HomeMy WebLinkAbout97-05408
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on August II, 1997, Authorities there subsequently forwarded a report of this
conviction to the Department.
By notice dated September 4, 1997, the Department inti.lrmed Gnazzo:
Section 158' of the Vehicle Code requires the
Department to treal certain out of state convictions as
though they had occUlTed in Pennsylvania. Therefore, as
a result of lhe Departmenl receiving notification from
NEW JERSEY of your conviclion on 08/11/1997 of an
offense which occurred on 06/18/1997, which is
equivalent to a violalion of Section 3731 of the Pa.
Vehicle Code, DRIVING UNDER INFLUENCE, your
driving privilege is being SUSPENDED for a period of I
YEAR(S), as mandated by Section 1532B of the Vehicle
Code.
The effective dale of suspension is 10/09/1997, 12:01
a.m.
Section 1581 of the Vehicle Code, 75 Pa.C.S. ~1581, to which the
Department's notice referred, is the legislative enactment of the interstate Driver's
License Compact (Compact) into which the Commonwealth entered with other
jurisdictions on December 10, 1996. Article III of lhe Compact provides that
"[t]he licensing authority of a party slate shall report each conviction of a person
from another party state occurring wilhin its jurisdiction to the licensing authority
of the home state of the licensee." Article IV of the Compact [Effect of
Conviction] partially sets forth:
(a) The licensing authority in the home state, for the
purposes of suspension, revocation or limitation of the
license to operate a molor vehicle, shall give the same
effect to the conduct reported, pursuant to Article II of
this compact, as it would if such conduct had occurred in
the home state in the case of convictions for:
2
#,
.
(2) driving a motol' vehicle while under the
influence of intoxicating liquor or a narcotic drug or
under the influence of any other drug to a degree which
renders the driver incapable of safely driving a motor
vehicle" ..
(c) If lhe laws of a party stale do not provide for
offenses or violations denominated or described in
precisely the words employed in subdivision (a) of this
article, such party stale shall construe the denominations
and descriptions appearing in subdivision (a) of this
article as being applicable to and identifying those
offenses or violations of a substantially sill1ilar nature
and the laws of such party state shall contain such
provisions as may be necessary to ensure that full force
and effect is given to this article.
(Emphasis added).
On receipt of the notice of his suspension, Gnazzo timely challenged
it in common pleas court. The court dismissed her appeal. On appeal from the
common pleas court's decision, Gnazzo raises four questions for this Court's
disposition. We address them seriatim,
First, Gnazzo argues that the New Jersey DUI statute is not
substantially similar to Pennsylvania's DUI statute and thus violative of Article IV
of the Compact. In Commonwealth v, Whisnant, 390 Pa. Super. 192, 568 A,2d
259 (1990), the Superior Court addressed the similarity of the DUI statutes in
Pennsylvania and New Jersey and stated as follows:
Presently, the elements of a Pennsylvania DUI offense
and a New Jersey DUI offense are substantially identical.
Both define this offense as the operation of a motor
3
...
.:
vehicle while under the influence of alcohol or with.Jl
blood alcohol concentration of 0.10% or more, The
prohibited conduct as well us lhe underlying public
policy, of the Pennsylvania and New Jersey criminal
statutes at issue in this case are lhe same.
W., 390 Pa, Super. at_, 568 A,2d at 260-61 (citations omitted)(emphasis added).
Since the Superior Court delivered its decision in Whisnant the
similarity of the statutes has remained. Seibert v, Department of Transportation,
Bureau of Driver Licensinl:, _ A.2d _ (Pa. Cmwlth. '998) (No. 2954 C.D.
1997, filed May 29, 1998). Accordingly, this Court rejects Gnazzo's argument in
this regard,
Second. Gnazzo claims that her right to equal protection under the law
was violaled since her conducl, if it had occurred in Pennsylvania, would have
rendered her eligible for Accelerated Rehabilitative Disposition (ARD) and
possibly subject to a significantly shorter license suspension. Gnazzo fails to
recognize that her conviction had been entered against her in New Jersey prior to
the imposilioll of her license suspension in Pennsylvania. By being found guilty of
DUI in New Jersey, Gnazzo was, in effect convicted of that same offense in
Pennsylvania. 75 Pa,C.S. *6501. Thus, the trial court, in accordance with 75
Pa,C.S. *3731, had no other option than to impose the mandatory one-year license
suspension. ~ Commonwealth v. Wolf, 534 Pa. 283,632 A.2d 864 (1993).
Additionally, the fact that Gnazzo may have been eligible for ARD
had her offense occurred in Pennsylvania is in no way evidence of a violation of
her right 10 equal protection under the law. S.e.e Sutherland v. Commonwealtb, 407
A,2d 1364 (Pa. CmwIth. 1979), In Sutherland, this Court held that a defendant's
right to equal protection was not violated wher he pled guilty to operating his
4
.
motor vehicle while under thc inllucncc of inlOxlcating liquor in a county which
did not have an ARD program and his Iiccnsc was suspcndcd lor one year, dcspite
thc tact that. in counties wherc thc program was available, an accused's operating
privileges would have been taken trom him for a lesser period of time. !d.
Third, Gnazzo argues that imposilion of a one-year license suspension
by the Departmenl based on his New Jersey conviction, which also carries with it a
license suspension, violates the United Stales, Commonwealth and New Jersey
constitutional guarantees againsl being lwice placed in jeopardy for certain
conduct.2 This argument stands in direct contlicl with the longstanding and wel1-
settled precedent of this Court that double jeopardy protections are inapplicable to
civil license suspension proceedings. Bickert v, Deparlmenl of Transportation.
Bureau of Driver Licensilijl, 668 A.2d 792 (Pa. Cmwlth. 1997); Kral1 v,
Department of Transportation, Bureau of Driver Licensinl:, 682 A.2d 63 (Pa.
Cmwlth. 1996). The Court in these and other cases has held that such suspensions
are not designed to be additional punishments for criminal conduct, but are
separate, remedial measures to protect the public from unsafe drivers.
Accordingly, this argument must be dismissed as without merit.
Gnazzo's remaining claim is thaI the Legislature's suspension of the
effective date of Article IV(b) of the Compact, dr,prives her of her right to equal
protection under the law, is in violation of the contractual principles of the
Compact, and has resulted in an illegal delegation of authority.)
2 U,S, CONST, amend, V,; PA. CONST, art, I, 910,
) Through the enaclment of Section 10 of Act Dec. 10 1996. P,L. 925, No, 149, the
Legislature has suspended the effective date of Article IV(b) of the Compact until such time as
Section 10 is repealed,
5
Article IV(b) the Compact creates a third residual category of out-of-
state convictions that the home state may treat, for the purposes of license
suspension, as if the conduct arising out of those convictions had occurred in the
home stale. 75 Pa,C.S, *'581, Article 'V(b), Paragraph (b) includes "other
convictions" not enumerated in paragraph (a) or those detennined 10 be
substantially similar under paragraph (c) to the offences enumerated in paragraph
(a). Id, By enacting Section 10, the Legislature has suspended the Department's
power to enforce Article IV(b), until some future date when the Legislature decides
to remove the suspension. Section 10 does not in anyway illegally delegate
authority 10 the Department to enforce Article IV(b) selectively, as Gnazzo
wrongly asserts. Because there is no selective enforcemenl of Article IV(b), or,
indeed, any enforcement of Article IV(b) by the Department, it is unavailing to
claim lhat she is being denied her right, by virtue of selective enforcement, to equal
protection under the law.
Gnazzo's claim thaI the suspensIOn of Article IV(b) violates the
contractual principles of the Compact must also fail. The introductory paragraph
of the Compact specifically stales that the "Driver's License Compact is hereby
enacted into law and entered into with all other jurisdictions legally joining therein
in the fonn substantially as follows," 75 Pa.C.S. *1581 (emphasis added). The
language of this paragraph clearly allows for some variation of tenns among party
states in their enactment of the Compact. We find that the suspension of one
6
.
subsection of the Compact, governing the treatment of out-of-state convictions
unrelated to driving offenses, falls within this limited allowance ofvariation.4
For all of the reasons stated above. we will affinn the common pleas
court's decision.
CHARLES
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4 Gnazzo cites McComb v, Wambaullh, 934 F.2d 474 (3'd. Cir, 1991). as authority for the
proposilion that the Compact must be voided on the grounds that a participating stale may not
unilaterally change the terms of a compacl, because unilateral change may affect unifonnily of
interpretation. However, in the instant case we find that uniformity of interpretalion is not in
jeopardy due 10 the extremely limited scope of change resulting from the enactmenl of Section
10. which suspends the effective date of Article IV(b), governing reported convictions for
offens,~s other than vehicular manslaughter, DUI, felonies in which a motor vehicle is used. and
failure 10 SlOP and render aid at a motor vehicle accident. Hence. this argument must be
dismissed as without merit.
7
CI':II1'II"ICA1'E ANI> 'I'IIANSHIT'I'AI. m' ImCOIll>
UNll~:II
PENNSY 1.-"AN-'''-IIl.!!',Jc:..9P ~) I't:l!!o..~.:!',~:, -'~I!.OC~Q.!!!lI':...~21.1.-'.El
1'0 thn Pn>thnnotilry of the Appell.:lle Court to whlc:h the
within matter has been ilppcdled:
COMMONWEALTII COURT m' PA
1'IIE UNDEIlSIGNEIJ, Prothonotary of the Court of Common Plcds
of l"'IMRF.Ar.ANn .. County, the said court belng a court of I'ecord,
do hereby certIfy thdt annexed hereto IS a true dnd correct copy
of the whole and entIre record, including an opInIon of the court
as required by PA R,^.I'. 1925, the ol:'iginal papers Ilnd exhibIts,
if any on file, the transcJ:'ipt of the proceedings, if any, clnd the
docket entries In the following matter:
CASE' 97-5408
CASE . 33 HOG 98
KAREN A GNAZZO
VS
COMMONWEALTH OF PA, DEPART. OF TRANS. BUREAU OF DRIVER LICENSING
The documents comprlslng the record have been numbered
from No. I to No. _.41..._' and attached hereto as Exhibit ^ is iI
1 ist of the documents correspondingly numbered and identified wit h
reasonable definiteness, in<.'luding with respect to each document,
the number of pages comprising the document.
The date on which the recDrd has been transmitted to the
appellate court is APPIr,. tQgA
(Seal of Court)
~~O,
~-_.._.
~:{bJQ.flA1Jy/
An additional copy of this certificate Is enclosed. I'le~se
sign and date copy. thereby acknowledging receipt of this recnrrl.
RECORD RECEIVED:
Date:
--...-------.-.-. .-
(signature' title)
.'
on August II, 1997. AUlhorities there subsequently forwarded a report of this
conviction to lhe Department.
8y notice dated September 4, 1997, the Departmenl informed Gnazzo:
Section 1581 of the Vehicle Code requires lhe
Department to treat certain out of state convictions as
though they had occurred in Pennsylvania. Therefore, as
a result of the Department receiving notification from
NEW JERSEY of your conviction on 08/11/1997 of an
oflense which occurred on 06/18/1997, which is
equivalent to a violalion of Section 3731 of the Pa.
Vehicle Code, DRIVING UNDER INFLUENCE, your
driving privilege is being SUSPENDED for a period of I
YEAR(S), as mandaled by Section 15328 oflhe Vehicle
Code.
The effective date of suspension IS 10/09/1997, 12:01
a.m.
Seclion '581 of the Vehicle Code, 75 Pa.C.S, ~1581, to which the
Department's notice referred, is the legislative enactment of the interstate Driver's
License Compact (Compact) into which the Commonwealth entered with other
jurisdictions on December 10, '996. Article III of the Compact provides thaI
"[tJhe licensing authority of a party slate shall report each conviction of a person
from another party state occurring within ils jurisdiction to the licensing authority
of the home state of the licensee," Article IV of the Compact [Effect of
Conviction) partially sets forth:
(a) The licensing authority in the home stale, for the
purposes of suspension, revocation or limitation of the
license to operate a motor vehicle, shall give the same
effecl to the conduct reported, pursuant to Article II of
this compact. as it would if such conduct had occurred in
the home state in the case of convictions for:
2
(2) driving a motor vehicle while under the
intluence of intoxicating liquor or a narcotic drug or
under the intluence of any other drug to a degree which
renders the driver incapable of sately driving a motor
vehicle" "
(c) If the laws of a party stale do nol provide for
offenses or violations denominated or described in
precisely the words employed in subdivision (a) of this
article, such party stale shall construe the denominations
and descriptions appearing in subdivision (a) of this
article as being applicable to and identifying lhose
offenses or violations of a substantially similar nature
and the laws of such party state shall contain such
provisions as may be necessary to ensure that full force
and effecl is given to this article.
(Emphasis added).
On receipt of the notice of his suspension, Gnazzo timely challenged
it in common pleas court. The court dismissed her appeal. On appeal from the
common pleas court's decision, Gnazzo raises four questions for this Court's
disposition. We address them seriatim,
First, Gnazzo argues thaI lhe New Jersey DUI statute is not
substantially similar to Pennsylvania's DUI statute and thus violative of Article IV
of the Compact. In Commonwealth v. Whisnant, 390 Pa. Super. 192, 568 A.2d
259 (1990), the Superior Court addressed the similarity of the DUI statutes in
Pennsylvania and New Jersey and stated as follows:
Presently, the elements of a Pennsylvania DUI offense
and a New Jersey DUI offense are substantially identical.
Both define this offense as the overation of a motor
3
vehicle while undcr the.Jn.tlw:ncc of alcohol or with a
blood alcohol concentration of O.IOIY" or more. The
prohibited conduct as well as the underlying public
policy, of the Pennsylvania and New Jersey criminal
statutes at issue in this case are lhe same.
id., 390 Pa. Super. al _.,568 A.2d at 260-61 (citations omilted)(emphasis added).
Since lhe Superior Court delivered ils decision in Whisnant the
similarity of the slatutes has remained. Seibert v, Department of Transportalion.
Bureau of Driver Licensinll, __ A.2d _ (Pa. Cmwlth. 1998) (No. 2954 C.D.
1997, filed May 29, 1998). Accordingly, this Court rejecls Gnazzo's argument in
this regard.
Second, Gnazzo c1aims thaI her right to equal protection under the law
was violated since her conduct, if it had occurred in Pennsylvania, would have
rendered her eligible for Accelerated Rehabilitative Disposition (ARD) and
possibly subject 10 a significantly shorter license suspension. Gnazzo fails to
recognize that her conviction had been entered against her in New Jersey prior to
the imposition of her license suspension in Pennsylvania. By being found guilty of
DUI in New Jersey, Gnazzo was, in effecl convicted of thaI same offense in
Pennsylvania. 75 Pa.C.S, *6501. Thus, the trial court, in accordance with 75
Pa.C.S. *3731, had no other option than to impose the mandatory one-year license
suspension. ~ Commonwealth v, Wolf, 534 Pa. 283, 632 A.2d 864 (1993).
Additionally, the fact that Gnazzo may have been eligible for ARD
had her offense occurred in Pennsylvania is in no way evidence of a violation of
her right 10 equal protection under the law. Sel: Sutherland v. Commonwealth, 407
A.2d 1364 (Pa. Cmwlth, 1979), In Sutherland, this Court held that a defendant's
right 10 equal protection was not violated when he pled guilty to operating his
4
motor vehicle while under the influence of intoxicating liquor in a county which
did not have an ARD program and his license was suspended 'or one year, despite
the fact that, in counlies where the program was available, an accused's operating
privileges would have been taken from him for a lesser period of time. ld.
Third, Gnazzo argues thaI imposition of a one-year license suspension
by the Department based on his New Jersey conviction, which also carries with it a
license suspension, violates the United States, Commonwealth and New Jersey
constitutional guarantees against being twice placed in jeopardy for certain
conduct.l This argument stands in direct contlict with the longstanding and well-
settled precedent of this Court that double jeopardy protections are inapplicable to
civil license suspension proceedings. Bickert v. Department of Transportation.
Bureau of Driver Licensina:, 668 A.2d 792 (Pa, Cmwlth. 1997); Krali v.
Department of Transportation, Bureau of Driver Licensini, 682 A.2d 63 (Pa.
Cmwlth. 1996). The Court in these and other cases has held that such suspensions
are not designed to be additional punishments for criminal conduct, but are
separate, remedial measures to protect the public from unsafe drivers.
Accordingly, this argument must be dismissed as without merit.
Gnazzo's remaining claim is that the Legislature's suspension of the
effective date of Article IV(b) of the Compact, deprives her of her right to equal
protection under the law, is in violation of the contractual principles of the
Compact, and has resulted in an illegal delegation of authority.]
lV,S, CONST, amend, V,; PA. CONST, art, I, ~10,
] Through the enaclment of Section 10 of Act Dec, 10 1996, P,L. 925, No. 149, the
Legislature has suspended the effeclive date of Article IV(b) of the Compact unlil such lime as
Section 10 is repealed.
5
Article 'V(b) lhe COll1paCl creates a lhird residual category of oUl-of~
state convictions that the home state may treat, for the purposes of license
suspension, as if the conduct arising out of those convictions had occurred in the
home state, 75 Pa.C.S. * 1581, Article IV(b). Paragraph (b) includes "other
convictions" not enumeraled in paragraph (a) or those determined to be
substantially similar under paragraph (c) to the offences enumerated in paragraph
(a). ld. By enacting Section 10, the Legislature has suspended the Department's
power to enforce Article IV(b), until some future date when the Legislature decides
to remove the suspension. Seclion 10 does not in anyway illegally delegate
authority to the Department 10 enforce Article IV(b) selectively, as Gnazzo
wrongly asserts. Because there is no selective enforcement of Article IV(b), or,
indeed, any enforcement of Article IV(b) by the Department, it is unavailing to
claim that she is being denied her right, by virtue of selective enforcement, to equal
prolection under the law.
Gnazzo's claim that the suspensIOn of Article IV(b) violates the
contractual principles of the Compact must also fail. The introductory paragraph
of the Compact specifically slates that the "Driver's License Compact is hereby
enacted into law and entered into with all olher jurisdictions legally joining therein
in the form substantiall)! as follows." 75 Pa.C.S. ~ I 58\ (emphasis added), The
language of this paragraph clearly allows for some variation of terms among party
states in their enactment of the Compact. We find that the suspension of one
6
subsection of the Compact, governing the treatment of out.or-state convictions
unrelated to driving offenses, falls within this limited allowance of variation:
For all of the reasons stated above, we will aftinn the common pleas
court's decision.
CHARLES
4 Gnazzo ciles McComb v. Wambauih, 934 F.2d 474 (3r<!. Cir. 1991), as authority for the
proposition Ihat the Compact must be voided on thc grounds that a participating slate may not
unilaterally change the terms of a compact, because unilateral change may affect uniformity of
interpretation. However, in the instant case we find thai uniformity of interpretalion is not in
jeopardy due to Ihe extremely Iimilcd scope of change resulting from Ihe enactment of Section
10, which suspends lhe effective date of Article IV(b), governing reported conviclions for
offenses other than vehicular manslaughter, OUI, felonies in which a motor vehic'e is used, and
failure to slop and render aid at a molor vehicle accident Hence, this argument must be
dismissed as wilhoul merit
7
'"
~ -_.._.......~...
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
KAREN GNAZZO,
Appellant
v.
No. 763 C.D. 1998
COMMONWEALTH OF :
PENNSYLVANIA,DEPARTMENTOF:
TRANSPORTATION, BUREAU OF
DRIVER LICENSING
ORDER
AND NOW, this ??nil day of september, 1998, the order of the
Cumberland County Court of Common Picas, dated February 12, 1998, at No. 97-
5408 !~ hereby affirmed.
CERTIFIED FROM THE RECORD
AND ORDER EXIT
SEP 2 ;i, 1998
(?Il
Deputy Prothonotary. Chlet 0 erk
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO, <; 'J. \"'/(1 l' (l1"~,, r",,-.
