PUBLISHED OPINION
Case No.: 95-1159-CR
†Petition for
Review Filed
Complete Title
of Case:
STATE OF WISCONSIN,
Plaintiff‑Respondent,
v.
PETER J. MC MASTER,
Defendant‑Appellant.†
Submitted on Briefs: October 17, 1995
Oral Argument:
COURT COURT OF APPEALS OF WISCONSIN
Opinion Released: November 8, 1995
Opinion Filed: November
8, 1995
Source of APPEAL Appeal from a judgment
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Waukesha
(If
"Special", JUDGE: J. MAC DAVIS
so indicate)
JUDGES: Anderson, P.J., Brown and Nettesheim, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn behalf of the defendant-appellant, the cause was
submitted on the briefs of Daniel P. Fay and Joseph M. Amidon of Daniel
P. Fay, S.C. of Pewaukee.
Respondent
ATTORNEYSOn behalf of the plaintiff-respondent, the cause was
submitted on the brief of James E. Doyle, attorney general, and Maureen
McGlynn Flanagan, assistant attorney general.
COURT OF APPEALS DECISION DATED AND RELEASED NOVEMBER 8, 1995 |
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.
95‑1159‑CR
STATE OF WISCONSIN IN
COURT OF APPEALS
STATE OF WISCONSIN,
Plaintiff‑Respondent,
v.
PETER J. MC MASTER,
Defendant‑Appellant.
APPEAL
from a judgment of the circuit court for Waukesha County: J. MAC DAVIS,
Judge. Affirmed.
Before
Anderson, P.J., Brown and Nettesheim, JJ.
ANDERSON,
P.J. Peter J. McMaster appeals from a judgment of
the trial court where he was convicted of operating a motor vehicle with a
prohibited blood alcohol concentration, contrary to § 346.63(1)(b), Stats.
We conclude that criminal prosecution for operating a motor vehicle with
a prohibited blood alcohol concentration subsequent to the administrative
suspension of driving privileges does not violate the Double Jeopardy Clause of
the Fifth Amendment to the United States Constitution. Accordingly, we affirm.
According
to the criminal complaint, McMaster was charged with operating while under the
influence of intoxicants, contrary to § 346.63(1)(a), Stats., and with a prohibited blood alcohol concentration,
contrary to § 346.63(1)(b). A blood
test was performed indicating a .178 percent of alcohol in McMaster's
blood. McMaster's license was suspended
under § 343.305, Stats., for six
months because his blood test revealed a prohibited alcohol concentration. McMaster had been previously convicted of an
implied consent violation and/or operating a motor vehicle while under the
influence of intoxicants or having a prohibited alcohol concentration.
McMaster
filed a motion to dismiss, arguing that the Double Jeopardy Clause prohibited
the criminal proceedings against him because the administrative suspension of
his operating privileges operated as a punishment in a separate proceeding for
the same offense charged in the criminal actions. The trial court denied McMaster's motion to dismiss, concluding
that a § 343.305, Stats.,
administrative suspension of driving privileges does not constitute a
punishment for double jeopardy purposes.
McMaster pled guilty to one count of operating with a prohibited alcohol
concentration. The charge of operating
while intoxicated was dismissed.
McMaster appeals.
We agree
with McMaster's framing of the issue:
Does the Double Jeopardy Clause of the Fifth Amendment
to the United States Constitution prohibit the criminal prosecution of the
defendant for operating a motor vehicle while under the influence of alcohol,
and of operating a motor vehicle with a blood alcohol concentration greater
tha[n] 0.10%, contrary to § 346.63 and § 346.65, Wis. Stats., subsequent to the
administrative suspension of his driving privileges under § 343.305(8)
Wisconsin Statutes?
McMaster argues that the administrative suspension of a
defendant's driving privileges operates as a punishment in a separate
proceeding for the same offense charged in the criminal actions; therefore, any
attempt to further punish a defendant's activity in the criminal proceeding is
in violation of the defendant's rights against double jeopardy.
Whether an administrative suspension and the
subsequent criminal prosecution for operating with a prohibited alcohol
concentration constitute multiple punishment for the same crime is a question
which requires the application of constitutional principles to the facts. We will independently determine “from the
facts as found by the trial court whether any time-honored constitutional
principles were offended” in the present case.
See State v. Pheil, 152 Wis.2d 523, 529, 449 N.W.2d 858,
861 (Ct. App. 1989) (quoted source omitted).
The
Double Jeopardy Clause of the Fifth Amendment has been interpreted to include three
separate constitutional protections:
(1) protection against a second prosecution for the same offense after
an acquittal, (2) protection against a second prosecution for the same offense
after conviction and (3) protection against multiple punishment 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). Here, we are dealing with the
third protection—multiple punishment for the same offense.
In
United States v. Halper, 490 U.S. 435, 446 (1989), the Court
addressed the issue of “whether and under what circumstances a civil penalty
may constitute punishment for the purpose of the Double Jeopardy Clause.” The Court concluded that in making this
assessment, “the labels ‘criminal’ and ‘civil’ are not of paramount
importance.” Id. at
447. The Court stated that civil
proceedings may advance punitive as well as remedial goals. Id. “Simply put, a civil as well as a criminal sanction constitutes
punishment when the sanction as applied in the individual case serves the goals
of punishment.” Id. at
448. The Court stated that in other
contexts, punishment serves the twin aims of retribution and deterrence. Id.
