject
for the same offense to be twice put in jeopardy of life or limb." The Double Jeopardy Clause includes three
distinct constitutional guarantees:
(1) protection against a second prosecution for the same offense
after an acquittal; (2) protection against a second prosecution for the
same offense after a conviction; and (3) protection against multiple
punishments for the same offense. State
v. Kurzawa, 180 Wis.2d 502, 515, 509 N.W.2d 712, 717, cert. denied,
114 S. Ct. 2712 (1994). Sam argues
that he was subjected to multiple punishments for the same offense, contrary to
the third prong of double jeopardy analysis.
A civil penalty may
constitute "punishment" when the penalty serves the goals of
punishment, such as retribution or deterrence.
United States v. Halper, 490 U.S. 435, 448 (1989). However, this court has already determined
that § 343.305, Stats., is
remedial in nature because it was enacted to keep drunken drivers off the
road. State v. McMaster,
198 Wis.2d 542, 548, 543 N.W.2d 499, 501, petition for review granted,
546 N.W.2d 468 (1996). In other words,
the primary purpose of the implied consent law is to protect innocent drivers
and pedestrians, rather than to punish drunken drivers. Id. McMaster represents the current state of Wisconsin
law, and is binding precedent.
Therefore, Sam's criminal prosecution for operating a motor vehicle
while intoxicated, after the administrative suspension of his operating
privileges, did not constitute multiple punishments, and did not violate the
Double Jeopardy Clause.
By the Court.—Judgment
affirmed.
Not recommended for
publication in the official reports. See
Rule 809.23(1)(b)4, Stats.
[2] Article I, sec. 8 of the Wisconsin Constitution also provides that "no person for the same offense may be put twice in jeopardy of punishment." However, Wisconsin interprets its double jeopardy clause in accordance with the rulings of the United States Supreme Court, State v. Kurzawa, 180 Wis.2d 502, 522, 509 N.W.2d, 712, 721, cert. denied 114 S. Ct. 2712 (1984), and because the defendant does not raise the Wisconsin constitutional issue, this analysis is limited to the federal clause.