KAREN A, GNAZZO
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING
LICENSE SUSPENSION APPEAL
LIellNSI SUSPBNSION APP~
AND NOW, comes Pet it ioner, Karen A. Gnazzo, by and through her
attorneys, Mancke, wagner, Hershey & Tully, and makes the following
averments in support of this License Suspension Appeal:
1. petitioner, Karen A. Gnazzo, is a pennsylvania licensed
driver wi th a res idence address of 4 Briarwood Court, Camp Hill,
Cumberland County, pennsylvania 17011.
2. Respondent, pennsylvania Department of Transportation,
Bureau of Driver Licensing, has a mailing address at Riverfront
Office Center, Third Floor, 1101 South Front Street, Harrisburg,
Dauphin County, Pennsylvania 17104-2516.
3. petitioner received a notice of license suspension by way
of letter dated September 4, 1997 from the Department of
Transportation indicating that her pennsylvania driving privileges
are to be suspended on Cct0ber 9, 1997, at 12:01 a,m. for a period
of one (1) year for a violation of New Jersey Law which is
allegedly equivalent to Se,:tion 3731 of the pennsylvania Vehicle
Code, See Exhiblt "A" attached hereto and incorporated herein by
reference.
/
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4. Petitioner believes that said license suspension ~;;d
illegal for reasons which include but are not limited to the
following:
a. The action violates principles of double jeopardy
and collateral estoppel and are in violation of
Article I, Section 10 of the Pennsylvania
Constitution, the New Jersey Constitution, the 5th
and 14th amendments of the Federal Constitution,
and all related and applicable state Rules of
Criminal procedure;
b. The action violates Petitioner's equal protection
rights under Article I, Section 1 of the
pennsylvania constitution and the 5th and 14th
amendments of the Federal constitution because the
Department's action is arbitrary, unreasonable, and
has no substantial relationship to public health,
safety, morals, or general welfare for reasons,
including but not limited to the fact that the
underlying prohibited activity occurred in a
foreign jurisdiction and there is no rational basis
for a conclusion that an alleged out of state DUI
conviction requires such harsh punitive civil
sanctions that would not be imposed had the offense
occurred within the Commonwealth of pennsylvania.
c. petitioner is being penalized a second time for
actions for which she had previously been penalized.
See Notice to the Public as contained in Article 4
of the Interstate Violator Compact as set forth at
75 1i'a. C.S. !i1581 ~ ~. which applies only to
charges of driving motor vehicle while under the
influence of intoxicating liquor which renders the
driver incapable of safely driving a motor vehicle
and the charges against the petitioner did not
constitute operating a motor vehicle under the
influence of intoxicating liquor which rendered her
incapable of safely driving a motor vehicle;
d, Notice to the Public originally contained in
Pennsylvan.ia Bulletin, Vol. 24, No. 45, November 5,
1994, p. 5609 indicated that only charges of drunk
driving are reciprocal and the charges against
petitioner did not constitute drunk driving;
f).
~
~
e, Notification tD the public concerning reciprocity
as well as the driver license compact at 75 Pa.
C,S, 51581 llt. u.g, and the Administrative
Procedures Manual clearly indicate that driving a
motor vehicle under the influence is limited to
those charges which specifically are "driving a
motor vehicle while under the influence of
alcoholic beverages or a narcotic to a degree which
renders the driver incapable of safely driving a
motor vehicle" of which conduct petitioner was not
guilty;
f, The pennsylvania Bulletin, as well as the drlvers
license compact at 75 Pa. C,S. 51581 llt. ~, and
the Administrative Procedures Manual clearly
indicates that the licensing authority in the home
state shall give "such effect to the conduct'. as is
provided by laws of the home state". And, under
the laws of the home state, Petitioner would be ARD
eligible;
g. The drivers license compact at 75 Fa. C.S. !i1581 llt.
~. is not being uniformally enforced in
Pennsylvania insofar as Article 4 (b) of the compact
is presently suspended. Therefore, said
enforcement denies equal protection and due process
under both the pennsyl vania and Federal
constitutions and has resulted in illegal
delegation of authority in violation of law;
h, Action of the Department of Transportation violates
the full faith and credi t of the Federal
Constitution in that the Department of
Transportation has mandated a one year suspension
when New Jersey has no mandated suspension of one
year.
i, The one year suspension is in violation of the
drivers license compact and Administrative
Procedures Manual in that Petitioner's pennsylvania
privileges will not be restored at the expiration
of any suspension which may be imposed by New
Jersey;
j. Pennsylvania lacks jurisdiction over acts occurring
in New Jersey; and
3
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while intoxicuted in New Jersey on June I H. 1997. In vlolullon of Tit": 39 New Jersey Stutute
Section 4.50, Accordingly. It delennlned thutthe New Jersey conviction wus equlvulentto a
vlolutlon of Section 3731 of the Pennsylvuniu Vehiclc ('ode. rclating to driving under the
Inl1uencc, and. therefore, cnforccd the one-yeur driving suspensionmunduted by Section
1 532(b)(3) of the Vehicle Code,
Petitioner is n Pennsylvunin residcnt who. other lhun the oll'cnse stuted ubove. has no
prior rccord. Additionully. in the incident which guvc risc toPetilioner's conviction in New
Jersey. lhere wus no accidenl involved and there wns no act in conjunction with lhe offense in
New Jersey which would have consliluted a violntion of uny of the specific offenses enumerated
under Seclion 1542 oflhe Pennsylvnnia Vehicle Code had the condacl occurred in Pennsylvania.
Petitioner's driving privileges were suspended in New Jersey for six months, she received
a line. nnd was directed 10 comply with a program decmed satisfactory by the Intoxicated Driver
Resource Center in New Jersey,
Petitioner now raises several arguments concerning the impropriety of having her license
suspended for a year, First. she claims a violation of her right to cqual protcction under the
Pennsylvania and Federal Conslitutions, Sccond. she claims that her right against double
jeopardy has been violated under the Pennsylvania and Federal Constitutions, Third, she claims
that Penn DOT incorreclly determined, pursuant to Section 1581 ofthc Pcnnsylvania Vehicle
Code, that her violation in New Jersey was equivalent to Section 3731 of the Vehicle Code.
Finally. she contends Ihat her rights to due process and equal protection. and against double
'il
:2
/3
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97-5408 CIVIL
Jl:opardy huw bl:l:n violllll:d undl:r the Nl:w Jl:rsl:Y Constitution.
Pluinly rl:ud. the abow I:Itl:d part ofScction 1581. rl:qulres the Pl:nnsylvunla Departmcnt
of Transportation to look ut the conduct rcportcd (i.I:. that an individuul was driving under the
inllucnce). and to giw the same cfli:ct (i.c. IIccnsc suspl:nsion) to thl: conduct us if the conduct
hud occurrcd inl'cnnsylvunlu.
The petitioner argues, however, that her conduct which rl:sulted in u driving while
intoxicated conviction in New Jersey would IUlvc wry likely placl:d her in un Acceleratcd
Rehabilitative Disposition program in Pennsylvuniu. And ulthough ARD programs arc hundled
differently in many countil:s in Pennsylvania. generally, the license suspensions which QOT
must effectuate in ARD programs arc six months or less. As such. the petitioner argues that her
right to equal protection is violated, since she has received u one-year suspension whereas the
same conduct in Pennsylvania would have almost surely resulted in u suspcnsion of six months
or less.
We agree that ARD is generally offercd to a lirsttime violator of Pennsylvania's driving
under the inlluence statute, and therefore thcre existed u good possibility that, had the petitioner
been arrested in Pennsylvania for the same conduct, she would have been allowed to enter an
ARD program. We do not think, however, that Penn DOT, pursuant to Section 1581, violated the
petitioner's right to equal protection.
The wording of Section 1581 creates a problem of interpretation, If PennDOT is
supposed to "give the same effect to the conduct reported," then should not the Department
3
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97-5408 CIVIL
consider that such conduct, had It occurred in Pennsylvania. might have resulted In an ARD
disposition'!
In resolving this question. we resort to the well-established laws of statutory
Interpretation.
In attempting to ascertain the meaning of a statute,
the court is required to consider the intent of the
legislature, and is permitted to examine the practical
consequences of a particular interpretation. The
court is to presume that the legislature did not
intend a result that is absurd or unreasonable.
Commonwealth v. LO!)Il, 395 Pa.Super. 495, 577 A.2d 899 (1990).
We arc satislied that it would be virtually impossible for PennDOT to give the same
effect to the conduct involved in an out-or-state conviction, as would probably be given for the
same conduct (without a conviction) in Pennsylvania. It is possible, of course. that the
Department of Transportation could determine an average suspension period for lirst-time DUI
offenders in this Commonwealth, and apply that suspcnsion to out-of-state offendcrs. This
potential resolution, however, is plagued with other problems. Suffice it to say, in any case, that
such an interpretation of the statutc could not have becn intcndcd by the legislature. Rather, we
believe it is apparcnt that the statute requires PcnnDOT to treat out-of-state conduct resulting in a
conviction, just as it would trcat a conviction in Pennsylvania based on the same conduct.
Since PennDOT is treating the petitioncr as it treats evcry person who is convicted of
violating Section 3731 of the Pennsylvania Vehiclc Code, thcre is clearly no violation of the
4
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97-5408 CIVIL
a deterrent or retribution," Ilalper. 490 U,S. at 449. The Supreme Court. howewr, has rceently
disavowed the test applied In Ilalpl:r, and reatlirmed the test applied in cases prc-dating UaIJ2l:.t
such as Kennedy v. Mendoza-Martiaez, 373 U.S. 144 (1963). Hudsun v. United Slates. No. 1)6-
976, 1997lJ.S. I.EXIS 7497 (Dec, 10. 1997)/
The disavowmcnt ofthc test applied in UaIJ2l:.t, however, makcs Iittlc difli:rcnce In our
analysis here. The Commonwealth Court has already detcnnined, even under the lli14ll:r tcst,
that a licensc suspension does not constitutc a criminal sanction, Krull v. Com.. DellI. of
Transportation. Bureau of Driver l.icensinll, 682 A.2d 63 (Pa. Commw. 1(96). It is well
established that "driver revocation proceedings arc rcmedial sanetions and are civil in nature.
designed to protect the public from unsali: drivers," .w. at 66, citing Drollowski v. Com, 94 Pa,
Commw. Cl. 205,209,503 A.2d 104, 107 (1986).
Next, the petitioner contends that violation of New Jcrsey's driving while intoxicated
statute, Title 39 New Jersey Statutes Section 4-50, is not an equivalent uffensc to Pcnnsylvania's
driving under the intluence statute. 75 Pa.C.S. Section 3731. The petitioner points to the fact that
in New Jersey dl'iving under the influence is not c1assilied as a li:lony ur a misdemeanor, but
more as a summary offense in that there is no right to a jury trial and the maximum teml of
imprisonment, even for a repeat offender is six months. In Pennsylvania, on thc other hand,
driving under the influence is a misdemeanor of the second degree, thc aecused has a right to trial
by jury, and imprisonment of not less than one ycar must be ordercd lor third time offenders.
S.e.s: 75 Pa.C.S. Section 3731(e)(I)(iv).
6
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97-5408 CIVIL
Wc arl: satisfied, howcver, that the relevant qucstlon under thc Driver's Liccnse Compuet
is whether the conduct prohibited in the new Jcrsey statute is of the same typc liS the eonduct
prohibltcd by thc Pennsylvania statue.. not whcther the oll"cnses are punished equally, In this
regard, the Superior Court hns alrelldy decided that a conviction under the Ncw Jersey statute
and a conviction under the Pennsylvania statute nrc "equivalent ofli:nses" for purpose of
sentcncing a deli:ndant as a multiple olli:ndcr. Ull11l11onwcalth v. Whisnant, 390 Pa. Super. 192.
568 A.2d 259. The Superior Court noted thllt both stntutes deline the ofli:nse ns opcration of a
motor vehicle while under the inl1ucnce of alcohol or with n blood alcohol concentration of .1 0%
or more, and the court also noted that thc underlying policy of the two statutes is the smne. li1. at
195, 568 A.2d lit 260. Despite slightly difli:rent wording in thc two statutcs, we believe thnt the
statutes address thc same conduct. Thercfore, Penn DOT appropriately equated the conviction in
New Jersey to a violation of Section 3731 of the Pennsylvania Vehielc Code.
The petitioner also argues that PcnnDOT improperly applied the Driver's License
Compact because there is no evidence that the petitioner was convicted of driving undcr the
inlluence to a degree which rcndered her incapable of sali:ly driving a motor vehicle as she
belicves is required under the COl11pact. The pctitioner, however, has misintcrpreted thc
language of the statute which applies to convictions for "driving a motor vehicle while under the
influence of intoxicating liquor," and does not further require that the driver have becn found
incapablc of safely driving a motor vchiclc.
Finally, the petitioner argues that her rights to due process, cqual protection, and against
7
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97-5408 CIVIL
double Jeopardy under thc New JerKey C,mKtltution hnve been violated by this license
suspension. We diKngree. The petitioner nrllues lhat her rights to cqual protection and due
process wcre violated beeause she was not inllJrlned thnt she would lose her license in
Pcnnsylvanin when she entered a guilty plea in New Jcrsey. She e1nims that bccausc of this laek
ofinfonnation her guilty plea was not knowingly, volunturily, and intelligently cntered. ~
State v. Samuels, 253 N.J. Super. 335, 601 A.2d 784 (1991), It is axiomatic, however, that a
licensee may not collaterally llllack an underlying criminal conviction in the context of a civil
license suspension proceeding. ('om. v. Dully, 536 Pa. 436, 639 A.2d 1174 (1994). We need
not address the petitioner's other argumcnts concerning a violation of the New Jersey.
Constitution as we know of no nuthority whereby n rcsident of Pennsylvania may challenge the
actions of a Commonwealth agency based on the constitution of another state.
ORDER
AND NOW, this I 2. off day of February, 1998, for the reasons stated in our
opinion filed of even date herewith, the appeal of Karen A. Gnazzo from the suspension of her
driver's license is DENIED.
BY THE COURT,
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IN THE COURT OF COMMON PLBAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 97-5408 CIVIL TERM
LICENSE SUSPENSION APPEAL
KAREN A. GNAZZO
COMMONWEALTH OF PENNSYLVANIA
DBPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING
PLAINTIPF'S RBQUBST FOR SUPBRSBDBAS PBNDING APPBAL
TO THE HONORABLE KEVIN J. HESS, JUDGE OF THE ABOVE-SAID COURT:
AND NOW, comes petitioner, Karen A. Gnazzo, by and through her
attorneys, Mancke, Wagner, Hershey & Tully, and makes the following
averments in support of this request for a supersedeas pending
appeal.
1. Your Honorable Court issued an Order February 12, 1998
denying Petitioner's appeal.
2. Issues raised in the appeal relative to the statutory
Driver License compact have not yet been fully and finally decided
by either the Commonwealth or the Supreme Courts of Pennsylvania,
3. Issues raised in Petitioner's appeal are currently
pending before the Commonwealth and Supreme Courts of Pennsylvania.
4. petitioner has expressed her desire to appeal the above-
mentioned Order of this Court.
5. The Department, through its representative, George 1\,
Kabusk, Esquire, has been alerted to this request for a supersedeas
and has indicated that the oar" ~.ment has no objection to the
iSBuance of a supersedeas while the case is pending on appeal,
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1997-05408
Cumberland county Prothonotary's Office Page
I~ivil Case Inguiry ~
GN~ZZO KAREN A ,IS) PENNSYLVANIA COMMONWEA~_~ OF
1
Reference No,. I Fi1ed...,.,..1
Case Type..,..1 APPEAL - LICENSE SUSP Time..I"....1
Judgmeflt, I " "I .00 Execut on Date
Judge Ass gnedl HESS KEVIN A Sat/Dis/Gntd..
Jur~ Trial. . , .
Hi~ er Court 1
Hi er Court 2
....................................................... ........................
General Index Attorney Info
APPELLANT HERSHEY DAVID E
10/02/1927
0/00}*bB8
0/00/0000
GNAZZO KAREN A
4 BRIARWOOD COURT
CAMP HILL PA 17011
PENNSYLVANIA COMMONWEALTH OF
DEPARTMENT OF TRANSPORTATION
BUREAU OF DRIVERS LICENSING
HARRISBURG PA 17101
APPELLEE
................................................................................
* Date Entrie15 *
......................*....**...................................................
APPEAL FROM SUSPENSION OF DRIVERS LICENSE
CERTIFICATE OF SERVICE
ORDER OF COURT - DATED 10/6/97 - IN RE LICENSE SUSPENSION APPEAL -
HEfRING 12/19/97 9 AM CR 4 - BY KEVIN A HESS J - NOTICE MAILED
10 7197
02/13/98 OP NION AND ORDER - DATED 2/12198 - IN RE APPEAL FROM DRIVER'S
LICENSE SUSPENSION - DENIED - BY KEVIN A HESS J - COPIES MAILED
2/13/98
02/23/98 PLAINTIFF'S REQUST FOR SUPERSEDEAS PENDING APPEAL
02/26/98 ORDER OF COURT - DATED 2126198 - IN RE PLAINTIFF'S REQUEST FOR
SUPERSEDEAS PENDING APPEAL - GRANTED - BY KEVIN A HESS J - NOTICE
MAILED 2/26/98
................................**.........**...................**..............
* Escrow Information ·
. Fees & Debits Bea Bal Pvmts/Ad1 End Bal ·
.............................................*****.********............*........
18/02/97
1 102/97
10106/97
35.00 35,00 ,00
.50 .50 ,00
5.00 5.00 .00
5.00 5.00 .00
------------------------ ----------.--
45.50 45.50 .00
.....**..***................*****...*...*****.*********.....****...........*....
· End of Case Information *
..........................*...*......*.*...*........**..**..*.......*......*.*..
APPEAL LIC SUSP
TAX ON APPEAL
SETTLEMENT
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~N THE COMMONWEALTH COURT O~ PENNSYLVANIA
q'l !J' I () '3
NOTICE OF DOCKETING APPEAL
Docket No: 0763 C.D. 1998 Filed Date: 03/13/98
Re, GNAZZO v. DEPARTMENT OF TRANSPORTATION
Lower Court No., 97-5408CIV
A Notice of Appeal, a copy of which is enclosed, from an order of
your court has been docketed in the Commonwealth Court of Pennsylvania.
The docket number in the Commonwealth Court is endorsed on this notice.
The Commonwealth Court docket number must be on all correspondence
and documents filed with the Court.
Under Chapter 19 of the Pennsylvania Rules of Appellate Procedure,
the Notice of Appeal has the effect of directing the Court to transmit
the certified record in the matter to the Prothonotary of the
Commonwealth Court.
The complete record, including the opinion of the trial judge,
should be forwarded to the Commonwealth Court within forty (40) days
of the date of filing of the Notice of Appeal. Do not transmit a
partial record.
Pa, R.A.P. 1921 to 1933 provides the standards for preparation,
certification and transmission of the record.
The address to which the Court is to transmit the record is set
forth on page 2 of this notice.
NOTICE TO COUNSEL
A copy of this notice is being sent to all parties or counsel
indicated on the proof of service accompanying the Notice of Appeal.
The appearance of all counsel has been entered on the record in the
Commonwealth Court. Counsel has thirty (30) days from the date of
filing of the Notice of Appeal to file a praecipe to withdraw their
appearance pursuant to Pa. R.A.P. 907(b).
Appellant or Appellant's attorney should review the record of the
trial court, in order to insure that it is complete, prier to
certification to this Court. (Note: A copy of the Zoning Ordinance
must accompany records in Zoning Appeal cases) .
The addresses to which you are to transmit documents to this Court
are set forth on Page 2 of this Notice.
If you have special needs, please contact this court in writing as
soon as possible.
