Drunk Driving Defense Succeeds in More States

The new drunk driving defense has been approved by trial courts in three more states: Maryland, Nebraska and New Mexico.

This brings to 15 the number of states in which a court has approved the defense.

These courts say that where a driver had his license suspended after he failed a breath test, he can avoid a criminal trial because this would be "Double Jeopardy."

The defense can be raised in the 37 states which have "administrative license suspensions." But it can also be raised in all 50 states if the driver's license was suspended for refusing to take a test rather than for failing a test. (See 95 LWUSA 348.)

An extensive article discussing the double jeopardy theory appeared at 95 LWUSA 186; LWUSA On-Line search word Montrym.

Here's a look at the latest decisions:

A trial court in Omaha approved the defense in two cases even though it was rejected in March by the Nebraska Court of Appeals in the only appellate ruling on the issue since it began to be widely raised a few months ago. (State v. Young, 3 Neb. App. 539.)

The Nebraska Court of Appeals was created just a couple of years ago, and there is a dispute as to whether its decisions have any precedential value, according to the winning attorney in one of the Omaha cases, James Schaefer of Omaha.

Where only three of the court's nine justices decide a case, as happened in Young, there's even more doubt that a decision binds the trial courts, he says.

The Omaha court said it was not bound by the appellate ruling and "respectfully disagrees" with it.

The court said the Nebraska cases relied upon by the Court of Appeals have been effectively overruled by recent decisions by the U.S. Supreme Court, and that the Court of Appeals was wrong to believe that a statute intended to deter wrongdoing is remedial and can't be "punishment" for double jeopardy purposes.

Similar objections to the Court of Appeals opinion were registered by constitutional law experts interviewed by Lawyers Weekly USA. See 95 LWUSA 306.

Twelve cases were dismissed by two judges in Albuquerque. At least one of the cases involved a defendant whose license had been suspended for refusing to take a breath test, as opposed to failing a test.

The two judges said that if a driver's license is suspended, a subsequent criminal trial would be a second jeopardy because both actions would be:

(1) Punishment;

(2) Based on the same offense; and

(3) Imposed in a separate proceeding.

One of the judges, Roderick Kennedy, dismissed two cases. He said he expected his decision to be unpopular, but he wouldn't "sacrifice the law upon the altar of public opinion."

Kennedy said that a sanction can be "punishment" for double jeopardy purposes even it is only partly intended to deter or punish, and that the New Mexico suspension law is "punishment" because it is inconsistent with the purely non-punitive goal of removing dangerous drivers from the highway.

Specifically, a driver's suspension is shorter if he doesn't contest it, and a license can be suspended for 30 days even if the driver takes remedial steps such as enrolling in a DWI program, Kennedy noted.

Kennedy called the suspension statute "part of the social scientists' punishment scheme for addressing the drunk driving problem."

The other judge, Anna Martinez, dismissed 10 cases. She said the license suspension was "punishment" because similar suspensions are imposed in criminal DWI sentencing and a suspension can be lengthened by prior DWI convictions. She cited cases in which the New Mexico Supreme Court and Court of Appeals stated that the purpose of the suspension law is to deter and punish.

The license suspension and the criminal proceeding were based on the same offense because they "arose out of the same facts, circumstances, and arrest," Martinez said.

The Albuquerque district attorney has asked the New Mexico Supreme Court to vacate the dismissals ordered by Kennedy. The petition to the Supreme Court warns that if other judges adopt Kennedy's reasoning, "virtually every" drunk driving case in the state will be dismissed.

The opinions by Judge Kennedy are State v. Baca and State v. Holguin; the Holguin case involved a refusal to take a test. The opinion by Judge Martinez is State v. Chevere.

A court in Rockville dismissed a case based on the defense but didn't issue a written opinion.

The defense attorney in the case, Leonard Stamm of Greenbelt, Maryland, says the judge was persuaded by decisions from other courts approving the defense, copies of which he obtained from Lawyers Weekly USA.

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