Will Drunk Driving Defense Be Rejected?

The drunk driving defense based on "Double Jeopardy" has been rejected by appeals courts in Idaho, Massachusetts, North Dakota, Vermont and Wisconsin. This means it has now been rejected by appellate courts in 19 states, while only one appellate court (in Ohio's 7th District) has approved it.

However, the federal courts haven't yet spoken on the issue, and experts are recommending that defense attorneys continue to file motions based on the defense to preserve the issue until they do.

Although the state appeals courts have overwhelmingly rejected the defense, very few federal courts have addressed it. Some lawyers believe that while state appellate judges -- especially elected judges -- are loathe to use the defense to help drunk drivers, the federal courts may take a different view of the constitutional issues.

One U.S. District Court has already approved the defense, and another one has praised it in dicta.

The consensus among drunk driving experts is that a motion should be filed unless both the state's highest court and the federal circuit court have ruled against it.

This is the only approach that protects the client, says Michael Holland, a defense attorney in Russell, Kansas.

The rationale of the defense is that if a driver's license was suspended because the driver failed or refused to take a breath test, a subsequent criminal trial would be "Double Jeopardy."

Filing a motion to preserve this issue shouldn't cost much, because the same brief can be used in every case, and if the purpose of the hearing is simply to make a record it "shouldn't take more than a couple of minutes," says Holland.

It may be necessary to present evidence about the license suspension, but this can usually be done with a stipulation, says William Head of Atlanta, a regent of the National College for DUI Defense.

"It's absolutely no work," says Donald Nichols of Minneapolis, editor of the Drinking/Driving Law Letter.

If a lawyer doesn't raise the defense and it's ultimately approved by higher courts, "You will have given something up in exchange for nothing," says John Zwerling of Alexandria, Virginia.

Lawyers might also want to take a case to federal court themselves -- although this can be daunting and expensive.

It's clear that state appellate judges "just aren't going to sign onto a decision that throws out DUI cases," says Head.

However, back in September a U.S. Magistrate Judge in Virginia approved the defense and dismissed drunk driving charges against two defendants who had been arrested while driving on a military base. (See 95 LWUSA 909; Search word for Lawyers Weekly On-Line: Snellman.)

In another case in Virginia, a defendant filed a petition for a writ of habeas corpus asking a U.S. District Court to prevent the state from prosecuting him. While the court declined to intervene before trial, it said the double jeopardy defense was "colorable, if not compelling" and "seems to merit relief." (See 95 LWUSA 869; Search word for Lawyers Weekly On-Line: Sims.)

Meanwhile, two other federal courts have rejected the defense. One was a U.S. District Court in Alabama, which rejected it in a case involving an arrest on a military base. (See 95 LWUSA 836; Search word for LWUSA on line: Schertz). The other was a federal court in Maine which denied a habeas corpus petition. (Thompson v. State of Maine Attorney General, No. 95-158-B (Aug. 28, 1995).)

If you file a habeas corpus petition in federal court, the court is likely to rule quickly, possibly within a couple of weeks, says Zwerling.

However, there are a number of drawbacks to this route, experts say:

* You probably have to wait until after the trial in state court. A federal court is unlikely to intervene before trial and prevent the trial from occurring, lawyers believe.

This is because the crux of the argument is that a license suspension and a criminal fine or sentence amount to "double punishment." This is technically different from arguing that a suspension hearing and a criminal trial amount to "double prosecution" -- which experts say is unlikely to work because a suspension hearing doesn't meet the requirements for a "prosecution."

Since the argument is that Double Jeopardy is triggered by the punishment -- not the trial -- a federal court probably wouldn't enjoin the trial. Rather, it would abstain until the trial is over to see whether punishment is actually imposed. That's what happened in the Virginia habeas case. (In the Maine case, the federal court reached the merits before trial, but that's because the prosecution didn't object, according to the defense attorney in the case, Wayne Foote of Bangor, Maine.)

* The defendant must be in 'custody.' This is a requirement for any federal habeas petition. This means that you can't go to federal court if the defendant's sentence consists only of a fine and a license suspension, says Larry Yackle, a law professor at Boston University.

However, a defendant is in custody if he is serving a jail sentence, on probation, on parole, or free on bail awaiting trial.

* You may have to go to your state Supreme Court first. A federal habeas petitioner must first exhaust his state remedies. In general, that means appealing to the state's highest court. A federal court might make an exception to this rule if the state Supreme Court has already rejected the defense in another case. But it might not.

This could be a big problem if the state trial court won't stay the defendant's sentence pending the appeal. However, if it refuses a stay, the federal court might be willing to intervene immediately.