Lower Court Judge: Honorable Kevin A. Hess
Attorney: David E. Hershey
Attorney: George Kabusk
Notices Exit: 03/17/98 Prothonotary
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INDE~ TO WITNESSES
FOR THE PETITIONER
Karen Onazzo
DIRECT CROSS REDIRECT RECROSS
,
4
7
8
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INDEX TO EXHIBITS
POR THE PETITIONER MARKED JU)MITTED
Ex. No. 1 - citation pre marked
FOR THE RESPONDENI
Ex. No. 1 - certification premarked 4
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2
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1 MR, KABUSKI Good morning, Your Honor, This
2 is a license suspension appeal, case number 97-5408, Karen
3 A. Gnazzo v. Commonwealth of Pennsylvania Department of
4 Transportation, Bureau of Driver Licensing,
5 By official notice dated and mailed September
64th, 1997, the Department notified the motorist, Karen A.
7 G-n-a-z-z-o, operator's license number 1-9-9-7-7-7-0-6, that
8 as a result of the Department receiving notification from
9 New Jersey of her conviction on 8/11 of 1997 of an offense
10 which occurred on 6/18/1997, which is equivalent to a
11 violation under Section 3731 of the vehicle Code, Driving
12 Under the Influence, her driving privilege was being
13 suspended for a period of one year as mandated by Se~ticn
14 1532B of the Vehicle Code, and that Section 1581 of the
15 Vehicle Code requires the Department to treat certain out of
16 state convictions as they had occurred in Pennsylvania.
17 The Commonwealth has marked as Exhibit Number
18 1 a packet of documents that are sealed, a certification
19 consisting of 3 subexhibits. Subexhibit Number 1 is
20 official notice of suspension dated and mailed 9/4/97,
21 effective 10/9/97. Subexhibit 2, record of conviction
22 detail out of state driver violations report received by the
23 Department electronically from the state of New Jersey,
24 operating under the influence of liquor or drugs, date of
25 violation 6/18/97, date of conviction 8/11/97, and 3,
3
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1
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3
4
5
6
7
8
9
10
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12
13
14
15
16
17
18
19
20
21
22
23
24
25
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MR. HERSHEYr May I approach the witness,
Your Honor?
THE COURTr Sure.
BY MR. HERSHEY:
Q Miss Gnazzo, I'm showing you what's been
marked as Defendant's Exhibit 1. Can you identify that for
the record?
A Yes. This is the fines that I received the
night I was arrested.
Q Those were the copies of the citations that
you received from the Avalon Borough police?
A Yes.
Q The night of your DWI arrest?
A Yes,
MR. HERSHEY: Okay, I have no further
questions, Your Honor,
THE COURT, Anything else?
CROSS EXAMINATION
BY MR, KABUSK,
Q Very briefly, Miss Gnazzo, do you hold a
Pennsylvania driver's license?
A Yea,
Q And did you receive notice that your
operating privilege would be suspended for one year as a
result of the driving under the influence in New Jersey?
7
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11
12
Q
A
Q
A
Q
A
Q
influence?
A
13 questions,
14
15 one follow-up,
16
-
Yes,
MR, KABUSK: Thank you, No further
MR. HERSHEY: If I may, Your Honor, I have
THE COURT: Sure.
17 REDIRECT EXAMINATION
18 BY MR. HERSHEY:
19
Q
Miss Gnazzo, just as a point of
20 clarification, Mr. Kabusk asked you whether you were
21 convicted of operating under the influence. Was that the
22 name of the charge in New Jersey?
23
24
A
Q
25 before you?
I don't remember.
Is the charge reflected on the citation
8
'I!
Plowman v. Departme/ll of Transportaticm, Bureau of Driver Licensing, 535 Pa, 314,635 A.2d
124 (1993).
2. Gnaz:zo's sccond challcngc to the imposition of the operating privilege suspension
is that New Jerseys's driving while intoxicated law is not substantially similar to Pennsylvania's
driving under the inlluence of alcohol or controlled substance law, 75 Pa. ('.S. ~3 731 (a)( I ).1
New Jersey's driving while intoxicated statute is of a substantially similar nature to
Pennsylvania's driving under the influence law for purposes of the Driver License Compact, 75
Pa.C.S.~ 1581 etseq.
Gnazzo claims that driving under the inlluence in Pennsylvania and driving while
intoxicated in New Jersey are not equivalent or substantially similar offenses. However, the
issue is whether the conduct prohibited by New Jersey is of the same type of conduct which
Pennsylvania's driving under the inlluence law is designed to prohibit. This is the same analysis
which was used by the Superior Court in Commonwealth v, Whisnant, 390 Pa, Super. 192, 568
A.2d 259 (1990).
In Whisnal/t, the Superior Court held that a driving under the influence conviction in New
Jersey could be used as a prior offense for sentencing purposes. In reaching this conclusion, the
Superior Court compared the elements of the two state driving under the influence laws and
determined that the statutes were designed to prohibit the same type of conduct. Additionally, it
noted that the underlying public policies for both driving under the influence statutes were the
same. The Court also noted that to treat the out of state conviction differently than a
Pennsylvania state conviction would violate the policy the sentencing law had been designed to
remedy.
In accordance with the analysis of the Superior Court in Whisnant, the Department
submits that the New Jersey and Pennsylvania driving under the influence statutes prohibit the
same type of conduct. Accordingly, Gna:zzo's claim is without merit.
'it should be noted this issue is a question of law not a question offact. Neither party has
the burden of proving the comparability of the statutes.
3
3. The ncxt argumcnt is that Gnazzo's equal protcction rights were violated because
aftcr Gnazzo was eaught driving under fhe inl1ucnce in New Jcrsey she did not have the
opportunity to participate in un Accelcrated Rehabilitative Disposition (ARD) program.
Pctitioner's challengc is mcrely un attack on thc propriety of thc conviction. Whethcr the
petitioncr's equal protcction rights were violated in her criminal proceeding bccause of thc
unavailability of an ARD program is not properly before the court. This court may not inquire
Into whether there was a defect in the underlying proceeding. In a Iicensc suspension appcal, a
motorist muy not challenge the propriety of thc underlying conviction. Thc order which may be
challcnged in this procecding is the onc year suspension and not the conviction.
Both the Pcnnsylvania Supreme Court and thc Commonwealth Court have held that an
opcrating privilege suspension imposed lor a conviction of a driving undcr the inl1ucnce offense
does not violate Equal Protection mcrely because the motorist did not have an opportunity to
participate in the ARD program. Sutherland v. Commonwealth, 45 Pa, Cmwlth. 490,407 A,2d
1364 (1979); Freed v. Commonwealth, 48 Po. Cmwlth. 178,409 A.2d 1185 (1979), aJ]'d per
curiam, 493 Pa, 230, 425 A.2d 747 (1981). In Sutherland, a motorist from Delaware County
took an appeal of a one year suspcnsion imposed as a rcsult as a driving under thc inl1uence
conviction in Cumberland County. At the time, Cumberland County did not have an ARD
program. However, Delaware County had established an ARD program. Suthcrland appealed
his one year operation privilege suspension claiming that his equal protcction rights were
violated because he was not afforded an opportunity to enter into an ARD Program. Sutherland
claimed that if there had becn an ARD program, he could have entered into the program and had
his suspension time greatly reduced. The Commonwealth Court, en banc, held that the one year
suspension did not violate equal protection. "The availability of ARD to an offender is entirely
unrelated to the mandatory provisions of the Code governing the revocation of operating
privileges." Sutherland, 45 Pa. Commw. at ~ 407 A.2d at 1366. See also Freed v.
Commonwealth, 48 Pa. Cmwlth. 178, 409 A.2d 1185 (1979), a.U'd per curiam, 493 Pa, '230, 425
A.2d 747 (1981).
Additionally, it should be noted thaI Pcnnsylvania is not treating Gnazzo in a different
fashion then other similarly situated motorists. The petitioner was convicted of a driving under
4
the inllucnce ofti:nse. The pClitioncr is being lrcllted exactly the samc as ifher conviction
occurrcd in Pcnnsylvllnia despite the filclthatthl: conviction occurrcd in Ncw Jersey. By
suspending the pelitioncr's operating privilegc tilr one year, the Departmenlls treating the
petitioncr cXllctly as it would trcat one who was convicted of driving undcr I,hc inllucnee in
Pennsylvunia.
Like thc motorist in SlIIhcrlall<l, pctitioncr argues thatthc disparate Ireatmmllthat shc
received violates her equal protection rights. This argument Is premised upon the fuctlhat shc is
not being trcatcd the same as a motorist who was admitted into an ARD program. However,
petitioner was convieled and is being trcated the same as others who arc convicted of driving
under thc inlluence offenscs. Accordingly, she is being trcated lhe same as others similarly
situated and her equal protection argumcnt must fail.
4. Petitioner next argues thatthc imposition of the suspcnsion is a second
punishment in violation of the sllltc and fcderal double jeopardy provisions relying upon United
States v. lIalper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed, 2d 487 (1989). However, in Krall v.
Department o/Transportatiol/, Bureau o/Drivcr Licensing, 682 A. 2d 63 (Pa. Cmwlth, 1996)(en
banc), the Commonwealth Court rejccted a double jeopardy argument raised by the motorist
based upon lIalper. The Court held that operating privilege suspensions imposed pursuant to the
Vehicle Code were remedial sanctions which were civil in nature and, therefore, could not be the
subject of a double jeopardy challenge, [d, The Commonwealth Court has consistently held that
the imposition of operating privilege suspensions does not violate the double jeopardy
prohibitions. Sce Ponce v, Department o/Tral/sportation, Bureau o/Driver Licensing. 685
A.2d 607 (Pa. Cmwlth. 1996), appeal denied. _ Pa._, 694 A.2d 625 (1997); Martin v.
Department o/TransportatiOll, Bureau a/Driver Licensing. 672 A.2d 397 (Pa, Cmwlth. 1996);
Fleetwood v. Department o/Transportation, Bureau o/Driver Licensing, 682 A.2d 1343 (Pa.
Cmwlth, 1996); Bickert v, Departmel/t o/Transportation, Bureau a/Driver Licensing, 688 A.2d
792 (Pa. Cmwllh. 1997); Drogowski v, Commol/wealth, 94 Pa, Cmwlth. 205,503 A,2d 104
(1986), appeal del/ied, 516 Pa. 619, 531 A,2d 1120 (1987); and lal/otto v. Department 0/
Transportation. 83 Pa, Cmwlth. 69, 475 A.2d 1375 (1984). See also, Krall v. Commonwealth,
5
903 F. Supp. 858 (E,D, Pa. 1995)(reJectinl! a motorists claim that an operating privilege
suspension violates double jeopardy). Additionally, the suspension in question flows directly
from the conviction. As such, the suspension is not a second prllceeding for double Jeupardy
purposes. See Mariill v. Departme/ll of TrOluportatioll, BureOlI of Drivel' Licen.ving, 672 A,2d
397 (Pa. Cmwlth. 1996). Moreover, it has been traditionally held that the revocation ofa license
or privilege voluntarily granted by a govel1lment which resulted from a criminal conviction does
not constitute "punishment" within the scope of the Double Jeopardy Clause of the Fifth
Amendment. See He/verillg v. Mitchell, 303 U.S. 391,399 (1938) (one type of sanction that "is
characteristically free of a punitive criminal element is the revocation of a privilege voluntarily
granted").
Gnazzo's double jeopardy claim is premised upon UIIUed States v. lIa/per. 490 U.S. 435
(1989) and the Honorable Judge Jenkins') opinion in Department ofTransportat/0I1 v. Canuso,
No. 9512-2629. However, the U. S. Supreme Court expressly rejected the double Jeopardy
analysis set forth in the Ha/per case in Hudson v. United States, _ U.S. _, available in
LEXIS at 1997 U.S. lexis 7497, affirming 92 FJd 1026. In lIudson. the Court concurred with
its previous holding concerning the double jeopardy clause, set forth in cases such as Kurth
Ranch. It reemphasized its position that all civil penalties carry some deterrent effect, however,
this does not make them "punitive" and thus subject to the restraints of the double Jeopardy
clause. If a sanction must be solely remedial to surpass double jeopardy scrutiny, no civil
penalties would be beyond the reach of the double Jeopardy clause. To emphasis its distaste for
the lIa/per decision, the Hudson court explicitly criticized lIa/per 's test which deviated from the
Court's longstanding double jeopardy language set forth in Kurth RallCh and Ullited States v.
Usery, 518 U.S. ~ n.2 (1996) (slip op., at 16-17, n.2).J Therefore, Gnazzo's reliance on
lIa/per is misplaced.
Even if a suspension was determined to be punishment, the Department's suspension
'Judge Jenkins is a Philadelphia Court of Common Pleas judge.
'The lIudson Court stated that the deviation from the Court's longstanding double
jeopardy principles in Ha/per was "ill considered." Ha/per at *16.
6
would not constitute double jeopardy because of the doctrine of "dual sovereignty." The double
jeopardy prohibition applies only to single stllte sovcreigns, Bartkll.\' v. lIIil/oi.f, 359 U,S. 121, 79
S.C!. 676, 3 L.Ed. 2d 684 (1959). It docs not prohibit two stutes from prosecuting the slime
conduct because each stale's prosccuwrial power is dcrived from its own inhercnt sovereignty.
Heath v, Alahama, 474 U.S. 82, 106 S ('I. 433, 88 L.Ed. 2d 387 (1985), "Where the act gives
rise to an otlcnse ugainsttwo sovereigns, each may punish." Levy Motor Vehicle Operator's
Cas/!, 194 Pa. Supl:r. 390, 393, 169 A.2d 596, 598 (1961) (upholding a Pcnnsylvania driver
license suspension based upon a violation in New Jersey, under former 75 P.S, 619(3) of the
Vehicle Code of 1959).
5. Petitioner claims that her due proccss, equal protection, and double jeopardy
rights under the New Jersey Stllte Constitution have been violated. New Jersey und Pennsylvania
are independent statc sovereigns who enacted their separate and distinct state constitutions, One
sovereign state eannot bind another sovereign state nor can one sovereign pass a law dictating the
actions of the another state sovereign. The constitution and statutes of the state New Jersey are
not superior to the constitution and statutes of this Commonwealth. New Jersey has no authority
to pass laws prohibiting this Commonwealth from taking an action expressly mandated by our
General Assembly.
Petitioner claims that her New Jersey State due process and equal protection rights have
been violated because she was not informed of the Pennsylvania operating privilege suspension
when she was convicted. However, this claim is merely an improper attack on the propriety of
the underlying conviction. Commonwealth v. Dllffey, 536 Pa, 436, 639 A.2d 1174 (1994), cert.
denied, 513 U.S. 884 (1994). A motorist may not raise improprieties in a criminal proceeding as
a defense of an operating privilege suspension. Id. The issue is whether the motorist was
convicted and not whether the motorist should have been convicted. Id.
Petitioner claims that her New Jersey State double jeopardy rights has been violated by
the imposition of this suspension, We note that New Jersey has been a member of the Driver
Licensing Compact for longer than Pennsylvania and that New Jersey has not held that an
operating privilege suspension imposed pursuant to the Compact violates the double jeopardy
7
v.
IN THB COURT OF COMMON PLBAS
CUMBBRLANDCOUNTY, PBNNSYLVANIA
NO. 97-5408 CIVIL TERM
KARIN A. GNAZZO
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF TRANSPORTATION,
BUREAU OF DRIVER LICENSING
LICENSE SUSPENSION APPIAL
P~ITlo..a's Bal..
TO THE HONORABLE KEVIN A. HESS, JUDGE OF THE ABOVE-SAID COURT:
I. .ACTS
petitioner, Karen A. Gnazzo, received a notification from the
Department of Transportation with a mail date of September 4, 1997
advising her, in pertinent part, that "as a result of the
Department receiving notification f.rom New Jersey of your
conviction on 08/11/97 of an offense which occurred on 06/18/97
which is equivalent to a violation of 53731 of the pennsylvania
Vehicle Code, drivi.ng under influence, your driving prj,vilege is
being suspended f;or a period of one year (s) as mandated by 51532 (b)
of the Vehicle Code."
See the Department's notice marked as
Exhibit "A" attached to Petitioner's appeal and incorporated herein
by reference.
petitioner is a pennsylvania resident who, other than the
offense listed above, has no prior record. Additionally, in the
incident which gave rise to Petitioner's conviction in the State of
New Jersey, there was no accident involved and there was no act in
conjunction with the offense in New Jersey which would have
2. X.w Jersey'. 4riving wbil. intoxieate4 statute i.
not an equivalent off.n.. to Penn.ylvania'. drunk
4riving law pur.uant to th. Driver Lieense compact.
~ New Jer.ey Statue. 3914-50, .e. also 75 Pa.C.S.
13731, see al.o 75 Pa.C.S. 11581 et sea. compar.
Romano v. C,,-onw.alth. DeDart.\!!!.lU, of
TransDortation, 75 Lane. 218 (1996).
New Jersey's driving while intoxicated statute is attached as
8xhibit "A" and incorporated herein by reference. That statute
reads, in pertinent part:
A person who operates a motor vehicle while under the
influence of intoxicated liquor, narcotic,
hallucinogenic, or habit producing drug, or operates a
motor vetlicle with a blood alcohol concentration of O.lOt
or more by weigllt of alcohol in the defendant's blood or
permits another person who is under the influence of
intoxicating liquor, narcotic, hallucinogenic, or habit
producing drug to operate a motor vehicle owned by him or
in his custody or control or permits another to operate
a motor vehicle with a blood alcohol concentration of
O.lOt or more by weight of alcohol in the defendant's
blood shall be subject:
(i) for the first offense, to a fine of not less
than $250 nor more than $400 and a period of
detainment of not less than 12 hours nor more than
48 hours spent during two consecutive days or not
less than six hours each day and served as
prescribed by the program requirements of the
Intoxicated Driver Resource Center established
under subsection (f) of this section and, in the
discretion of the court, a term of imprisonment of
not more than 30 days and shall forthwith forfeir.
his right to operate a motor vehicle over the
highways of this state for a period of not less
than six months nor more than one year. ~ ~
Jersev Statutes Annotated, 39:4-50(a) (1),
The courts of New Jersey have determined that a violation of
the above-mentioned section are not constitutionally serious as a
4
first or second offense, thus, def~ndants do not have the right to
a jury trial for those offenses, ~ State v. Graff, 121 NJ 131,
577 A,2d 1270 (1990) I see also State v. Samarel, 231 NJ.Super. 134,
555 A,2d 40 (1989).
Under the Drivers License Compact at 75
Pa,C.S. 51581 (a) (2), our Legislature has indicated:
The licensing authority in the home state, tor purposes
of a suspension, revocation, or limitation ot the license
to operate a motor vehicle, shall give the same effect to
the conduct reported, pursuant to Article 3 of this
compact, as it would if such conduct had occurred in the
home state in the case of convictions for: ...
(2) driving a motor vehicle while under the influence
of intoxicating liquor or a narcotic drug or under
the influence of any other drug to a degree which
renders the driver incapable of safely driving a
motor vehicle.
There is no evidence that the petitioner was convicted of
driving under the influence to a degree which rendered her
incapable of safely driving a motor vehicle as stated in the
drivers compact as indicated abov'e or as otherwise designated under
53731 (a) (1) of our Vehicle Code.
~ 75 Pa.C.S. 53731(a) (1),
Moreover, unlike pennsylvania'S DUI law, the State of New Jersey
has designated a first offense for a violation of the driving while
intoxicated statute as a non-serious offense for which petitioner
has no right to a jury trial.
Our Commonwealth Court. in Olmstead v. Commonwealth. DeDartment
of TransDortation analyzed New York's driving while impaired
statute and found that it was not equivalent to pennsylvania'S DUI
statute and reversed a suspension imposed by the Department. ~
5
plmstead v, Commonwealth v, Deoartment of TranslJ)ortation,
Pa.crnwlth, ___' 677 A,2d 1285 (1991), alloc, granted at 687 A.2d
380.
For the above-mentioned reasons, the New Jersey violation does
not constitute an equivalent offense for purposes of the drivers
license compact.