We
must determine whether administrative license suspension serves remedial or
punitive goals.[1] As the United States Supreme Court stated in
Department of Revenue v. Kurth Ranch, 114 S. Ct. 1937, 1946
(1994), “Halper recognized that ‘[t]his constitutional protection is
intrinsically personal,’ and that only ‘the character of the actual sanctions’
can substantiate a possible double jeopardy violation.”
In its
decision, the trial court expressed a question concerning the language in Austin
v. United States, 113 S. Ct. 2801 (1993), and the language in Kurth
Ranch. In Austin,
the Court stated:
We, however, must determine that [a forfeiture] can only
be explained as serving in part to punish.
We said in Halper that a civil sanction that cannot fairly be said
solely to serve a remedial purpose, but rather can only be explained as also
serving either retributive or deterrent purposes, is punishment, as we have
come to understand the term.
Austin, 113 S. Ct. at 2806 (quoted source omitted). From this language, the question arises whether a sanction that
primarily serves a nonpunitive goal but may have a secondary deterrent purpose
may still be characterized as remedial.
The
language in Kurth leads us to conclude that a sanction is not
necessarily characterized as punitive simply because it may have some deterrent
or retributive purpose. As the Court
stated in Kurth:
We begin by noting that neither a high rate of taxation
nor an obvious deterrent purpose automatically marks this tax a form of
punishment. In this case, although
those factors are not dispositive, they are at least consistent with a punitive
character. ¼ [W]hile a high tax rate and deterrent purpose lend
support to the characterization of the drug tax as punishment, these features,
in and of themselves, do not necessarily render the tax punitive.
Kurth, 114 S. Ct. at 1946-47. The
language in State v. Killebrew, 115 Wis.2d 243, 340 N.W.2d 470
(1983), a Wisconsin case decided prior to the relevant United States Supreme
Court opinions cited here, is also supportive of our conclusion: “Governmental action is punishment under the
double jeopardy clause if its principal purpose is punishment, retribution or
deterrence. When the principal purpose
is nonpunitive, the fact that a punitive motive may also be present does not
make the action punishment.” Id.
at 251, 340 N.W.2d at 475.
We turn to
the language of § 343.305(7), Stats.,
which provides in relevant part:
Chemical test; administrative suspension. (a) If a person
submits to chemical testing administered in accordance with this section and
any test results indicate a prohibited alcohol concentration, the law
enforcement officer shall report the results to the department and take
possession of the person's license and forward it to the department. The person's operating privilege is
administratively suspended for 6 months.
The current provisions of § 343.305(7) and (8), were
created by 1987 Wis. Act 3, § 29 and amended by 1989 Wis. Act 7.
We
conclude that the purpose of § 343.305(7) and (8), Stats., is remedial in nature because it is intended to keep
drunken drivers off of the roads. While
the suspension obviously affects the driver, the intent of the statute is not
to punish. The purpose of the implied
consent law is to protect innocent drivers and pedestrians from drunken drivers
on the highways and also to facilitate the gathering of evidence against those
drivers. See State v. Neitzel,
95 Wis.2d 191, 193, 289 N.W.2d 828, 830 (1980) (stating that “the clear policy
of the statute is to facilitate the identification of drunken drivers and their
removal from the highways”).
We agree
with the State that State v. Nordness, 128 Wis.2d 15, 33-34, 381
N.W.2d 300, 307 (1986), expresses the general legislative purpose:
Drunk driving is indiscriminate in the personal tragedy
of death, injury, and suffering it levies on its victims. It may transform an innocent user of a
highway into a victim at any time—with no advance notice and no opportunity to
be heard. It is a tragedy where the
intoxicated driver and the victim are often unwittingly the same person.
It is also a
scourge on society: drunk driving
exacts a heavy toll in terms of increased health care and insurance costs,
diminished economic resources, and lost worker productivity. It is an affliction which produces no
offsetting human or economic benefits; it engenders no positive human or
economic incentive. It destroys and
demoralizes personal lives and shocks society's conscience. It has no legitimate place in our society.
Although § 343.305(7) and (8), Stats., were not enacted at the time Nordness
and Neitzel were released, it is clear that the purpose of these
provisions is to insure the public's safety.[2]
We
agree with the trial court's reasoning that the statute does not serve the goal
of punishment because no fines or jail time are imposed; the statute allows for
immediate occupational licensing under § 343.305(8)(d), Stats.; and a defendant is given credit for the suspension
against a later suspension or revocation arising out of the incident pursuant
to § 346.63, Stats. These examples illustrate the legislature's
desire to protect public safety without placing an onerous burden upon the
person whose license has been suspended.
The ultimate result is inconvenience to that driver. However, there is no substantial punitive
impact.