* You may have to go to the U.S. Supreme Court. Even if a U.S. District Court rules in your favor, the state would almost certainly appeal to the federal circuit -- and if necessary, to the U.S. Supreme Court.

Such an appeal could be far too expensive for any one drunk driving defendant.

Of course, to keep costs down, defense attorneys might file habeas petitions on behalf of a number of defendants.

"This is an issue that affects every client I have," says Samuel McCloud of Shakopee, Minnesota. "Every one of my clients would benefit."

Another possibility is to file a petition for certiorari with the U.S. Supreme Court directly from a ruling by the state Supreme Court.

Leonard Stamm of Greenbelt, Maryland plans to file such a petition. Robert Chestney of Atlanta says he will file one too if the Georgia Supreme Court rejects the defense.

However, many lawyers say it's unlikely that the Supreme Court would grant such a petition.Without a split in the circuits, "Lightning would have to strike," says Yackle.

On the other hand, the Supreme Court's recent decisions involving civil penalties and double jeopardy have created a lot of confusion. "The Court will have to take a case at some point involving this issue," says Vanderbilt law professor Nancy King.

But King expects the Court to resolve the issue in a civil forfeiture case, not a drunk driving case. The appellate rulings in the drunk driving cases have nearly all gone the same way and "don't cry out for Supreme Court review" as much as the civil forfeiture cases, which "are a total mess," she says.

The new opinions from Idaho, Massachusetts, North Dakota, Vermont and Wisconsin all relied primarily on the theory that a license suspension is not "punishment" for double jeopardy purposes, but is intended as a remedial measure to protect the public by removing dangerous drivers from the road.

Several of the courts acknowledged that a suspension is partly punitive. But they said it still wasn't punishment because it couldn't "fairly be characterized as only a deterrent or as retribution" (quoting U.S. v. Halper, 490 U.S. 435 (1989)).

The Idaho court also said the suspension wasn't punishment as long as it had "a rational relationship to a legitimate remedial purpose."

The Massachusetts court issued two opinions, one of which involved a refusal to take a breath test rather than a test failure. The court said an additional reason for rejecting the defense in that case was that the refusal offense and the drunk driving offense weren't "the same offense" for double jeopardy purposes, because someone can be guilty of one without being guilty of the other.

In other developments, another Ohio appeals court rejected the defense, which means that the appeals courts in that state are now split 4-1 against the defense. And the New Mexico Supreme Court, which had previously rejected the defense without an opinion, issued a written explanation of its holding.

Meanwhile, two state trial courts in California accepted the defense. A court in Napa County dismissed 15 drunk driving cases based on it, according to one of the defense attorneys, Frank Worthington of Napa. Another court dismissed a case in Sonoma, according to Sonoma attorney Steve Mittleman.

Idaho Supreme Court. State v. Talavera, No. 22033. November 3, 1995. Lawyers Weekly USA No. 9907061) (12 pages). To order a copy of the opinion, call 800-933-5594.

Massachusetts Supreme Court. Luk v. Commonwealth, No. SJC-06847. November 27, 1995. Lawyers Weekly USA No. 9907062) (20 pages). To order a copy of the opinion, call 800-933-5594.

Massachusetts Supreme Court. Leduc v. Commonwealth, No. SJC-06819. November 27, 1995. Lawyers Weekly USA No. 9907063) (5 pages). To order a copy of the opinion, call 800-933-5594.

North Dakota Supreme Court. State v. Zimmerman, No. 950163. October 31, 1995. Lawyers Weekly USA No. 9907064) (18 pages). To order a copy of the opinion, call 800-933-5594.

Vermont Supreme Court. State v. Becker, No. 95-061. September 20, 1995. Lawyers Weekly USA No. 9907065) (2 pages). To order a copy of the opinion, call 800-933-5594.

Wisconsin Court of Appeals, District II. State v. McMaster, No. 95-1159-CR. November 8, 1995. Lawyers Weekly USA No. 9907066) (12 pages). To order a copy of the opinion, call 800-933-5594

Ohio Court of Appeals, 1st District. State v. Fitzgerald, No. C-950158. November 22, 1995. Lawyers Weekly USA No. 9907067) (6 pages). To order a copy of the opinion, call 800-933-5594.

New Mexico Supreme Court. State v. Baca, No. 22,904. October 18, 1995. Lawyers Weekly USA No. 9907068) (29 pages). To order a copy of the opinion, call 800-933-5594.

Napa County (California) Court. Moore v. Municipal Court of the State of California for the County of Napa, No. C-73569. November 6, 1995. No written opinion.

Sonoma (California) Municipal Court. People v. McCammon, No. TCR-270828. November 14, 1995. No written opinion.

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