3. Petitioner'S equal protection rights have been
violated uneSer the pennsylvania and .ederal
Constitutions when the same conduct, had it
occurred in pennsylvania, would have reneSered
Petitioner AID eligible and subject to as little as
a one month suspeDllion instead of the one year
suspension currently proposed by the DepartlUnt.
a.1 Commonwealth. DeDartlUnt of TransDortation ~.
Kicholas A. Canuso, Ko. 9512-2629 Phila. Court of
Common Pleas, JUdge Jenkins which is attached as
lIxhibit "B" aneS incorporated herein by reference
for the Court's convenience. See also, Borough
Council of BorOUGh of AaDinwal1, 163 Pa.Clllwlth.
595, 641 A.2d 1270 (1994).
The facts as established by petitioner in the above-captioned
matter will indicate that there was no accident involved in her
case, she has no prior criminal record but for the New Jersey
incident, and there was nothing which occurred in conjunction with
his arrest in New Jersey which would have constituted a serious
offense under ~1542 of pennsylvania's Motor Vehicle Code, ~ 75
Pa.C.S.51542.
Accordingly, had the conduct occurred in
Pennsylvania pursuant to 75 Pa. C. S. 53731 (d), Petitioner would have
been ARC eligible pursuant our ARD statute. petitioner would have
been eligible for as little as a 30 day suspension of her operating
6
privileges, ~ 75 Pa,C,S, S3731(b) (ii), not one year as proposed
by the Department. As JUdge Jenkins indicated in Commonwealth v,
~anUBO~
In the instant matter as a result of Petitioner's New
Jersey DUl convictions, Petitioner'S driving privileges
were suspended in New Jersey for six months, A
subsequent one year DOT suspension tacked on to the six
month suspension would have the overall effect of an 18
month suspension of Petitioner'S driving privileges. Had
the underlying DUl offense taken place ill this
Commonwealth, the first time offenders would be eligible
tor the Accelerated Rehabilitative Disposi tion (ARO),
where only a one month suspension could be imposed. 1~e
dispari ty between a one month suspension and 18 month
suspension is absurd, Even it ARD was not applicable,
had peti tioners been convicted of driving while
intoxicated in Pennsylvania, their driving privileges
would have been suspended for one year at most not 18
months, still, a nonsensical arbitrary result. ~,
Commonwealth v. Canuso attached as Exhibit "B" at p. 11.
Our courts have previously stated that the constitutional
right to equal protection is violated when a determination is based
solely on place or location. ~ at. Marqaret Memorial HosDital v.
Borouah Council of Borouah of ASDinwall, 163 Pa.Cmwlth. 595, 641
A.2d 1270 (1994).
For the above mentioned reasons, the proposed suspension of
Petitioner'S operating privilegelB violates her equal protection
rights under the state and federal constitutions.
4. Petitioner'S double jeopardy rights have beeD
violated Imder the Pennsylvania and .ecSeral
Constitutions. b.I tJDited States v. HalDer, 490 U'
435, 109 S.Ct. 1892, 104 L.IId.2d 487 (19U), au
alI2 Cnmm~nwealth. DeDar~-.nt of Tran8DortatioD v.
CeDU80, No. 9512-2629 Judge Jenkins.
7
Petitioner, in addition to the driving suspension in New
Jersey imposed for a period of six months was also subjected to
fines, costs, and other penalties associated with his conviction,
Petitioner's driving privileges in the State of New Jersey were
suspended for a period of six months effective August 11, 1997,
Our Supreme Court in United States v, HalDer has held that
disparities and sanctions which are sufficiently disproportionate
that the second sanction constitutes a second punishment is a
violation of double jeopardy provisions under our federal
constitution, Specifically, the HalDer court stated:
... The determination of whether a given civil sanction
constitutes punishment in the relevant sense requires a
particular1:/:ed assessment of the penal ty imposed and the
purposes that the penalty may fairly be said to serve.
Simply put, a civil as well as a criminal sanction
constitutes punishment when the sanction is applied and
the individual case serves the goals of punishment. ~
United States v. Ha.IDer, 490 US at 447-448,
The above mentioned rationale was applied by Judge Jenkins in
the case of Commonwealth. Deoartment of Transoortation v. Canuso at
pp. 8-12. Specifically, Judge Jenkins stated that:
Accordingly, in the instant matter, we maintain there is
no rational basis for a conclusion that an out-of-state
DUX conviction requires such harsh punitive civil
sanctions that would not be imposed had the offense
occurred in this Commonwealth. We are very mindful of
the remedial aspect of the license suspension based upon
a DUI conviction; however, the Federal Constitutional
dictates of HalDer, supra require the second subsequent
purposed civil sanction (the DOT suspension) be solely
remedial in nature and have no punitive aspect
whatsoever, The DOT suspensions constitute a second
8
punishment, a second proceeding, and are cleal'ly based on
the same conduct which gave rise to the initial
punishment, which was imposed as a resul t of the New
Jersey Dur convictlons. '" Thls second punishment is
prohibited by the double jeopardy clause of both the
federal and state constitutions. ~ Commonwealth v.
Canuso (Exhibit "B") at p. 12.
Iaaue 5
Rave petitioner' a righta purauaDt to the Ne. Jeraey
Coaatitution inclu.sing due proce.a, equal protection, ancl
doullle jeopardy be.n violated by the Department' a action
in thb case?
blI
1. The Ne. Jeraey Conatitution, purauant to Article I,
Section 4 provide. for double jeopardy protection.
The New Jersey Constitution at Article I, Section 4 reads, in
pertinent part:
NO person shall, after acquittal, be tried for the same
offense... See qenerallv. United States v. Newbv, CA 3
(New Jersey) (1993), 11 F.3d 1143, cert. denied 114 S.Ct.
1841, 511 U.S. 1087, 128 L,Bd.2d 468, cert. denied 115
S.Ct. 111, 513 U,S. 834, 130 L.Bd.2d 58.
As indicated during the hearing in the above captioned matter,
petitioner was subject to a si.x month suspension of her New Jersey
driving privileges in addition to participating in safe driving
classes and paying a fine. subsequent to Petitioner's New Jersey
sanctions associated with the criminal case in New Jersey,
Petitioner was then notified by the Department of Transportation
that her driving privileges in pennsylvania would be suspended for
one year based on an incident which occurred in New Jersey July 29,
9
1997, petitioner argues that the punitive drivers license sanction
imposed in penn'sylvania constitutes a second punishment and is
therefore a violation of the above mentioned section of the New
Jersey Constitution.
2. The Department'. action violate. Petitioner'. due
process aDd equal protection rights under the Xe.
Jersey Con.titution.
Article I, Section 1 of the New Jersey Constitution r.eads as
follows I
Natural and undlienable rights.
1. All persons are by nature free and independent, and
have certain natural and unalienable rights; among
which are those of enjoying and defending life and
liberty of acquiring possession and protection
property and of pursuing and obtaining safety and
happiness. fJ.!:!:. Article I, Section 1 of the New
Jersey constitution.
Pursuant to New Jersey statutes 39:4-9.1 pertaining to
exchange of information between states concerning certain
violations, the New Jersey Legislature has indicated that they will
notify members of the drivers license compact regarding certain
violations that occur in New Jersey. See qenerallv, Division of
Motor Vehicles v. Kleinert, 198 N.J. Super. 363, 486 A,2d 1324
(A.D, 1985),
In the case at bar, the New Jersey Division of Motor Vehicles
notified PennDot of Petitioner's conviction of 39:4-50(a) (1) of the
New Jersey Statutes Annotated pertaining to operating a motor
10
7$ l'u.C.SA ~ ISKI, Iln"cr'sl.lccnsc Cllllll'UCI
"1lS061 7!l PI,C.S,A. A I!lBI
PURDON'S PENNSYLVANIA
STATUTES AND CONSOLIDATED
STATUTES ANNOTATED
PURDON'S PENNSYLVANIA
CONSOLIDATED STATUTES
ANNOTAn:D
TI'fLE 7!l. VEIIICLES
PART II. TITLE, REGISTRATION
AND LICENSING
CHAPTER l!l. LICENSING OF
DRIVERS
SUBCHAPTER D. DRIVER'S
LICENSE COMPACT
Cun'l!lI/ 'hrollgh Ih" eIId 011996 I/ell. SeJJ. r/lld
,h,.,ugh 1996 Sp. Sess. No.2
* 1!l81. Driver's License Compact
The Driver's License Compacl is hereby enacled
into low and entered inlo with all olber
jurisdiclions legally joining lberein in lbe fonn
substantially as follows:
Article I
Findlnas and Declaration of Policy
(a) The party slates fmd lbal:
(I) The safely of lbeir strects ilIId highways is
materially affected by lbe degrec of compliance
wilb State and local ordinances relaling to Ihe
operation of mOlor vehicles.
(2) Violation of such 0 law or ordinance is
evidencc lbat lbe violalOr engages in cOnducI
which is likely 10 endanger lbe safety of persons
and property.
(3) The conlinuancc in force of 0 license to
drive is predicated upon compliance wilb laws
and ordinllDces relating to lbe operalion of motor
vehicles. in whichever jurisdiction lbe vehicle is
operated.
(b) It is lbe policy of each of Ihe porty stoles 10:
P8.e1
( I) I'romote compliwlce wilh lbe lows,
ordinances ilIId administrative rules and
rellulations relating 10 lbe operalion of motor
vehicles by their operators in each of lbe
Jurisdictions where such operators drive molOr
vehicles.
(2) Make lbe reciprocal recognilion of
licenses 10 drive WId eligibility lberefor more Just
and equilable by considering lbe overall
compliance wilb motor "chicle lows, ordinanccs
and administrative rules and regulations os 0
condilion precedenl 10 !he conlinuanec or
issuance of any license b)' reason of which lbe
liccnsce is aulboril.cd or pennilled 10 operate 0
mol.or vehicle in any of lbe porty states.
Article II
Delinitlons
As used in lbis compacl:
(0) "State" means 0 stole, lerritory or possession
of lbe United Stales, lbe DistricI of Colwnbia or
lbe Commonweallb of Puerto Rico.
"11S062 (b) "Home stole" means lbe state which
has issued and h3S the power to suspcnd or revoke
lbJ use of lbe license or permil to operate a motor
vchiele.
(c) "Conviction" means a convIction of any
offcnse related 10 lbe use or operation of a molOr
vehicle which is prohlbiled by state low, municipal
ordinance or administralive rule or regulalion or 0
forfeiture of bail, bond or other security deposited
10 secure appearance by 0 person charged wilb
having commilled any such olTense and whieh
conviction or forfciture is required 10 be reported
to lbe licensing aulbority.
Article III
Reports of Conviction
The licensing aulborily of a party state shall
repon each conviction of a person from anOlher
porty stale occurring wilbin ilS jurisdiction to lhc
licensing aulborily of lbe home state of lbe
Copyright (e) Wcst Group 1997 No d.nlllollri~inullJ.S. Oll"1. wurks
75I'a.C.SA ~ 15HI, Ilovel'" I.leellse CUlllpllel
Iicenscc. Such report sholl c1earl)' identil)' llle
person colII'icted, describe lhe violalion spccilying
tile seclion of lhe stalute, code or ordinwlce
violated, identity tile court in which aClion IIUS
taken, indicate whell1er a plea of guilt)' or nol
guilty was entered or lI1e conviclion was 0 rcsuh of
tile forfeiture of boil, bond or oUlcr seeurit)' and
shall include WIY special lindings mode in
connection tIIerewill1,
Article I V
Effect of Conviction
(0) The licensing autllorily in Ule home stale, for
tile purposes of suspension, revocation or
limitation of tile license to operate 0 molor vehicle,
shall give tile swne elTect lo Ute conduct reported,
pursuant to Article III of tIIis compact, as it would
if such conduct hod occurred in lI1e home state in
tile eDSe of convictions for:
(I) manslaugJller or negligent homicide
resulting from tile operation of 0 motor vehicle;
(2) driving a motor vehicle while under tile
influence of intoxicating liquor or 0 narcotic
drug or under tile influence of any otller drug lo 0
degree which renders tile driver incapable of
safely driving 0 motor vehicle;
(3) any felony in tile commission of which a
motor vehicle is used; or
(4) failure to stop and render aid in tile event
of 0 motor vehicle aceident resulting in the death
or personal injury of anotller,
(b) As to otller convictions, reported pursuant to
Article III, tile licensing authorily in tile home
stole sholl give such effect to lI1e conduct os is
provided by tile lows of tile home state,
(c) (ftlle lows of a party state do nOl provide for
offenses or violations denominated or described in
precisely tile words employed in subdivision (0) of
this article, such party state sholl construe tile
denominations and descriptions appearing in
subdivision (0) of lI1is article os being applicable
to and identifYing tIIose offenscs or violations of a
substantially similar nature and tile lows of such
party state shall contain such provisions lIS may be
necessary to ensure that full force and effect is
Paae 1
gilcnlo lhis articlc,
.IIS063 Article V
Applications for New Licenses
Upon application for 0 license to drive, tile
licensing autllority in 0 party state sholl ascertain
Ilhether tile applicwlt has ever held or is tile
holder of a license to drive issued by any otller
porty state, The licensing autllority in tile stole
II here application is mode shall nol issue 0 license
to drive lO the applicant if:
( I) The applicant has held such 0 license, but
lI1e smne has bccn suspended by reDSon, in whole
or in part, of 0 violation and if such suspension
period has noltcmlinaled.
(2) The applicant has held such a license, but
Ule swne hDS been revoked by reason, in whole
or in part, of 0 violation and if such revocalion
has Il0t tenninated, except lI1at after tile
expiration of one year from tile dote tile license
was revoked such person ma)' make application
for 0 new license if pennilled by low, The
licensing autllority may refuse to issue a license
to an)' such applicant if, after investigation, tile
licensing auUtority delennines lI1at it will not be
safe to grant to such p-:rson the privilege of
driving 0 motor vehicle on tile public highways.
(3) The applicant is the holder of 0 license to
drive issued by anotller party state and currently
in force unless tile applicant surrenders such
license
Article VI
Applicability of Other Laws
Except os expressly required by provisions of
this compact, nothing contained herein shall be
construed to alTect tile right of any party stole to
apply any of its other lows relating to licenses to
dri ve to ony person or circumstance, nor to
invalidate or prevent any driver license agreement
or otller cooperalive arrangement between a party
stale and a nonporty state,
Article VII
Cupyrighl (e) We,,! Gruup 1997 Nu daimluuriginllllJ.S. Guvt. wurks
CHIEF CDJISEL KafP
Fax:610-768-3117
Dee II '97 11:48
P.03
particular $lIcc,"S$ive punishment to be "civil" or "criminal" in naNre, see,
e.g., linit~d States v. W~rcl, 448 U.S. 242,24&,65 LEd. 2d 742, 100 S Ct.
2636, focusing instead 00 whether the sllllction WllS so grossly disproportionate
to the h,VIIl caused as to constitute "punishment" The Court thereby elevated to
dispositive status one of the factors listed in Kennedy v. Mendoza.Martinez, 372
U.S. 144, 168-169,9 L. Ed. 2d 644,83 S. Ct. 554, f~~!.e!.mininBwheth.era
s.!!!..~~nded to be civil wM so pW).iliye as to traosfonn it into a crinYnal
p~1llJy L even thou~enncdy itself em~~ed that DO one factor should be
CQlui!icrcd controlling, id" I1t169. Second, Hnlpcr "asscsscJl.Jh~c:l1.~.,ii:ac~e! of
th<<."~~~.f.!iotl.S.!J:lJposcd," 490 U.S. I1t 447,.!~t!!.e':~ as Kellp.Jldy
. ....--. T--~--
dc;manded, ev!liuati!)g.~l.e :~_~tut~9E Its fac~'!2. deteffi1:inc ,!,:hethe:l'~lpr_o_"jded
for what allloullled to a criminal sanction, 3nlLL~tI62., [.3) Such
d~vialionS-were ill consllh:i~d:-Halper's test has proved unworkAble, creating
confusion by attempting to distinguish bctweell "punitive" 1I0d "nonpuuitive"
p.enalties. Moreover, some of the ills at which it was directed are aadressed by
other constitutional provisiolls. ~us, this Court largely dbavows Halper's
method of anaJysis and rentrums the previolJs rule e;\empli'IJed in wil?ci. Pp. 4.9.
"'---.---- --...-----------'"
(b) Applying traditional principles to the facts, it is dear that pet!lioners'
criminal prosecution would not violate double jeopardy. TIle money penalties
staNtes' express dC.'iignation of their sanctions as "civil," see @@ 93(b)(1) and
504(a), and the fact that the authority to issue debarment orders is conferred
upon the "appropriate Federal banking agencies," see @@ I BlB(e)(l)-(3),
establish that Congress mtended these sanctions to be civil in nature.
Moreover, t1Jere is little evidence n much less the "cl~arest DLO_oClhiLCOUlt
- ~.._._-----
requil'es;-s.ee Ward, 448 U.~.at 249.. to suggest that ilie sanctions were so
~\-;em.~omi.iuldeft~ct.. as t.~Iin.~t:~~th;;;ril c!.1ll'ii!iildeseite-C-oilgress;
contrary intent, see Uni~d Sta!e.s.Y.lJ~s_ery..5J8 U.S. , . Neither
sa'iiCtroiiiils Fiistoncally [.4] been viewed as punisbment, Helvenng, supra,
at 399, and n. 2,400, and neither involves an affirmative disability or
restraint, see Flemming v. Nestor, 363 U.S. 603, 617, 80 S. Ct. 1367,41. Ed.
2d 1435. l"cither comes iuto play "ouly" on a fmding of scienter, Kennedy, 372
C.S. at 168, since penalties may he assessed under @@ 93(b) and 504, and
debannem impJ~ed under @ 1818(c)(1 )(C)(ii), without regard to the violator's
willfulness. Thai the conduct for which acc sanctions are imposed may also be
criminal, see ibi,. is insutt1cicnt to render the sanctions criminally
punitive, Ursery, supra, at ,particularly in the double jeopardy context,
see United States v. Dixon, 509 U.S. 688, 70.1, 125 1. Ed. 2d 556, 113 S. Ct.
2849. Finally, a1tbough the imposition of both sanctions will deter others from
t!mulating petitioners' conduct, see Kennedy, supra, atl6B, the mere presence of
this traditionaJ goal of crimimtl punishment is insufficient to render a
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lUTange 11 $crics oflolUl$ to third pnrties, in violation of VMOU$ fcderal
banking IIllltule$ And reguIAtioD$. According to the OCC, Ulo$e 10lUl$, while
nominally made to third partics, wcre iJl reality made to Ilud50n ill order to
enable him to redeem batik lIlu.;k that hc had pledged as cullateral 011 defaulted
loans.
On February 13, 1989, OCC issued 8 "Notice of MseS5U1ent ofCiviJ Money
PenaltY." The notice alleged that petitioners had violated 12 U.S.C. @@ 84(a)(I)
and 375b (1982) and 12 CFR@@ 31.2(b) and 21,.4(b) (1986) by causing the banks
with which they were associated to make loans to nominee borrowers in a maIUler
["7] that unIawfuiiy allowed Hudson to receive the benefit of the loans. App,
to Pet. for Cert. 89a. The notice also alleged that the illegal loans resulted
in losses to Tipton and Hammon of almost $ 900,000 and contributed to the
failure of those banks. Id., at 97a. However, the notice contained no allegation
of any harm to the Govcrrunent as a result of petitioners' conduct. "After taking
into account the size of the fmandal resources and the good faith of
[petitioners], the gravity of the violations, the history of previous violations
and other matters as justice may require, as required by 12 U.S.c. @@ 93(b)(2)
and 504(b)," ace assessed penalties ofS 100,000 against Hudson and S 50,000
each against both Rackley and Barese!. Id., at 89a On August 3 I, 1989, ace also
issued a "Notice of Intention to Prohibit F\lCther Participation" against each
petitioner. Id., at 99a. These notices, which were premised on the identical
allegations that formed the basis for the previous notices, informed petitioners
that ace i!!tended to bar them from further participation in the conduct of "any
insured depository institution," Id., at 100a.
