COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judge Annunziata and 

 Senior Judge Duff 

Argued at Alexandria, Virginia 

CLARENCE SCOTT LEGG 

v. Record No. 0544-95-4 MEMORANDUM OPINION* BY 

 CHIEF JUDGE NORMAN K. MOON 

COMMONWEALTH OF VIRGINIA FEBRUARY 27, 1996 

FROM THE CIRCUIT COURT OF FAUQUIER COUNTY 

William Shore Robertson, Judge 

 Jud A. Fischel (Nicholas R. VanBuskirk; 

Jud A. Fischel, P.C., on brief), for 

appellant. 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 

 Michael T. Judge, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 Clarence Scott Legg appeals his adjudication as an habitual 

offender under Code § 46.2-351. He claims that this adjudication 

placed him in jeopardy twice for the same offense in violation of 

the United States Constitution. We affirm the judgment of the 

circuit court. 

 On June 23, 1994, Legg was certified as an habitual offender 

by the Virginia Department of Motor Vehicles. An information 

charging Legg with being an habitual offender was filed in the 

circuit court on June 30, 1994. On January 9, 1995, Legg moved 

to dismiss the information, alleging that the Virginia habitual 

offender statute violated the double jeopardy clause of the 

Constitution because it subjected him to successive punishments 
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for the same offense. On February 13, the court denied the 

motion to dismiss and adjudged Legg to be an habitual offender 

under Code § 46.2-351. Accordingly, Legg was ordered to 

surrender all licenses and permits to operate a vehicle on the 

highways of the Commonwealth. 

 The double jeopardy clause provides three separate 

protections: protection against a second prosecution for the 

same offense after acquittal, a second prosecution for the same 

offense after conviction, and multiple punishments for the same 

offense. Brown v. Ohio, 432 U.S. 161, 165 (1977). Legg claims 

that to adjudge him an habitual offender imposes a second 

punishment for the offenses underlying that adjudication. He 

thus seeks to invoke the protection against multiple punishments 

for the same offense. 

 In this case, the double jeopardy claim arises not from two 

successive criminal prosecutions, but from several criminal 

prosecutions followed by a civil habitual offender proceeding. 

See Bouldin v. Commonwealth, 4 Va. App. 166, 170, 355 S.E.2d 352, 

355 (1987) (habitual offender proceedings are civil in nature.) 

This would constitute double jeopardy only if the license 

revocation imposed in the civil proceeding constitutes 

punishment, and if the license revocation and the criminal 

sanctions occurred in separate proceedings. Department of 

Revenue of Montana v. Kurth Ranch, 511 U.S. , 114 S. Ct. 1937, 

1945 (1994); United States v. Halper, 490 U.S. 435, 446, 450 

(1989). Because we hold that the license revocation resulting 
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from the habitual offender adjudication does not constitute 

punishment, we need not consider whether the proceedings were 

separate, although we note that the Commonwealth has apparently 

conceded this issue. 

 A civil penalty constitutes punishment for purposes of 

double jeopardy to the extent that it may not be fairly 

characterized as remedial, but only as a deterrent or 

retribution. Halper v. United States, 490 U.S. 435, 448-449 

(1989); holding restated in Kurth Ranch, 511 U.S. at , 114 

S. Ct. at 1945; followed in Tench v. Commonwealth, 21 Va. App. 

200, 205, 462 S.E.2d 922, 924 (1995). In Huffman v. 

Commonwealth, 210 Va. 530, 172 S.E.2d 788 (1970), the Supreme 

Court held that the purpose of revoking the habitual offender's 

license "is not for the punishment of the offender, but for the 

protection of the public in removing from the highways a 

dangerous driver." Id. at 532, 172 S.E.2d at 789. In Tench, we 

held that protection of the public from dangerous drivers is a 

remedial purpose that does not constitute punishment for purposes 

of double jeopardy. Tench, 21 Va. App. at 205-206, 462 S.E.2d at 

924. The same is true here.1

 Legg argues that in Austin v. United States, 509 U.S. , 

113 S. Ct. 2801 (1993), the Supreme Court established that a 

 

 1 Legg argues that adjudication as an habitual offender is 

punitive in his case because the offenses for which he was 

certified relate to his failure to prove financial 

responsibility, not to instances of "dangerous" driving. Legg 

failed to raise this argument below and it is therefore barred 

under Rule 5A:18. 
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civil sanction constitutes punishment if it has any deterrent or 

punitive effect whatsoever, even if it also serves remedial 

goals. In Austin, the Supreme Court held that the Eighth 

Amendment's excessive fines clause applies to in rem forfeiture 

proceedings. The Supreme Court concluded that property 

forfeitures have historically been regarded as punitive, even 

though they may also serve a remedial purpose. 

 As we explained in Tench, Austin is not a double jeopardy 

case and does not purport to modify the Court's holding in Halper

that a civil sanction constitutes punishment if it is not 

remedial, but only a deterrent or retribution. The habitual 

offender statute has a remedial purpose, and therefore license 

revocation under that statute does not constitute an additional 

punishment for the same offense in violation of the double 

jeopardy clause. 

 For these reasons, the judgment of the circuit court is 

affirmed. 

 Affirmed.