McMaster
asserts that simply because an administrative suspension's goal is to keep
inebriated drivers off the road at a time earlier than conviction, this does
not mean that the goal is remedial rather than punitive. To illustrate, McMaster notes that a
defendant who is convicted of a crime is often sent to prison. The goal of prison is to keep the defendant
away from the community for the community's safety. But McMaster argues that the result still emanates from a
punitive action and is therefore a punitive sanction. McMaster analogizes the prison situation with the goal of
administrative suspension and claims that the goal is therefore punitive rather
than remedial.
We
disagree. While it is true that sending
a convicted defendant to prison serves a punitive goal of taking away that
person's liberty, it also serves a remedial goal of protecting society. Simply because criminal actions are
considered punitive to the defendant does not mean that they are punitive
actions from the point of view of the community. To be sure, one of the purposes of our criminal justice system is
to punish offenders. But another
purpose is remedial—it remedies the situation where a violator of our criminal
laws is left out on the streets, thereby endangering the community's
safety. By sending the convicted
defendant to prison, the problem is remedied.
Thus, prison has both punitory and remedial aspects. It is punitory to the defendant and remedial
to the community.
Likewise,
while the act of keeping a violator of our intoxicated driving statutes is no
doubt punitive in that the driver is subject to a loss of driving privilege, it
is largely remedial because it keeps the community safe from the driver. The purpose of the administrative suspension
has been declared by our courts to be driven by this remedial goal. Therefore, it is incorrect to say that the
goal is purely a punitive one or even that it is largely punitive. The simple truth is that the goal is to
remedy the situation where inebriated drivers are still allowed to ply the
roadways to the potential harm of our society.
McMaster
argues that Kurth Ranch limited Halper's analysis distinguishing
between remedial and punitive intent.
McMaster asserts that Kurth Ranch limits Halper
to situations involving civil monetary penalties. He also states: “Kurth
stands for the proposition that consequences that attend only conduct
prohibited by law is punitive.” Thus,
according to his reasoning, administrative suspension of driving privileges
should be considered punitive because the administrative suspension only occurs
upon a showing of criminal conduct.
In
Kurth Ranch, the issue was whether a tax on the possession of
illegal drugs assessed after the State had imposed a criminal penalty for the
same conduct violated the constitutional prohibition against successive
punishments for the same offense. Kurth
Ranch, 114 S. Ct. at 1941. The
court stated: “In Halper we
considered whether and under what circumstances a civil penalty may constitute
punishment for the purpose of double jeopardy analysis. Our answer to that question does not decide
the different question whether Montana's tax should be characterized as
punishment.” Id. at 1944
(quoted source omitted). The Court held
that Halper does not consider whether a tax may be characterized
as punitive. Id.
We conclude that Kurth
Ranch is limited to situations in which taxes are imposed upon illegal
activity. We agree with the State that
the “defendant is plainly wrong in asserting that the license suspension
sanction is punitive primarily because it applies only to criminal conduct.” The language in Kurth Ranch
cannot be read to require such an analysis in a case involving administrative
license suspension. We conclude that
criminal prosecution for operating a motor vehicle with a prohibited blood
alcohol concentration subsequent to the administrative suspension of the driver's
operating privileges does not constitute multiple punishment and therefore does
not violate the Double Jeopardy Clause.
By the
Court.—Judgment affirmed.
[1] In doing so, we
recognize that United States v. Halper, 490 U.S. 435 (1989), aids
this court in its analysis of the issue but does not directly control our
decision here. Unlike in the present case
where the issue is administrative suspension of operating privileges, Halper
involved a monetary civil penalty for each of the defendant's violations of the
civil False Claims Act. Id.
at 438.
[2] McMaster cites
to the Laws of 1981, ch. 20, § 2051(13), as amended by Laws of 1981, ch. 184, §
10, to illustrate the retributive and deterrent purpose of § 343.305, Stats.
The Laws provide:
Operating a motor vehicle under
the influence of intoxicant or controlled substance or while having a blood
alcohol concentration of 0.1% or more.
(a) The legislature finds that:
1. Operation of motor vehicles by persons who
are under the influence of an intoxicant or have a blood alcohol concentration
of 0.1% or more seriously threatens the public safety and welfare.
2. Persons who operate motor vehicles while
under the influence of an intoxicant or having a blood alcohol concentration of
0.1% or more do so in disregard of the
safety and welfare of both themselves and other members of the driving public
and of the laws of this state.
3. Penalties are an important and necessary element in deterring the
operation of motor vehicles by those persons.
....
(b) The legislature intends by passage of this
act:
1. To provide maximum safety for all users of
the highways of this state.
2. To provide penalties sufficient to deter the
operation of motor vehicles by persons who are intoxicated or have a blood
alcohol concentration of 0.1% or more.
3. To deny the privileges of operating motor
vehicles to persons who have operated their motor vehicles while intoxicated or
having a blood alcohol concentration of 0.1% or more.
4. To encourage the vigorous prosecution of
persons who operate motor vehicles while intoxicated or having a blood alcohol
concentration of 0.1% or more.
We conclude that while the statute may have a deterrent aim, the primary
purpose is nonpunitive.