In October 1989, petitioners resolved the [*81 OCC proceedings against
them by each entering into a "Stipulation and Consent Order." These consent
orders provided that Hudson, Baresel, and Rackley would pay assessments of$
16,500, S 15,000, and $ 12,500 respectively. Id, at 130a, 140a, 135a. In
addition. each petitioner agreed not to "participate in any manner" in the
affairs of any banking institution without the written authorization of the ace
and all other relevantregulatory agencies. n2 Id, at 13 la, 141a. 136a,
- - - - - - - - - - - - - - - - - -Footnotes- - - . - . - - - - - - - - . - - .
n2 The Con~ent Orders also containec1l<lngllage provicling that they did not
constitute "a waiver of any right, power, or authority of any other
representatives of the United Stares, or agencies thereof, to bring other
actions deemed appropriate." App. to Pet. for Cert. tBn, 143a, 138a. The Court
of Appeals ultimately held that this provision was not a waiver of petitioners'
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double jeaplU'dy clnim. 1,1 F.3J 536,5.\9 (CAIO 1996).
- . - . . - - . - - - - . - - - -End FoolllOICS- - - - - - - - - - - . - - . -
III Augu$t 1992, petitioners were indicted in the We5tem Di5trict of Oklahoma
in a 22-couut iudictment on charges [.9) ufcoll:.piJacy, 18 U.S,C. @ 371,
IWSBppUcHtion orbank fWltIs, @@ 656 IUlll2, IlOd Olllking fahe bauk: cntries, @
l005, n3 The violations charged illthc illwcum:llt restel.l on the same lending
transactions that fonned the basis for the prIor adrninlwative actions lnought
by OCC. Petitioners moved to dismiss the indicmlcot on double Jeopardy growlds.
but the District Court denied the motions. The Coun of Appeals affimled the
District Coun's holding on the nonpanlcipatlon sanction issue, but vacated and
remanded to the DL~trlct Court on the money sanction Issue, 14 F.3d ~36 (CAIO
1994). The District Court on remand granted petitioners' motion to dismiss the
indicuncnts. This ttme the Government appealed, and the Court of Appeals
reversed. 92 FJd 1026 (CAID 1996). That court held, foHowing Halper, that the
actual fines imposed by the Govemment were not so grossly dJsproportional to
the proven damages to the Government as to render the sanctions "punishment" for
double jeopardy purposes. We~anted certiorari, 520 U.S. (1997), becall~~ofcon
cems about the wide varie.!r.o nov~!J!2llbl~leop>vdy claims spawned in the
wake ()J Halper:!14 We-riOw iffuiD, bur. for different reasons. [.10]
. . . . - - - - - - - - - - - - - - F oomotes- - . - - - - - - - - - - - . . . .
n3 Only petitioner Rackley was indicted for making false bank t:ntries in
violation of 1 S U.~.C. tg 1005.
n4 E.g., Zukas v. Hinson, 124 FJd 1407, 1997 \VL 623648 (CAll, 1997)
(challenge to FAA revocation of a commercial pilot's license as violative of
double jeopardy); E. B. v. Verniero, 119 F.3d 1077 (CA3 199i) (challenge to
"Megan's Law" as violative of double jeopardy); Jones v. Securities & Exchange
Comm'n, 115 FJd 1173 (CA4 1997) (challenge to SEe debarment proceeding as
violative of double jeopardy); United States v. Rice, 36 V.l. 3.13, 109 F.3d 151
(CA3 1997) (challenge to criminal dmg prosecution follow1ng general olilitary
discharge for same conduct as violative of double jeopardy); Cnited States v.
Hatfield. 103 FJd 67 (C:\4 1997) (challenge to criminal fraud prosecution as
foreclosed by previous debamlent from govenmlent contractin~); Taylor v.
Cisneros, 102 FJd 1334 (CA3 i996) (challenge to eviction from federally
suhsidized housing hased on guilty plea to possession of dmg paraphernalia as
violative of double jeopardy); United Stales v. Galan. 82 F.3d 639 (CAS)
(challenge to prosecution for prison escape follo.....ing prison disciplinary
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proceeding as violative of double jeopardy), celt. denied, 519 U.S. (1996).
- - - - - - - - - . . - - - - - - End F ootuotes- - - - - - - - - - - - - - - . -
["'11]
The D,Quble J~oJ1ardy Clause proviA~~_t\l!lt no."p.ers()1\ (shall) be subJect for.
the same ottence to betlyice [lu~lileopardy oflife or limb." We have long
recognized that the. Double Jeopardy C~~~'.!~.e~not prohibit the ~p'~ition of
any addition~!I~ctJQ~n~ihjlicciuFl;.'1TJii common piU:lilJlc~;'.':Q~ d~cr!bed as
puniswncnt. L'uitcd States ex reI. Marcus v. Hess, 317 U.S. 537, 54~):.87 L. Ed.
443,63 S. Ct. 379 (1943) (quoting ~"OOl'e v. llIinoil:, 5S U.S. 13, 14 How. 13,
19, 14 L. Ed. 306 (I S52)}. The <;:'In~~.pr~teet!; only asa.iMt the im ocition of
multipl~ criminal punishments for the same 0 .e~.:). c vcring v. Mitchell, 303
U.S. 391, 399, 82 L. Ed. 91 7 ;.58S~ Ct. 630 (1938); scc also Hess, 317 T.:.S. Ilt
548-549 ("Oaly" "criminal punishment" "subjects the dc::fendnnt to :ieoplIrdy'
within the constitutioual meaning"); Breed v. Joncs, 421 U.S. 519, 528, 44 L.
Ed. 2d 346, 95 S. Ct. 1779 (1975) ("In the constitutional sense, jeopardy
describes the risk that is traditionally associated with a criminal
prosecutiou"), and theu only when such occw's in ~ccessive proceedings, see
Missouri v. HWller, 459 U.S. 359, 366, 74 L. Ed. 2d 535,103 S. Ct. 673 (1983).
Whether a particular pwuslUlleut is criminal or civil i~, alleast iuitially,
a maner_\l.f~t;llutory construction. Helvering, supra, at 399. A. [+12] emut
must first ask whether the legislature, "in establishing the penalizing
mechanism; imlieated either expressly or impliedly a preference for one label or
the other." Ward, 448 u.S. at 248. Even in those cases where the legislamre
"has indicateJ an mtention to establish a civil penally, we have inquired
further whether the statutory scheme was so punitive either in purpose or
effect," id., at 248-249, as to "transform wbat was clearly intended as a
civil remedy into a criminal penalty," Rex Trailer Co. v. United States, 350
U.S. 148, 15-1, 1001. Ed. 149,76 S. Ct. 2190956).
In making tills latter dctemlil1ation, the factors listed in .ti..eMedy v.
Mendoza-Martinez, 372 U.S. 144, 16lHW, ~ L. td. 2d 644,1l3 S. Ct. 554 (1!l63),
provide useful guideposts, including: (1) "whether the sanction lIlvolves an
affirmative disability or restraint"; (2) "whether it has historically been
regarded as a ptlllishment"; (3) "hether it comes into play only on a finding of
scienter"; (4:1 "whether its operation will promote the traditional aims of
punishment.. retribution and deterreuce"; (5) "whether the behavior to which it
applies is already a crime"; (6) "whether an a1tcrnativc purpose to which it may
rationally be connected is ("13] assignable for it"; and (7) "whether it
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appears e.\Ccssivc lnreJationto thc a1tcl1Ialivc purpu~o:: a~signcd." It is
illlpOl1aJllto note, hU\H:ver, that "t1l0::50:: facturs must be considered in relatiuu
to tht: statute 011 it:; fa~e," id. at 169, and "Ollly the dearcst prool" will
suffice to override legislative intent [\Ild lranSfOfUl wbat has been denominated a
civil remedy into a criminal penalty, WaTl~ supm, at 249 (internal quotation
marks omined).
Our opinion in United States v. Halper marked the first time we applied the
Double Jeopardy Clause to a sanction without I1rst determining that it was
criminal in nature. in that case, hwin Halper was convIcted of, inter alia,
violating the criminal false claims statute, IS V.S.C. @ 287, based on his
submission of 65 inflated Medicare claims each of which overcharged the
Government by S 9. He was sentenced to two years' iruprisOl\lllent and fined $
5,000. The Go\'ernment then brought an action against Halper Wider the ci\'iI
False Claims Act, 31 C.S.C. @@ 3729-3731 (1982 cd., Supp, IT). The remedial
provisions of the False Claims Act provided that a violation of the Act rendered
one "liable to the United States Government for ["'14] a civil penalty of$
2,000, an amount equal to 2 times the amount of damages the Government sustains
because of the act of that person, and costs of the civil action." Id., @ 3729.
Given Halper's 65 separate violations of the Act, he appeared to be liable for a
penalty of $ J 30,000, despite the fact he actually defrauded the Government of
less than S 600, However, the District Court concluded that a penalty of this
magnitude would violate the Double Jeopardy Clause in light of Halper's previous
criminal conviction. While explicitly recognizing that the statutory damages
prOvision o1'the Act "was not itselfa criminal punishment." tbe Disnict Court
nonetheless concluded that application of the full penalty to Halper would
constitute a second "punishment" in violation of the Double Jeopardv Clause, 490
U.S. at 438-439,
On direct appeal, this Court af!irmcd. As the Halper Court saw it. the
imposition of "punishment" of any kind wa~ subject to double jeopardy
constraints, :lIlcl whether a sanction constitutecl "punishment" dependecl primarily
on whether it ~crwd th~ tmditional "goal~ ofpunishmrnt," nam~ly "retribution
and deterrence." ld, at 44[( Any s~nction that was so [*15] "overwhelmingly
disproportionate" to the injury call sed that it could not "fairly be said solely
to serve [the) rem~di;11 purpose" of compensatine the government for its loss,
was thought to be e"<plainable only as "serving either retl'ibuti\'e or deterrent
purposes'" See id, 1I1448-449 (emphasis lIdd.~n)
The lInnlysis appli,'d by the Halr"l' Court <f"v;a,,,d from ""I' traditi,,"al
donblejeoparcly doctrine in two key resp~cts. First, the Halper Court oypassed
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tIle thre~hold question: whl::tho:r tho: sUl.:l.:e~~ive plillblunt:ut at i~~ue is a
"criminal" pWlislullt:nt. Instead., it focused 011 whether the ~auction, rcgarille$s
of wl1etIlcl it Waj dvilor cdmlnal, was so gru~sly disproportionate to the harm
caused as to constitute "punishment," In so dol.ng, the Coun elevated a single
Kennedy factor _. whether the sanction appearcd excessive in relation to its
nonpunitive purposes.. to dispositive status. But as we emphasIzed ill Kennedy
itself, no one factor should be considered control1mg a~ they "may often point
in differing directions," 372 U.S. at 169, The second Slgniticant departure in
Halper was the Court's decision to "asses$ the character oflbe actual sanctions
imposed," ["16) 490 U.S. at 447, rather than, as Kennedy demanded,
eval~\ting the "statute on its face" to deterrnme whether tt provided tor what
amounted to a criminal sanction, 372 U.S. at 169.
We believe that Halper's deviation from longstanding double jeopardy
principles was ill considered. nS As subsequent cases have demonstrated,
Halper's test for determining whether a particular sanctioll is "punitive," and
thus subject to the strictures of the Double Jeopardy Clause, has proved
unworkable. We have since. re~Qguized that all civil penalties have some
deterrent effect. See Department of Revenue of Mont. .v. Kurth Ranc10 11 U.S.
767,777, n. 14, 114 S. Ct. 1937. 128 L. Ed. 2d 767 (1994); United-States v.
Ursery, 518 U.S. , ,n. 2 (1996) (slip op., at 16-17, n. 2). n6 Ifa
sanction mu~t b~ "solely" remedial (I.e., entirely nondeterrent) to avoid
implicating the Double Jeopardy Clause, then no civil penalties are beyond the
scope of the Clause. Under Halper's method of analysis, a court must also look
at the "sanction actually imposed" to deterruine whether the Double Jeopardy
Clause is implicated. Thus, it will not be possible to determine whether the
Double Jeopardy Clause is violated tUltil ("17) :\ defendant has proceeded
throu~ a trial to iudement. But in those cases where the civil proceedine
follows the criminal proceedinll, this approach !lies in the face of the notion
that the Douhle Jeopardy Clause forbids the govemment from even "attempting a
sccol1d time to punish criminally." Helvering, 303 U.S. at 399 (empha.~is added).
. . . . - - - - - - - . - - - - - -Footnotes. - - . - . - . . . . - - . - - - .
n5 In his concurrence, JUSTICE STEVENS critkiles liS for reexamining our
Halper opinion mther than deciding the case on what he heli..vp~ i~ th" MrrnWpr
Blockburger grounds. But the question upon which we granted certiorari i.u this
case is "whether the imposition upon petitioners of monetary fines as in
personam dvil penalties by the Department of the Tre:lsUI')', together with other
sanction.~, is 'punishment' for purposes of the DC".1ble Jeop:u-dy C!:luse." Pet. for
Cen. i. It is this question, and :lot the Bloekbur3~r issu~, upon '.duch there is
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a connict alll<1ng the: COUlt5 of App~a15. Indeed, the: Court of Appc:~15 for the
Tenth Circuit in this case did not eV(;ll pa.~.5 UpvlI tJl': Ulod.uUI!lt:1 YUC,Livll,
filldillg it UWlecessary to do so. 92 f.3d at 10213, II. J. (+113)
n6 In Kurili Ralll;h, w\: lIdd that. ilit: IJtt:~t:ll~t: uLI UCIClIt:lll IllUllu,t: UI t:cr\:~t
Is not dispositive uf the duuuk Jeopardy que:;lil)IL 511 U.S. at 781. Rathel', we
applied a Kennedy-like test, see 511 \:;.S. al 780-783, befure conduding thut
Montana's dangerous drug tax was "the functional equivalem of a successive
criminal prosecution." Similarly, in Ursery, we rejected the notion that civil
In rem forfeitures violate the DOUble Jeopardy Clause. 518 U.S., ilt (slip
op., at 1). We upheld such forfeitures, relYlIlg on Ule hlstoncal support tor
the notion that such forfeltmes a.le cml and thus do not unpllcate double
jeopa.rdy. Id., at (slip op., at 24-25).
- - - - - - - - - - - - - - - - -End Foolllotes- - - - - - - - - - - - - - - - -
Finally, it should be noted that some of the ills at which Halper was
directed are addressed by other constitutional provisions. The Due Process and
Equal Protection Clauses already protect individuals from sanctions which are
dow1l!igbt irrational. Williamson v. Lee Optical ofOkJa., Inc., 348 U.S. 483, 99
L. Ed. 563, 75 S. Ct. 46 I (1955). The Eighth Amendment protects against
excessive civil flnes, including forfeitures. Alexander [* 19] v. llnited
States, 509 U.S. 544, 125 L. Ed. 2d 441, 113 S Ct 2766 (1993); Austin \'
United States, 509 U.S. 602, 125 L. Ed. 2d 488, 1 I3 S. Ct. 280 I (I993). The
additional protection afforded by extending double jeopardy protections to
proceedings hereta.fore thought to be civil is more than offset by the confusion
created by alfempti.n.1I: to distinguish bctween "punitiv.:;" and "nonpullitive"
penalties.
Applying traditional double jeopardy principles to the facts of this case, it
is clear t~af the cri.ffi1i1aJpr-osecution of these petiti.oilers would not violate
the Double Jeopardy Clause. It is evident that Congress intended the OCC money
penalties and debannent sanctions imposed for violations of 12 U.S.C. @@ 84 and
375b to be civil in nature. As for the money penalties. both 12 u.S.c. @@
93(b)(1) and 504(a), which authorize the imp\)sition of monetary penalties for
violations of@@ 84 and 37Sh respectively. expressly provide thM snch penaltie,s
are "civil." While the pmvislOn anthori7.ing dehannent contains no language
explicitly dcnominatin2 the sanctiolll'ls civil, \Ve think it significl'lnt thl'lt thE'
i1nthority to i,s!\(,: debal1nent orders is conferred upClnthe "nppmpri'lte Federal
bankin~ <l"ellcies." @@ 1818(e)(1 )-(3). That .such authority Wl'lS conft1rred npnn
[*20] administrative agencks is prima facie evidenr.~ that (ongrr~~ intended
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to provide for a civil s:Ulctiol1. See Helveril1g, supm, AI 402; United States v.
Spector, 341 US 169, 178,96 L Eel. 863,72 S. Ct 591 (1952) (Jackson, J.,
dissenting) ("Adulinistrative detenniuations oflinbility to deportation have
been sustained as constitutional only by considering them to be exclusively
civil in nature, with no criminal consequences or COOIJot:uions"); Wong Wing v.
United Stlltes, 163 U.S. 228, 235,41 L. Ed. 140, 16 S. Ct. 977 (1896) (holding
thlll q...intessentilll criminol punishments may be inlposcd only "by njudieiol
triol").
Turning to the second stage of the Ward test, we lmd that there is little
evidence, much I.:ss the clearest proof that we require, suggesting that dther
oce money penalties or debarment s.'1I11:.tious cUe "sv pllIlili..e in form cUJd effe~t
as to render them criminal despite CVlIl!\IC"'" iJllellltv L1IC ';vuucUy." VuelY,
supra, at (slip op., at 22). First, lIciLI1CI 1I1UIICY jJclltulic. IIVI dcu,ulIlcul
have hiMorically been viewed as punishment. We have long lecogJll.led thilt
"revocation of a privih:ge volulltarily granted," such as a debarment, "is
characteristically free of the punitive criminal eh:mem." [+21) Helvering,
303 U.S. at 399, and n. 2. Similarly, "the payment of fixed or variable sums of
money [is a) sanction wbich bas been recognized as enforcable by civil
proceed1ngs SLnce the Oliginal revenue law of 1789." Id., at 400.
Second, the sanctions imposed do not Lnvolve an "affinnative disability or
restraint," as that term is normally understood. Willie petitioners have been
prohibited from further participating in the banking lIldustry, this is
"certainly i'Iothing approaching the 'infamous pwuswnent' of imprisonment."
Flemming v. :>lestgr, 363 U.S. 603, (J 17,4 L. td. ld 1435, ~U S. Ct. Db7 (l~6U).
Thtrd, neither sanction comes into play "only" on a finding of scienter. The
provisions under which the money penalties were Lnlposed, 12 U.S.c. @@ 93(b) and
504, allow for the assessment of a penalty against any person "who violates" any
of the underlying banking statutes, without regard to the violator's state of
mind. "Good faith" is considered by oce in determining the amount of the penalty
to be imposed, @ 93(b)(2), but a penalty can be imposed even in the absence of
bad faith. The fact that petitioners' "good faith" was considered in determining
the amount of the penalty to be imposed inlhis case (*22] is irrelevant, as
we look only to "the stanlte on its face" to determine whether a penallY is
criminal in nature. Kennedy, 372 U.S. at 169. Sinlilarly, while debannent may be
imposed for a "willful" disregard "for the safety or soundness of (an] insured
depository institution," willfulness is not a prerequisite to debarment; it is
sufficient that the disregard for the safety and soundness of the institution
was "continuing." 12 U.S.C. @ 1818(e)(I)(C)(ii).
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Fourth, the conduct for which oce sanctions are imposed may also be crinlioal
(and in this case foml{'d the baSIS for petitioners' indictments). This t:,ct is
insufficielllto render the money penalties and ,lebannent sallctions criminally
punitive,l.:rsery, 518 U.S., at (slip op., at 2,\.25), partkul(ll!Y in the
double jeopardy conte;,;t, see United States v. Dixon, 509 U.S. 688, 704, 125 L.
Ed. 2d 556,113 S. Ct. 2849 (1993) (rejecting "same.conduct" test for double
jeopardy purposes).
Finally, we recognizc that the imposition of both moncy pcnwtics nnd
debarment sanctions will deter others from emulating petitioners' conduct, a
traditional goal of cruluual pUluslullCUt. But tll~ mcre prcscnce of this purpose
is insufficient to render a san('\ivn ~liUljn"l, ['23J d~ dd""CIILC "UldY
serve civil a~ well as criminal goah." UIM:ry, supra, al (slip up., <1(24);
see also Belulls v. Michigan, 516 U.S. 442, 452,134 L. Ed. 2d 68, 116 S. Cl, 994
(1996) ("Forteinlfe . . . serves a deterrent purpose distinct from any punitive
purpose"). For example, the sanctions at issue here, while intended to deter
future wrongdoing, also serve to promote tue stabUity of the banking industrY.
To hold that the mere presence of a deterrent purpose ren(lers such sanctions
"criminal" for double jeopardy purposes would severely undermine the
Government's ability to engage in effective regulation of institutions such as
banks.
In sum, th~re simply IS very littl~ S110Wlllg, to say notlung ot the "clearest
proof" required by Ward, that ace money penalties and debamlent sanctions are
criminal. The Double Jeopardy Clause is therefore no obstacle to their trial on
the pending indic!:!Jlents, and it may proceed.
The judgment of the Court of Appeals for the Tenth Circuit is accordingly
A.ffumed.
CONCURBY: SCALIA; STEVE~S; SOUTER; BREYER
CONClTR: JCSTlCE SCALIA, with whom JUSTICE THOrvlAS joins, concurring,
I wholly agreo:: with the Court's conclusion that Halper's t~st for whether a
sanction is [*24] "pmutive" was ill-considered and unworkable. Ante, at 7 -8.
Indeed, it was tbe absurdity of trying to force the Halper analysis upon the
Montana tax scheme at issue in Department of Revr.nue of Mont. v. Kurth Ranch,
5 J 1 G.S. 767, 114 S. Ct. 1937, 128 L. Ed. 2d 767 (1994), that prompted me to
focus on the prior question ofwhelher the Double Jeopardy Clause even contains
a multipl~-punishments prong. See ld., at 802-803. That ~valuation!ed me to the
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conclusion that the Douhle Jeopnrdy Clnu~t' prohibil~ ~lIccp,~siv(' pros...cution, not
Succl"ssive pUl1islunent, and that we should Iht'refore "put the Halper genie back
in the bottle." Id., at 803-805. Today's opinion uses a somewhat different
bottle than I would, returning the IlIw to its state immediately prior to Halper
_. which acknowledged a constitution:il prohibition of multiple punishments but
required successive criminal prosecutions. So long as that requirement is
maintained, our multiple 11lUlishmerJts jurisprudence csscntially duplicntes what 1
believe to be (he correct double-jcopotdy Inw, and will bc a3 barmlc33 in the
futurc n~ it was pre-Halper. Accordingly, I lUll pleased to concur.
JUSTICE STEVENS, coucurrlug ill tb~ judgm~llt.
The maxim [.25] that "hard ell:l"~ lUw...C IJl1U law" Illay ahv lljJjJly Iv t:a:ly
cases. As I shall explain, this Ca:ie \;uulu "a~i1y b" u"du"u by the:
Slraightforward application of wc:ll-estalllished preCeUelll. l'ieiUler such a
disposition, lIor anything in the opinion of th~ Court of Appeals, would requin:
a reexamination ofUle cenrral holding in United States v. Halper, 490 U.S. 435,
104 1. Ed. 2d 487, 109 S. Ct. 1892 (l989), or of the language used in that
unanimous opinion. Any proper concern about the danger that that opinion might
be intelpreted too expansivdy would be more appropriately addressed in a case
that was either incorrectly decided or that at least raised a close or difficult
question. III my judgment it is most unwise to use this case as a vehicle for the
substitution of a rather open-ended attempt to define the concept ofpunishmcnt
for the pOJ1ions of the opinion in Halper that trouble the Court. Accordingly,
while I ha~ no hesitation about concurring in the Court's judgment, I do not
join its opinion.
1
As is evident from the first sentence of the Court's OpiniOll, this is an
extremely easy case. It has been settled since the decision in Slockburger v.
United States, 284 U.S. 299, 76 L. Ed. 306, 52 S. Ct. 180 (1932), that the
Double Jeopardy [*26] Clause is not implicated simply because a criminal
charge involves "essentially the same conduct" for which a defendant has
previollsly be<:n punished. See, e.g., United States v. Dixon, 509 U.S. 688, 696,
704, 125 L. Ed. 2d 556, 113 S. Ct. 2849 (1993); Rutledge v. United States, 517
U.S. 292, 297,1341. Ed. 2d 419,116 S. Ct. 1241 (1996). Vn1ess a second
proceeding involves me "same offense" as the fIrst, tnere is no double
jeopardy. The WiO proceedings at issue here involved ditTerent offel)Scs that
were 110t even arguably the same under Blockburger.
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Under Rlockhureer's "same-elements" t~~r. two provisiolls art' not thl" "same
offense" if ellch conlllins an ckment nor included ill the nt.hn Dj-.:on, 509 U.S.
at 696. The p,>nalties impo.st'd IlI\ the pelihon<,rs in 1989 \It,",re ba.~ed on
violations of12 U.5.C. @'@ 84(a)(li and 375b (1982) and 12 CFR @@ 3 1.2 (b) and
21 5.4(b) (1986). Each oftbese pro,..isious required proof that c:'l:teu:;ionc of
credit exceeding cel1ain linnt. were made, n 1 but did not require proof of an
intent to defraud or the making of any false entries in bank record:;. The 1992
indictment charged violations of 18 C.5.C. @@ 371, 656, and 1005 and wlegcd n
conspiracy to willfully misapply bank funds and to mako false banking [.27]
entries, as well as the milking of such cntrics; none of those charges rcquircd
proC'fthat any lending limit had bccn c;icccdcd.
- - - - - - - - - - - - - - - - .. - F ootuotes- - - - - - - - - - - - - - - - - -
nl Title 12 V.S.C. @ 84(a)(I) prohibits totallo3Jls and extensions oCcredit
by a naLional banking associmiolllO my one borrower from e.\ceedillg 15 percent
of the lJ.mk's lullmpaireu capital and sUl1Jlus. 12 V.S.C. @ 375b aud 12 CFR@@
31.2(b) and 215.4(b) (1986) impose similar lending limits on loans to b.mk
officers and other insiders.
- . . . - - . - . . . . . - . - -End Foomotes- - - - - - - - - - - - - - - - -
TI1US, 1 tllink it would be difficult to find a case raising a double jeopardy
claim that would be any easier to decide than this on(;. n2
-
- - - - - - - - - - - - - - - - - -FooU1otes- - - - - - - - - - - - - - - - - -
nl Petitioners challenge this conclusion by relYlllg on dicta from Kansas v.
HcndIicks, 521 U.S. , (1997). There. after rejecting a double jeopardy
cballenge to Kansas' Sexually Violent Predator Act, the Court added: "The
Blockbul'ger test, however, simply does not apply outside of the successive
prosecutiOtl context." Id., at (slip op., at 23). This statement, pure
dictum, was unsupported by any authority and contradicts the earlier l1llillg in
United States v. Dixon, 509li.5. 688, 704-705,125 L. Ed. 2d 556, 113 S. C1.
2849 (1993), that the Stockburger analysis applies to claims of successive
punishment as well as successive prosecution. See also id., at 745-746 (SOUTER,
J., concurring in judgment in part and clissenting in part) (explaining why the
Blockburger test applies in the multiple punishments context). I cannot imagine
a good reason why Slockburger should not apply h.:re.
- - . - - . . . . . . . . - - - -End Footnotes- - . . . . - - . . - - - - - - -
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["'28]
II
The Court Dot only ignores the most obvious III1d straightforwlll'd basis for
llffinninS the judpent of the Court of Appcwj it Blso baa nothing to sa)' about
that Court's expllUllltion of why the reosoning in our opinion in United States v.
Halper supported a rejection ofpctitioners' double jeopard). claim, Instead of
gtllJ\tinS certiorari to co~ider A po~sible error in the CO\ut of Apl'e.u~'
rell.:loning or its Judgment, the Court candidly ad.u(JwlcJ!;c~ L1luL iL wu:; wUUVilteu
by "COliC ems aboutlhe wide variety ufuuvd uuuuh:jeuparuy daim~ spawned 111
the wake or Halper." Allte, at 4.
TIle COW1's opinion seriously exaggerates the significaace of those concerns.
Its list of cases illustrating the problem cites seven cases decided in the last
two years. Ante, at 4, n. 4. In every one oflllose cases, however, the Court of
Appeals reJected the double jeopardy claim. The only ruling by any court
favorable to any of these "novel" claims was a preliminary injunction entered by
a District Coun postponing implementation oCNew Jersey's novel, controversial
"Megan's Law." E. B. v. Porilz, 914 f. Supp. 85 (NJ 1996), reversed, E. B. v.
Verniero, 119 FJd 1077 (.29J (CA3 1997). Thus, the cases cited by the Court
surely do not mdicate any need to rllvisit Halper.
The COllrt also claims that two practicall1aws in the Halper opinion warrant
a prolIlpt attjustmeot in our double jeopardy jurisprudence. First, the Court
asserts that Halper's test is llIlworkable becallse it pennilS only successive
sanctions that are ';solely" remedial. Ante, at 8. Though portions of Halper were
consistent with such a reading, the e.,<press statement of its holdlng was much
n..:'lITower. n3 Of greater imporlance, the Coun has since clarified this very
point:
. - - - - . . - - - - - - - - - - -Footnotes- - - - - . . - - - - - - . - - . -
n3 "We. . . hold tbat under the Double Jeopardy Clause a defendant who
already has been punished in a criminal prosecution IDay \lot be subjected 10 an
additional civil sanction to the extent that the second sanction may not fairly
be charact~rizcd as remedial, but only as a deterrent or retribution." United
States v. Halper, 490 U.S. 435,448-449, 1041. Ed. 2d 487, 109 S. Ct. 1892
(1989).
. - - - - - . . . - . - - - - - - End footnotes- - . - - - - - - . . . . - . - -
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"Wbc::ther n pnrticulnr sanction 'cannot fairly be said solely to sClve
[*30] n remedial purpose' is on inquiry radically different from that we bave
traditionally employed in order to dctemline whether, as d ~,)\eguj i~ii1 W"llcl, II
civil sanction i~ subject to the DOlJule Jeupan.ly Clausc. Yet uowl1ere ill Halper
does the Court puqJott to make such a sweeping chauge ulthe law, instead
emphasizing repc:atc:illy the llarrow scope of its decision." Unitc:d States v,
Ursery, 518 U,S. (1996) (slip op., at17, n. 2).
Having just recemly emphasized Halper's narrow mle in Ursery, it Is quite
odd for the Court now to suggest t.llat its overbreadth has created some sort ot
judicial emergency.
Second, the Court expresses tbe concern that when a CIVIl proceedmg 10Uows
a criminal purushment, Halper would require a court to wait until judgment is
i.mposc::d in the successive proceedmg before decidillg whether the latter sanction
violates double Jeopardy. .<\lite, at 8-9. That concern is wholly absent ill this
case, however, because the criminal indictmc:llllollowed administrative
S.UlCtiOllS. There can be no doubt that any tine or sentence imposed on the
criminal counts would be "punishment." lfthe indictment charged the same
offense for which punishment (*31] had already been imposed. the prosecution
itsc1fwould be barred by the Double Jeopardy Clause 110 matter how minor the
criminal sanction sought in the second proceeding.
Thus, the concerns that the Cmui identific::s merely emphasize the accuracy of
the commeilt Ul Halper itself that it alUlQWlced "a rule for the rare case. . .
where a fixed-pen(!lty provision subjects a prolific but small-gauge offender
to a sanction ovcrv.:hclmingly disproportionate to the damages he has caused." 490
U.S. at 449.
III
Despite my disagreement with the Court's decision to use tb.ts case as a
rather lame excuse for writing a gratuitous essay about punishment, I do agree
y,ith its reaffllUlatioll of the central holding of Halper and Department of
Revenue of Mant. v. Kurth Ranch, 511 U.S. 767, 114 S. Ct. 1937, 128 L. Ed, 2d
767 (1994). Both ofthase cases held that sanctions imposed in civil proceedings
constituted "punishment" baiTed by the Double Jeopardy Clause. n4 Those holdings
reconfinned the settled prolJosition that the Government cannot u.~c the "civil"
label to escape entirely the Double Jeopardy Clause's command, as we have
recognized for at least six decades. See United States v. La Franca, 282 U.S.
568,574-575,75 L. Ed. 551. 51 S. Ct. 278 ["'32] (193\); Helwring v.
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Mitchell, 303 U.S. 391,398-399,87. L Ed 917,58 S. Cr. 630 (1938). That
proposition is extremely important hecause the StMes and the Federal Govc!rwnent
have an enomlOUS array of civil atlmini~tTRtiv~ sanctions at their disposal that
are capable of being used to punish persons repeatedly for the SlUlle offense,
viol:ating the bedrock double jeopardy priuciple of finality. "The underlying
idea, one that is deeply ingrained in at least the Anglo-American system of
jurisprudence, is that the State with all its resources and power should not be
allowed to make repeated attempts to convi.:t an individual for all alleged
offense, thereby subjecting him to embarrassment, expense tlLd ordeal and
compelling him to live ill a continuing Glate of amiel)' and in~ecurir/ ' , . ."
Green v. United States, 355 U.S. 134, 137,2 L. Ed. 2d 199, 78 S. Ct, :!21
(1957). However the Court ChOOSC3 to rccnlibrntc thc mcnning ofpunishmcnt for
double jeopardy purposes, our doctrinc still limits multiple sanctioo.s of the
rare sort cOlltcroplat.::d by Halper.
. . . . . ... - - . . - - - - - -footnotes-.. .. .. - - . -.... -.. . - -
n4 Other recent double jeopardy decisions hav~ also r~cognized that double
jeopardy protection is not limited to multiple prosecutions. See United States
v. Ursery, 518 U.S. (1996) (slip op" at 4); Ka.nsas v. Hendricks, 521
U.S. at (slip op., at 22). Otherwlse, it would have been totally unnecessary
to detelUline whether the civil forfdm.res in Ursery and the involuntary civil
cOllllDitment in Hendricks imposed "pwlishmem" for double jeopardy purposes, for
neither sanction was inlpleroemed via criminal proceedings.
.
- - - - - - . - - - - - - - - - ..End f ootllotes. . - - . . - - - - .. .. - . .. .. -
["33]
IV
Today. as it did in Halper itscl f, the Court relies on the sort of
multi-factor approach to the definition of punishment that we used in Kennedy v,
Mendoza.Mattinez, 372 U.S 144,168-169,9 L. Ed. 2d 644,83 S. Ct. 554 (1963),
to identify situations in which a Ctvll sanctiouls plUutive. Whether the
CO\ut's reformulation of Halper's test will actually affect the outcome of any
cases remains to be seen. Perhaps it will not, since the Court recommends
consideration of whether a sanctiou's "'operation will promote the traditional
aims of punishment .- retribution and deterrence:" and '''whether it appears
excessive in relation to the alternative [non-punitive) pW']Jose assigned.'''
Ante, at 5.6 (quotiug Keruaedy, 372 U.S. at 168-169). Those factors look
awfully similar to the reasoning in Halper, and while WoI; are told that they are
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never by themselves dispositive, Rnl", Rt 7, rh,.y shnlllri !;Ie cRJ'Rble oft'ippillS
the balance in extreme cast's The d"ng"r In r.hnllglng approaches midstrc:uu,
rather than rt'fining our I'stnblished approa,;h on an incremental basif, is th3t
the GovemlT1ent and lower courts ma>' be unduly influenced by the Coun'o new
nttirude, rotht'r than its specific prescrib~d (.34) teEt.
It is, of COlll'Se, entirely appropriAte for the COlut to perfomll1lawmnki.ng
function lIS a necessary incident to its Articlc III responsibility for the
decision of "Cases" and "ControYersiea." In lilY judgmcnt, however, 1\ desire to
reshope the h\w does not provide n legitimate basis for issuing what amoWll.$ to
little more thon IU1 advisory opinion thill, at best, will havc tho:: pr~,~JclltiAl
value of pure dictum and nl^Y in timc wlduly r~strk.t the prote,ti"us "f tLc
Doublc Jeopardy Clause. "It is not the l,abit l,f tlle C"wt 1" dedJe quesLivw. ur
a COllStilutional nalure wuess absolutely llece.\SillY to a decision of the case."
Dunon v. United States, 196 U.S. 283, 295,49 L. Ed. 482, 25 S. Cl. 243 (1905);
see also Ashwaudcr Y. TV A, 297 v,S, 288, 345..348, 80 1.. Ed, 638, 56 S. Cl. 466
(1936) \Brandeis, J., concurring). Accorwngly, \\.hile 1 coucw' illlhcJudgrncnt
ofafllrmance, I do nOljoin the COlUl'S opinion.
JUSTICE SOUTER, concurring itl tbe Judgment .
I concur in the Court's judgment and \\ith much of lts opinion. As tbe Court
notes, ante, at S, we have already recognized that Halper's statements of
standards for identifying what is criminally pUIDuve under the Fifth Amendment
needed rel/tsion, t;nited States v. ["35J L'rsery, 518 U.S. . ,n. 2
(1996) (shp op., at 16, n. 2), and there is obvious sense In employing common
critcna to point up"the CrIminal nature 01 11 slatute lor purposes of both the:
Fifth and Sixth Amendments. See Cnited States v. One Assorunent 01'89 Firearms,
465 C.S. 354, 362-366 (l984); United States v. Wa.rd, 448 U.S. 242,248-249,65
L. Ed, 2d 742, 100 S. Cl. 2636 (l980); Kewledy v. Mendoza-Martintz, 372 U.S.
144,168-169,9 L. Ed. 2d 644,83 S. Ct. 554 (1963); see also Ward, supra, at
254 ("It would be quite anomalous to hold that [tbe statute] crealed a criminal
penalty for the purposes of the Self-Incrimination Clause but a civil penalty
for other purposes"),
Applying the Court's Kennedy-Ward cmena leads me directly to the
conclusion of JUSTICE STEVENS's concurring opinion, The fifth criterion calls
for a court to determine whether "the behavior to which [the penalty] applies is
already a crime." Kennedy v. Mendoza-Martinez, supra, at 168-169. The efticient
starting point for identifying constitutionally relevant "behavior," when
considering an objection to a successive prosecution, IS simply to apply the
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p, 1'3
~amc-cleroel1ts test liS oligioMly stilted ill Olockbwgel v. United ["'36]
States, 284 U.S. 299,76 L. Ed. 306,52 S. Ct. 180 (1932). See Uuitell SUlleli v.
DixOll, 509 U.S. 688, 125 L. Ed. 2u 556, 113 S. Ct. 26,19 (1993). When application
of Blockuwger lUlller Ktllllcdy- WlU'U sbows lhal a successive prosecution is
permissible even on the asslUnption that each penallY I~ criminal, the issue Is
necessarily settled. Such is the case here, as JUSTICE STEVENS explains, See
ame, at 2 (STEVENS, j" concurring in)udgmem). Applying the Kennedy-Ward
criteria, therefore, I would stop just where JUSTICE STEVENS stops.
My acceptance of the Kennedy-Ward analytical scheme IS subject to caveats,
however. As the Court points out, under Ward, once It IS understood that a
legislature intended a penalty to be treated as CIVIl Ln character, that penalty
may be held crimmal tor Fifth Amendment purposes (and, for like reasons,
under the SiXth Amendment) only on the "clearest proof' of its essentially
criminal proportions. While there are good and historically grounded reasons for
using that phrase to impose a substantial burden on anyone claiming that an
apparently civil penalty is in truth criminal, what may be clear enough to be
"clearest" is necessarily dependent on context, as indicated by the cases relied
on ["'37] as authority for adopting the standard in Ward. Flemming v. Nestor,
363 U.S. 603, 4 L. Ed. 2d 1435, 80 S. Ct. 1367 (1960), used the quoted language
to describe the burdell of persuasion necessary to demonstrate a criminal and
punitive purpose unsupported by "objective manifestations" oflegislative
intent. rd., at 617. Rex Trailer Co. v. United States, 350 U.S. 148, 154, 100 L.
Ed. 149,76 S. Ct. 219 (1956), cited as secondary audlOrity, required a
defendant to show that a "measure of recovery" was "unreasonable or excessive"
before "wbat was clearly intended as a civil remedy rwould be treated as] a
criminal penalty." One lot Emerald Cut Stones v. United States. 409 U.S. 232.
237,34 L. Ed. 2d 438,93 S. Ct. 489 (\972). cited Rex Trailer for that standard
and relied on the case as exemplifying a provision for liquidated damages as
distinct from criminal penalty. I read the requisite "clearest proof" of
criminal character, then, to be a function of the strength oflbe counterv~i1ine
indications of civil nature (including the presumption of constitutionality
enjoyed by all ostcnsibly civil statute making no provisinn for tht> S~f~f!11~rri~
guaranteed to criminal defemJ;mts. See Fkmming, supr~, ;11 Ii 17)
I add the further caution, to be wary of re~ding ("'1~] Ih" ""l,'::\rt>~t
proof' requirement as a guaru.lltee that sllch a ci~mnmlrnlinn i. lik"ll' I.... b.. a~
rare in the future as it bas been ill the r~~t Sf'''' 1 Tl1il"r1 SIn II'. V Halp..r. 490
U.S. 435, 449, 104 L. Ed. 2ei 487, I {)q S ('t IRQ? (I ()~()) ("\\'bat me announce now
is a rule for the rare case"). We hav,~ nnlpd "I."wh,.r" Ih,' "vpandiug U5~ of
ostensibly civil forfeitmes ~Ild penaltil's llnrl"r th.. e:dg':!ndes of th~ current
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drug problems, see Ursery, supra, at (oUp op., at 4) (STEVEr';S. J.,
concurring in judgment in p.l.ft nnd dissenting in part) ("In rc.;cnt )'c.U's, bl.)th
Congress llI1d the state legislatures have nnncd their law cnfor.;emeut auth"ritks
with new powers to forfeit propert) that vastly cx.;ccdcd tl,cir tradltioll,u
tools"); l:llited States v. James Dal\i.:l Good ReM rropelty, 510 U.S. 43,81-82,
126 L, Ed. 2d 490, 114 S. Ct. 492 (1993) (THOMAS, J., l.U1I"wliu~ ill pllllllllU
dissenting ill part), a developmcul Jouulk~~ ~jJW1CJ u.y till:; iu,-n:<1:>wgly
inviting prospect of its profit tf) tile Government. See ill" at 56, n. 2 (opinion
of the Court) (describing the goVel1Ullelll'~ tinancial Slake in mug forfeiture);
see also id" at 56 (citing Harruelin v. Michigan, 501 U.S. 957, 979, n. 9, 115
L. Ed. 2d 836, III S. Ct. 2680 (1991) (opinion of SCALIA, J.) for the
proposition C.39] that "it makes sense to scrutinize govenmlental action more
closely when the State stands to benefit"). Hence, on the infrequency ot
"clearest proof," history may not be repetitive,
NSTICE BREYER, with w110m JUSTICE GfNSBURG joi.ll~, concurring in the
judgment.
! agree with the majority and with NSTlCE SOUTER that United States v.
Halper, 490 U.S. 435, 104 L. Ed. 2d 487,109 S. Ct. 1892 (1989), does not
provide proper guidance for distinguishing between criminal and non-criminal
sanctions and proceedings. I also agree iliat United States v. Ward, 448 U.S.
242,248,65 L. Ed. 2d 742,100 S. Ct. 2636 (1980), and Kelmedy '!.
Mendoza-Martinez, 372 U.S. 144, 168-169,91. Ed. 2d 644,83 S. Cl. 554 (1963),
set forth the proper approach.
-
I do not join the Court's opinion, however, because I disagree with its
reasoning in two respects. First, unlike the Court I would not say that "'only
the clearest proof'" ",:ill "u'ansforrn" into a criminal pun.isbmeot wbat a
legislature calls a "civil remedy." Ante, at 6. I understand that the Court has
taken this language from earlier cases. See Ward, supra, at 249. But the
limitation that the language suggests is not consistent with what the Court bas
acrually done. Rathcr, in fact if not in tbeory, the Court has simply [.40]
applied factors of the Kennedy variety to the matter at hand. In Department of
Revenue of Mont. v. Kurth Ranch,S II U.S, 767, 114 S, Ct 1937. 128 1. Ed. 2d
767 (! 994), for example, the Court held that the collection of a state tax
imposed on the pOS3ession and storage of drugs was "the functional equivalent of
a successive criminal prosecution" because. among other things, the tax was
"remarkahly high"; it had "an ohvious deterrent purposr."; it was "conditioned on
the conunission of a crime"; it was "exacted only after the ta.xpayer had been
an'ested f,)r the prec:ise conduct that gives rise to the tax ohliearinn"; its
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alternative function of raising revenue could be equnl1y wo)ll served by
increasing the fine imposed on the activity; (Uld it departo)d mdicnlly from
"norrnall'evenue laws" by tmdns contrablll1d goods pcrhaps destroyed before the
tax was imposed Id., at 781.784. This reasoning tnlek:; the non-el(cl~ive list
of factors set forth in Kennedy, and it is, I believc, the propel' approach. The
"clearest proof' language i~ consequently misleading, and I would consign it to
the ~8Jnc kgallimbo wherc Halper now rests.
Second, I would not decide now that a court sllUuld evaluate a statute only
'''on [".H] its face,''' ante, at 6 (quoting Kelwedy, 372 U.S. at (69), rather
than "assessing the cliaracter of the actual SauctiOllS imposed." Halper, 490 U.S.
at 447; antc, at 7. Halper involved all ordinary civil.fine smtute that as
normally applied would not have created allY "double Jeopardy" problem. It was
uotthe statute itself, but rather the disproportionate relation between fine
a.nd conduct as the statute was applied in the ludividual case tl1at led this
COW1, unanimously, to find that the "civil penalty" wa.s, in those
circumstances, a second "puniSlUllem" that constituted double jeopardy. See 490
U.S. at 439,452 (finding that $ 130,000 penalty was "sufficiently
disproportionate" to $ 585 loss plus approximately $ 16,000 in government
expenses caused by Halper's fraud to constitute a second punishment in violation
of double Jeopardy). Of course, the Court in Halper might have reached the same
result through application of tlle constitutional prohibition of "excessive
fines." See ante, at 9; Alexander \'. united States, 509 U.S. 544, 558-559, l25
L. Ed. 2d 44J, 113 S. Cl. 2766 (1993); Halper, 490 U.S. at 449 (emphasizing that
Hal per was""
"the rare case" in- which tllere was an "overwhelmingly (*42]
disproportionate" fine). But that is not what the Court there said. And nothing
in the majority's opinion today explains why we should abandon this aspect of
Halper's holding. Indeed, in context, the language of Kennedy that suggests that
the Court should consider the statute all its face does not suggest that there
may not be further analysis of a penalty as it is applied in a particular case.
See 372 U.S. at 169. Most of the lower court confusion and criticism of Halper
appears to have focused on the problem of characterizing -- by examining the
face of the statute.- the purposes of a civil penalty as punishment, not on the
application of double jeopardy analysis to tbe pennities that are imposed in
particular cases. It seems to me quite possible that a st.'lrute that provides for
a pwushmentthat normally is civil in nature could nonetheless anlouot to a
criminal punjShment as applied in special circumstances. And I would not now
hold to the contrary.
.
..
._._ , '1_...,
.. .
J. ~. eOllJl't or c:oKXO. 'LBAa or 'RUiAZllILrJlU eOI1ll1'T
en1%. IlIVtU01I
COKMOJOBALTH or
DEPAll'1'lUlll'1' or T
· ~ICROLAIl V.
NO. 9512-2629 -\---
( V. 9602-0:l.22 ~
. 'VWILI..IIJol B. /lEOPORD 110.
~K v. 9601-0162..\'
. IS MITll t/O.
~:"VIN v. ,~c~-ooe~ ~
, , . .:70Hlf.'SON 1Il1.
V. 960J-0044 ~
t
. 0DIIAJlD ZAWltOTN"i t NO.
V. "~Z~~ : 96C2-CU3 \
AOWUD J.. IlA."!I1UN ./f/ 'R01'1ti- NO.
'.1 A' I
. IV. v . 1996 '
v. "lV :
. ~EHHIrER KUEHNLE 11/l..t.o NO. 11510-00:24 ~
v, '!llo-C03e~
.:ftAMES T. McCAl"fIlXY NO.
v, 515:1-0073 --\"
'~O/lll MARTIlfO NO;
v. 9511-0127 >("
. ~ VAll PHlUI NO.
.
. V;:SEPH V. 9511-0128~
Jotm CALVITTl t~o.
~ V.
. \ ROBIm'l' REILLY NO. 9512-0102 +
I~
08t
,
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V. I "U-Ol0::l~
~:tMNA AJDI PRJY8l'JC I
I . .HO.
. I
V. I !l~12-0056 ~
VTllOMAlI E. I
.. PAn,ml I . NO.
I
V. r ,aOl-015J l
/nHO'l'H't A. I
. KEHOE NO.
I
V. I DGCA-01E;O .V
? I
~ "1:tltlxt.M IJ, cotfLZ'/ I HO.
I
i. V, , 'aOl-Ol.0~
I
. I, HILUM 1lAAO't I NO.
.
. 9~08-0U4 \
V. I
~ILLUH JAMES ROOT I
. I NO.
I OJnttmr
J:mncr~c, J. narl'n: o'rlln.. ?7, 1111111
:1:.. 'IOCmJ~~ RrHORY
rile .boV'A-~ptioned' Petitioller. neve ap~led trCllll order.
entered by COllllonvelllth of 'ennsYl Vania Oepllrtl1lant of
,
Transportetion (.OOTR) suspendin; their 1I0tor v8h!ele Operator'.
.1ie.n....
All Petitioner., witll the e~e.ption or Hr. H111ia= J.
Conley, Vere convicted in the Stat. of N~v Jer..y of Cr1vin; Under
th. Influlnce ("CUI"); Ilr, Conley vas convict&cS of DOl in the stet.
z
i1~
~t~
tn/He! :IJ AwJDOUDlld:OI LJ:&~ 98. WLO eog'Ofo( ;
........... 1.~lV
ot Florida.' A. & re.~lt or th.ir DUI conviction.. Petitioner.
receiyod a mand.tory cix (6) mon;n .u.pan.ion of their N4w Jax..y
driVing privileqes.
1'hrouc;h elecaonlc tran.nitRion/ "'e" Jorny notirild POT
of Petl tionar.' fore19n or out-ot-stata DUI convictions.
As a
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re.ult or this notlricatlon. DOT In turn notifi.d Pat:.1t:ionlrJl thair
Pennsylvania driver'. licans.. would ba 5u.panded tor. period of
one (1) yoar, pur.uant to 7S Pa. C.s. S 1532(b) (J), thr~9h Article
IV (L) (6) ot the Orivet" Llcan.. Compact ot 1961 ("COIIIpact"). This
one (1) year suspension would be in addition to the .ix (G) month
sUspension 1.IllposlId by HIf" Jersey tor Ii ~otal of (ie) :aonth.a.
Petitionor. than flled timely appaals to this Court.
The Court h.. hand tntillony and arQ\lll.ent on each ot th.
......... CU.a n.c:hllll.... ni." .u1' at ..". RlUIa Ju".. .11 .,"..1
to this COI.lrt, "I h.VCl concolidatod the lIlt-t.ara tor the -alte oC
jUdlcial econollY,
n. rssUI.
1, WlllSl'li.ER TRE DRIVER LIClHSB COMPACT
EN'I'ERSO INTO Il't TIll: PENNSYLVANIA
SICP.E'1'ARY OJ' rRAJlSPOR'1'ATION IS AN
UllCONSTITtr.!'ION'u' DELEGA'l'Ial or T'ItE
COMKONWBAL,fIi's LEaULATIVE POWER.
Potitioners contend that. the penn.ylvania LaC]illlat\lre
("Leq1s1at.ure") improperly deleqaUid hgialatlvu power to the
Secre-t.ary ot 'l'ranapot'tation -("Secretary"), ot' altarnat;lv.~y, t.be
L419hlat.ure 11Iproperly delegated the executive authorit.y ot tb.
,
F= the uk. of aimplicity and to avoid npatitivene.. in
en1. opinion. wharevar "I/ew JBrIlOY" ic atatGd. it shall inClude tbe
"stat.e ot Florida".
J
€ 3'Jtld
~t~
b'11Hd ;IJ ,I,lljJDOUO!ld:OI Ll:tt 96. Wl.O 80S 'ON 3'
.,# I..
]
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, 3!:b:f
'(D-'
'O_.OJ
Gov.rnor ot Pennsylvania ("Governor") too tba :lacretary. lIa
d1eagree .
The Leqislatun is Clearly pernitted to c!aleget.. to
adminlctratlvo .uthoriti... II1.lch ae the SacrAl:u-y, the authority to
rind the recta or c!et.rmine the exi.t&nce (or nonexiltenco) ot a
tactual lituaeion or condition on which the operation ot a law va.
ma~e to depend. Commonwealth v. Charnev, '54 Pa. 285, 312 A.2d. 38
(1973)1 Con~onwo.lt:h v. Funk, J2~ Pa. ~90, 186 A. 65 (1936). The
very nature of govarnnent n.oe..itat"" delegatin.. "deterlll:.ninQ
power" beyond the LBgialatlU;lI, eea charney, 312 1\.2d Qt 40-~l.
Also, legislative qrant ot authority ~uet contain ~daquete
aundarc!. which will guide and rutrain. tha exercise
or the
c!ele9ated odministretive functions. ~. at 4l.
KOllavor, tho Be
atanc!arda do not require passing laws tar each inc!ivl.dual
circumstance wnich mey eria.. rg, at 42.
In the inetant mateer, the Leg1.1ature ha. aelesatld ~o
the Secretary tohe authority to eU5pend the operae1nq priVilege ot
6 P.nn.ylvenia resident when a tactual determination 1. made by the
secr.tary ehat the 1Il0to:r1et h"Q beln conYictld of a 5u'p.l\~lble
viole.tion.
Chaptex- 61 ot the Pennsylvania Motor Vebicle Code
("Vohic1e cod.") cl.lrly a:ate& the 1~1.1ative policy and
guideline. that the secretary hll& be.n ell1powered to enforc.,
specifically concerninq tor..iqn convict.iona of: Pennaylvani.
r..idents. Section 6141 state':
It i. the policy of this COMmonwealth
to prOMote and .noouraqe the fulleat
P09Sible USI ot its hishway 5y.t~ by
authorizing the ~aXing and execution
A
~U9SStz
tnJHd :() A~l.(}(}UOlld:a! Ll:€; $6, W~ 60S 'QN 31h
of reciprocal aqreeaenta, arran9ement.
~nd declaration. vith other .tates,
provUlca./ cerrl.."oria. ana COWltrie.e
with r.epect to driver., licenao. and
vahicl.. regi.tered in this and other
atat.a, province., t.rritorie. and
countriee, thUg oontributin9 to the
econoftic and .ccial development and
qrovth of ~ie Commonvealtb.
7e Pa.c.6.A.$ 6141.
Title 75, Seetlon 61" of ~. Vehlcle Code, oantltlad
Enforcement Aqrooments, .pecifically de.cribes the parameters or
!:hll secretary's delaglhd ...tilority, lnclucUn9 perala.1cm to entllr
into agreements with other atates which enforce tho provlaions of
tilt Vohicle Code.
Moreovor. in Seetlon 6146, !:he IA9'i.1&turo
errectively ratified the Compact by expressly Qrancinq the
Sacretary parMie.ion to enter ln~o the Coupaet.
since the Co~paet i. merely a tool vhich facilitate. the
Sacretary'. fAct-findin.. .billtie, in ordar to impoae .uepen.ione,
the secratary may consider oonviction. in si.tar stat.a in impoaln..
.u.p.neiona. ~ Sheehy Motor V@hiel. Oce~n~or IJie_n.. Ca.., 1"
PI. super. 122. 17J A.2a 752, 755 (lg61). The compact provid.a the
SecretAry with a Illo.n. to qather tect~ indicae!n.. vhich driv.ara are
. threat to hiqhway s.eety.
Likewise, the eaministrltive a~thority .tlorded the
Secretary is not en apropar delaqaUon of executive authori1:Y, Aa
tile dhc~..ion above concn"i"g deleglltion or leqialltive paver
Ulull'trat.., _~ law h.... ba.!." anact~_by.~e. _~ehry !...~.
secretery has onlY provided ~n..dditiona~ Ille~~~. t~~.cover facts
_about un..to drivor. who are ~ennsylvania r..ident.. IRa
-~._._---_."---------. .-. ----
5
S ::ald
OOCl.W)::IZ
lfllHd .oJ. .l.lI:i.1!N:lUOl:ld: a I 81: €I $16. tl.l to lWJ9 'ON
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~ran5mieeion notifyinq DOT ot Pctit1anere' %oreiqn DOl convictiona
is he.rsay and :.115 to satisfY the requirement. tor admi..ian at
foreiqn dOCUNents.
Petitioners' cQntent~on ie eeteat.d by Title 7S, section
lS'O of the VQhicle tad., which states in pertinent partl
(d) Cocu~entation.
(1) In any proceedinq under this
.ection, d~ent. received by the
department from ~. Cow:te or
adninlstrative bodiee of othsr state.
or the lederei government shall be
adnis.ible into cvidenoe to support
the d8partaent's case, In addition,
the depertnent may treat ~be received
dOCuMsnta as do~.nts Dr tbe department
and Uee any of the ~ethode of storage
pe~itted u~er the provision. ot
42 pa.c_S..S 6109 (relatin9 to pbotoqrapnic
copie. of business and public recordS)
and may reproduce .uch docunent..in
accordanea with the prOVision. of
~2 Pa.C.S. S 5103 (r.latinq to proof 0:
otflclal record.). In addition, it the
d.c!IIP1"'l'nIInt rctCllivI!8 i "rom.tic" trcm ~o
COU~8 or edministraeive bod!.. o~ other
.~at.~ nr tha FAd~~Bl aOVGrr.nent bv means
2L-Jl.ctronie transmi..ion. it ~v c.~if~
that it haa received the 1r.fo~atlcn bv
~::~~fi~a~t~~~~t~ ~a~~~:s~~~i:n~r.~~:t
ofth.. ad1udiea~ion and facts cont....in..d in
sueh electronic~.
'.
r
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75 i'a.C.S. 5 1550 (d) (1) teftphuia adcle:l). 'rhus, Section 1"0
pernita ~ne edn1ss1on of the.. .docum~nts tor the proof ot ~h. tacts
contained on t.heir fe.... vithout turth4!::' recour.. to auth..ntlc<ltion.
Accordinqly, ietitioner.' arqpment ~.t teil.
.
7
J.~
()!l€U.99:itCl
tfllHd :IJ ~ll)()U.md:al 81:tt 86. RIm lI09 'Oft
(~
~
). WHE'1'BlUl DOT'S SU9P!]{SXeH oT PE'l'ITIOH1lI\lS'
OPERA'UNC I'RIvruca:s PeR om: (1) YEAR
FOLLOWllfG A SIX (61 )IOIfTR tmf JJ:Jtsn
SUSPENSION VIOLATES ~!rR FEDERAL AND
STATZ CONSTITUTIONAL RIGKTS,
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Petitioner. alle9. DOT'. su.p.r..ion of thlli~ oparae!
privilege tor one (1) year following A eix (6) month Hew Jars
Duepenaion violatee their radaral and state conetitutional ri9ht
1) to due proce..; 21 to eqUAL protection, J) to be trllll t.r.
...LiL......)' ':l"'".L'.....IlL..l .c:li...., .Il..! ~l """ lu l... .,l.....s L, J"uL"
l
, eopardy. We agr...
l\1l:hou9h cparatin9 a lllotor v..hicle 1. . "privile'Je" a
not a propen:y r19ht. the COll\lllonwee.ltll's regUlation of th
privillga muat b. tempered by adher.nc. to con.titutionl
principlaa. ~ Plo~an v, Comnonw..lth DeD't. of T~.nsn.. Bure.
or Driver Lieenllln'l, ~::l~ Pl. U-,' ClJ' A.2d 124, 126 (199J
Further, tn.. bolder of a motor vahicl.. operltor'. 1ic"nAQ .ey nl
be aaprlVBd of th4t prlvilllql by arbitrary action of tt
Gcvarnmant.
COllmonv..a1th v. Im"r!ck, 3n PlL. 318, '6 A.2d J'.
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(1"3). The United states Supreml Court hat acknew1edqaa that t:
Fifth ana fou~~een~ Amendment. right to b. fr.. Iro~ baing place
twica in jeopardy 1mplica~ea tb. impo.i~ion or ftultiple sanctionl
r.9ardleell of vhe~.r the)' are lab41ed_IlS "civil" or "criminll.l..
United Statu v. Ilaln.s;t. 490 U.S. _JS, 10' &,ct. 1892, 10.. L.rd.:
48? (UU). Th. SUl>I:-_ c~.t in H.hn 4.....~'lh...s ll.., ..lYlllt.Lo.:a/
ana aar1QUI aOUlue jeoparClY 1111p11cae1onll that u'l.a When a
.
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, Sl)eCi1f1cally; viOlation. of the Firth. J!lvht:h an<l J'n"'''......nt
Amendlllent. ot the Un1tad States Ccnat1tut1on, and ArUCila I
Sactions 1, 10, 11. 13, 25 end ZG of tha Penn~ylvanio Const1tutio~
8
e ~
oew.ggst~
tflJHd :ll AW100i1DlJd:QI 81:Et 96. E~l.O acs
(lj
v, .
. . .... ,."'"
individual ia puniahed tv1ce in aep.ratD proceed1nqs for tho aaa.
conchtct .
Specifically, H81ner, def.ndant, Irvin Halper, w..
oonvio'e. of, inter AlLi, alKtY-flv. Dep~a'e vielatione of the
crilllinal talee-chine statute, 18 U.S.e.A, 5 287.
In eech
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incident, KAlper fraUdulently dellanded $12.00 in reilllburaomant tor
medical aarvices worth only $3.00. ltter H~lp.r w.e aent.nced to
two yoar. iaprbomont. and Clna4 ",000.00, the Government filad II
.eplu'at. action 1n oieuict Court to r.cove:- a $2.000,00 civil
penalty for each of the lixty-five viollltions, for . total 01'
;130,000. The HlllDor eourt hold that Ua dicpariti611 between the
Oietl."lct Coul"'; 'a approxillation of $16,000.00 in GOVerJ1ll\ent expenses
.nd Halp.r'. pot.e.ntial liability under the ,.lue Clame Act, 31
U.5.C. 55 3729-3731. OlIorll Ulan 5130.000.00, ware llutl'iciontly
dillproport1onatQ th.t. nnction under the Aot would eOl\stit~te II
......"..11 .....>.i..I.......L 1.. vlvlaLl"u ve uv..1I1... J"VI'4'-.1)'. n... :S..V::lIl1e
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Court rellandad the O4.e to pe.rrnit the Government to dOLlllonetrat. the
o1strict coun's a.GIIB.llant ot its injuri.. .... ..non.oue. In
Ilddreuing the illlpliclltion of the Double Jeopardy Clau..e, tile
HA1~ar Court le.tea:
This constitutional protection is intrineically
personal. It. violation can be ld.ntiti.d only
by a,.os_ing th.. character of th.. .ot~.l .¬ion.
imposed on the individUal by tho maChil\ary or ~.
.tate.
-
In .&king this a.....~ent, the labele "cr1ainal"
and .civil" are not DC pn'.aount impOl'tanc:e. It
i. c~only unaaratood that civil proceedinq. .ay
a4vanoe punitive e. v.ll a. ranedilll 9oal., and,
convll1'eely, that boU punitivo and rUledial 90al.
Day ~ .erved by cri.inal pen.lt!... (Citation.
9
e :s::d
OOEU99Stil
tnlHd :lJ ~.I.CN)UOIld:QI 6l:el Q6, rvJJJ llO!l '0f4 i11:l
I
Ot 3!Jtld
(fj
ollitted) the noUan a' puniah_nt, .. "e cOllllonl'
under.hnd it, C\Ita acro.. th. divbia" betv..n 1;h;
ei viI and tbe c':i.inll 1&v. and Zgr Sh.I .l2!l.tJl.!lq. 0:
~~!~!:t:" ,,:~~:~:~~ l~~~~ .E~r e~:~l:: ~~~:~~~
~, :~:::;. Feicek, 485 U.S. 624. 631, 108 s.et,
1423, Ha, " L.l!:cl,2d 721 (1918) ("rT]he labels
aftixld .ither to the proce.ding or to the relief
illPO'ld, ..ara not controllinq and vill not be
allcved to def..t the applicable prot4ction. 0:
'ecleral constitutional lav"). To tbat and, 1ai
ii~m;:1~~fr1V~~E~r~~i:
~ ~:~~ :~ 1i;~P.. Silllply put, a civil .. IoIell ac a
e~imin.l I.nction conatitute. P~ni.~'ent wnen the
aanction .1 appliad in the individual C'~e ee:Ves
the 90als ot pun1ahme~t,
.Ill., 490 U./S. lit H7-448 (ellphuia add..<l) ,
In 15194. the Onited Sl:8tu SUpre1ll1 Court elCpllndlld the
i~paOt of Halner, ~. Ie Deb't o( Reven~. ot Montana v, Kurtn
RIl"~b.
u.s. ,114 S.ct. 1937, 128 L.Ed.2d 767 (1994).
- -
tn
Kurth Ranch, the Supreme Court hald . tax 1.v1~ on po.....ion or
marijuana, followlng conviction, 1a not .1mnlun. 'rolll doubh jl'nre.ro:\y_
5crutLny ailllply DeCaU3e it is e t.~. The COurt round that sino.
the "tax. vas conditioned on the oonis.ion of . crime, ancl vas to
be 'lopolled only after the arrest and convictlon ot the taxpayer,
thorefora, it vas p~,itive in n.t~re, In-t1n~ing the Montana tax
va. clearly punishm.n~, the Supreme Ccu~ did not n.ed to subject
the matter to the HalDe~ proport1onality-expen.. review. Nor did
the supreme Court find tbe talC to have any ralledJ.al, benetits
whatsoever. A. luch, the imposition of the tax o~ defendant va.
prohi~ited by the Double Jeopardy Clau.~.
111 the j.n..t.nt Illatter. as a rOllult 0: Petitioners' New
3.0
ce€U9SSI~
tr11~ ~ ~cw:al 6l:€t 00. WLO 80S 'ON .
_'_"~'k;" '_._
I.
(i,.
....'.....
1..._ "'\"I
r
Jeraay DUI convictione, Petitionere' drlvinq privil~e~ ware
IUlpe~ed 1n Hew Jeraey for six (6) months. A sUb..qu,nt one (1)
ye.r DO'l' IUlpendon tacked on to the .ill (') Donth euspene ion vaUld
have the oVerall dteet of an dqhteen (le) 1I0ntJI IUIIgensicn of
petitioner.' driving privil.qe~. Had the underlying DU! oftanso
tak91l place in thi. commonvea 1 tll, the t'1rst.till. ottendllra lIould be
eli'1ibl. far acc.lerated rehabilitative diapoeiticn (nARD"), where
only II one (1) month eusp'naion could h, lllpoaed. rhe disparity
bet.....n a one (1) month IUspens10n end eighteen (lB) I:lonth
llulPansion is abBurd. Even if. ARC was not applicable. had
. Petitioners been ccnvicted of driving ...bil. intcxicatood in
l>.nnsylvania their driVing privlleq.. "'ould hav. heen SUIp&ncllld tor
one (1) year, at lIlost, not ei'1hteen (18) l1ontha; Ii:ill, a
nonsensical arbitrary r&lult.
The constitUtion"l rj,ql1t to eqUal p.oteetion is violated
Ifhen a detond.nation ia baud lolely on place or locUion. it....
MaTq..t"t!t Mt!1IIOt'1o.1 HOB"t. v, 8orou9h Council Of !orouah of
A8Dinvall, 153 Pa, CIIIvlth. S9!!, 641 A.;!c1 1:70 (1994), EVen the
e1i.crotion of II dilltrict lIttorney to allo\l AR.D ill liUllj8C't: 'to the
requirement thllt the e1eciBion not be wholly, p~tently unrelated to
protac:Uon of sociuy or lihli/:ood of reh..bilitation.
comnonve..lth v, Korrow, 4J7 P.. Super. sa" 650 A.<Id 907 (1~94),
8DD..l deniod, 540 Pa. 648, 659 A.;!d '986 (1995). Accord1nqly, in
the in.tent mattex, we .maintain there is no rational ba.i. for a
conclusion that an out-of-state OUI conviction requires .uch hereh
punit.ive "civil" aanetione that would not be b,pond. had the
J.l
.ll~
~ta
t;r1IHd ;IJ AlJll!NJU(W:OJ 61:€t Q6, t'l//J) eos 'ON 3'11:
'.
".f.."--.b~
P12 0 0450 DATE PREP~; 09/25/97
M t U h-' ST~n O~ NIW "IR~
O O,-,,~ IC::,~ DtVISION O~ MOTOR VrHIC~IS
225 lAST STATI STRIIT
';.'.t.'~~ifbif.\.~~., ,'!t.~.~i1~;.~,,"".Y:'1:;1;;ril'l7'''r',k~~.. N2.r.r~:.~~.~~IR5IY 018515
~dpQ .... ., :lI().N'!\O.l!1;~i:JUSPENS[O~l%~~h
'''"''';,,'t~:'~ii~~N .,.,~..#..", ;s:H".....~.".-: ,:':;.~ .'t~:: ~',,'." ,....,'"x., .:~':. '/I;(;'{'J'><:'''''"'''''''I,.(j\.;w:-.: ,':,'~' ",'_~.'_:,<.;. _, "-;';'.';::, ,< J~>
IN....~I...,''_+Io.lkll~.......__~<<....I.............'''w.\<.olI........j~...,I\oM'''''...._........_,..
000931
HICHAEL S WILLIAMS
2978 ORCHARD LANE
HIDDLETOWN PA 17057-5113
1...11I,../11,..,'.1,1...1./.1....11...11..11,/...11../..1./.1
D.L. NUMBER: W4365 54482 03470
YOUR NEW JERSEY DRIVING
AS OF 09/02/97 FOR 180 DAYS .
HOTOR VEHICLE SERVICES CONF!RMS THE SUSPENSION OF YOUR NEW JERSEY DRIVING
PRIVILEGE BY THE FOLLOWING COURT BECAUSE YOU WERE CONVICTED OF THE
VIOLATION DESCRIBED BELOW;
PRIVILEGE IS SUSPENDED
DT: 07/29/97
CT NAME: EAST
STREET : 2 DE
CODE: P12 V 0450 DESCR: OPERATE UNDER INFLUENCE LIQ/DRUGS
HANOVER TWP MIJN CT CITY: EAST HANOVER ST: NJ ZIP: 07936
FOREST AVENUE
IF YOU HAVE NOT SURRENDERED YOUR CURRENT NEW JERSEY DRIVER LICENSE TO THE
ABOVE COURT, YOU MUST SURRENDER IT TO MOTOR VEHICLE SERVICES IMMEDIATELY.
YOU HAY NOT DRIVE UNTIL YOU RECEIVE WRITTEN NOTICE OF RESTORATION FROM
THE DIRECTOR.
TO HAVE YOUR DRIVING PRIVILEGE RESTORED, YOU MUST SERVE YOUR SUSPENSION
P~RIOD, PAY A $50 RESTORATION FEE, AND SATISFY THE REQUIREMENTS OF THE
INTOXICATED DRIVING PROGRAM (IDP) AND THE INTOXICATED DRIVER RESOURCE CENTER
(IDRC), INCLUDING IMMEDIATE PAYMENT OF A $100 IDP ADHINISTRATIVE FEE. THERE
WILL ALSO BE AM IDRC FEE. NEW JERSEY AND NEARBY PENNSYLVANIA RESIDENTS: lOP
WILl, NOTIFY YOU OF THE DATES AND LOCATION OF YOUR SCHEDULED ATTENDANCE AT AN
IDRC. OTHER OUT-OF-STATE RESIDENTS WILL RECEIVE A SEPARATE ADVISORY NOTICE.
(IMPORTANT - IF THIS CASE !S UNDER APPEAL, AND THE)
(LICENSE SUSPENSION HAS BEEN STAYED PENDING APPEAL)
(PLEASE CALL 609-292-7500 IMMEDIATELY TO HAVE YOUR)
(RECORDS REVIEWED AND CORRECTED IF NECESSARY. )
e, R.'_d~vtJ ~ . _
C. Richard Kamin. Director
.
.
.'
-
-
-
-
-
11II
-
-
.
-
-
-
-
-
MICHAEL S WILLIAMS
2978 ORCHARD LANE
MIDDLETOWN PA 17057-5113
D.L. W4365 54482 03470
-.......................... ............................ O't;ch -And R.tur" Thii p,-,t-.......................... -.. .. .............. 8:~S~; 1;~:.-7~~
INTOXICATED DRIVING PROGRAM AND RESTORATION FEES DUE: $150.00
RETURN THIS PART WITH YOUR CURRENT NEW JERSEY DRIVER LICENSE (IF YOU RAVE
NOT SURRENDERED YOUR LICENSE TO THE ABOVE COURT) AND YOUR $150 INTOXICATED
DRIVING PROGRAM ADMINISTRATION AND RESTORATION FEES CHECK OR MONEY ORDER,
MADE PAYABLE TO N.J. HOTOR VEHICLE SERVICES, USING TBE ENCLOSED ENVELOPE.
Vf/W~3bSS~~8203~70000S0000010000'72~SA<PfPRGRP1200~SO'72b722011~3
No. B
025968
Municipal Court 01 Avalon
3100 Oune Drive
Avolon. N,J, 06202
OFFICER'S COPY
-----;ni--I1iii'Y-iuMMo"Nlo- 'io- APPIrA"':;IFORf' lIH6 'c;ounr ril
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THI! UNrlASIGHID CfATI"U THAT
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~n,(,p~I~~Valon 1.Qc~pe Ml!Y__t~:~'~~_'~L~..I_~_l~.l.~._
.- "---AHOiiD~.aND fHfRi!:CoMNIT THI! FOlLOWINQ OFFENSE
. ,OHE CHARGe: PER COUPLAINn
TRAFFIC OFFIiNSES . (ch.ck on.) . TITLE 39:
1 n J.,l UnlelJl~lered ~ehlcle '0) 4 II~ ~~'~lll/)PN pJ~5UH) \
l;:>ll;:>1) Fdllufe 10 ohlM oJo'umenr~ --illr"l]~ l..ir~2~\~~'!.!!l-.____ '"
o l or ':_1 REG or ' IllS -i9i~:n:r:rf.i;j;Jf~ hJ IlJltI
lJll33 Unclurplales 11014.\44 FallwrJ 10 510p or Ilcld
j4) JI)6 MalnlellanCe 01 lalllps 111) I\.! FJIIlllfl 10 'n~,pecl
I~I J.76 11 Failure to weal sear~~n
161 4111 Failure 10 obser.e 511]0.11 (121 II " F ~ilUfl! 10 rllJj..1! 1l'p.111';
(131498 Speellln~. __ MPft In J. . MPli l<llle
IN EXCESS OF SP~EO LIMIT BY.:
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PENAL TV SCHEDULE ON REVERSE
PARKING OFFENSE
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TMI UHOVISIQH(1) FVIm<<" STArn THAT THlIRl AAI. JUSr AND RlASOftABU
GltOtJHOtTOMUlVl'OtATYOUCOUMlrTlDTHIAIOVI f ~.--...--.
Of'...... ""W.UFU TMcSCOW\.AM IN THIlS COOln /,I".,,~ p'~ I '~~'...,
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NOTICE TO APPEAR
'COURT ""j;,i;;-- I)a;--.---
DATE I ?
; r:1J.~?!\~~.I!lJ~Y..' P~~e~~ty ~~m(l(}1}
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CP01l1C 121l)4j
No, B
M'Jnlclpol Court 01 Av~lon
3100 Dune Drive
OFFICER'SCOPY Avolon, N,J. 06202
"You Allf 1I"'lfll'" nUMMONfl) TO "'PPOIl 'UI'OI1I!-Titla cOlhn'yo
ANtWI!H THill r.OMI'l "'INT CI1",IIOINll YOU WIOl HII' ()lIIl'I'NU lllHI'U'
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IN EXCESS OF SPEED I.IMIT BY:
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PENAL TV SCHEDULE ON REVERSE
PARKING OFFENSE
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OTHER TRAFFIC/PARKING OFF!:NSE (ollerlb.)
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'l1fUNDfMlQHlO 'UIlTH!II SfAR:) THA' fHl!Rl Alii MT A.NO RlAIOflI.8lI
\ '10UND$ TO IlLlIVI fH..., YOU COMMlfTlO Oil ~BOVI ~ ---r;:::---
(~'OtH AHO WlU, ml THIS COMPl.~INT IN THII COUIIT I,I.'-".'~ D.' t '/~' ..,
~YOUWnH1KATOm,Ns(, _____ _tL6___ /r~_ L
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..-IHQUIRfD ..~, D~n # I I J
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CP0111C (2194)
OL-3211 (9/95)
CERTIFlCA TION
.
DATE October 27,1997
I hereby certify that Rebecca L. Bickley, Director of the Bureau of Driver licensing of the
Pennsylvania Department of Transportation. is the legal custodian of the Driver License records of the
Pennsylvania Department of Transportation. As the Director of the aforesaid Bureau, she has legal
custody of the original or microfilm records which are reproduced In the attached certification.
IN TESTIMONY WHEREOF,I HAVE HEREUNTO SET MY HAND AND SEAL OF
THIS DEPARTMENT THE DAY AND YEAR AFORESAID.
I I... /' i')/~),,",,'
~ UY. I '"....)/..)-,,, ""'
/. </ .I/"; (r.....
B~AOLEY L. MAL ORY, SECRETARi' E>F T ANSPORTATION
I HEREBY CERTIFY THAT THE FOREGOING AND ANNEXED IS A FULL, TRUE AND
CORRECT CERTIFIED PHOTOSTATIC COPY OF:
1) Official Notice of suspension dated & mailed 09/04/97, effective 10/09/97; 2) Record of
Conviction Detail, Out of State Driver Violations Report received by the Department electronically
from the State of NEW JERSEY, operating under the influence of liquor or drugs, date of violation
06/18/97, and date of conviction 08/11/97. and 3) Driving Record, which appears in the file of the
defendant KAREN A. GNAZZO, operator's no. 19977706, date of birth 08/14/63, In the Bureau
of Driver Licensing, Harrisburg, Pennsylvania,
CERTIFIED TO as prescribed by Sections 6103 and 6109 of the Judicial Code, Act of July 9,
1976, P.L. 586, as amended, 42 Pa.C.S. ~~6103 and 6109.
IN TESTIMONY WHEREOF, I HAVE HEREUNTO SET MY HAND AND SEAL THE DAY AND YEAR
AFORESAID. rl)~.o \~
~ ""- ~. SEAL
REBECCA L. BICKLEY, DIRECT
BUREAU OF DRIVER LICENSING
COMMONWEALTH'S
EXHlBrr
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