COURT OF APPEALS OF VIRGINIA

Present: Judges Humphreys, Clements and McClanahan Argued at Richmond, Virginia

JUDITH ANN DEPSKY OPINION BY v. Record No. 1546-06-2 JUDGE JEAN HARRISON CLEMENTS OCTOBER 9, 2007 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY Herbert C. Gill, Jr., Judge David D. Lentz for appellant. Kathleen B. Martin, Senior Assi stant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Judith Ann Depsky (appellant) was convicted in a bench trial in the Circuit Court of Chesterfield County (trial court) of driving under the influence (DUI), in violation of Code § 18.2-266. On appeal, she contends the trial cour t erred in ruling her conviction for DUI, after her privilege to drive in Virginia had been suspended pursuant to th e sixty-day suspension provision in Code § 46.2-391.2 for the same of fense, did not violate the constitutional prohibition against double jeopardy. Finding no error, we affirm the trial court’s judgment and appellant’s conviction.

I. BACKGROUND The relevant facts and procedural postu re of this case are not in dispute. 1 On November 13, 2005, appellant was arrested in Clarke County and charged with DUI, first offense. Prior to trial on that charge, appellant was arrested in Chesterfield County on February 1, 2006, and

1 A written statement of facts was filed in lieu of a transcript, pursuant to Rule 5A:8.- 2 - charged with DUI, second offense. Testing in c onnection with the second arrest revealed that appellant had a blood alcohol concentration of 0.16%. Upon issuance of a warrant by the magistrate for DUI, second offense, appellant was served with notice that her privilege to drive in Virginia was administratively suspended for sixty days pursuant to Code § 46.2-391.2, effective immediately. 2 At a February 10, 2006 scheduling hearing in th e General District Court of Chesterfield County, appellant requested that the administrativ e suspension of her pr ivilege to drive be reduced to seven days because she had not been c onvicted of a previous DUI offense. The court, however, took no action on her reques t and set trial for March 24, 2006. On March 2, 2006, appellant was tried in the General District Cour t of Clarke County on the 2005 DUI charge. She was convi cted only of reckless driving. On March 10, 2006, appellant filed a moti on with the General District Court of Chesterfield County to have her privilege to driv e in Virginia restored. With the agreement of the Commonwealth, the court restored appe llant’s driving privilege on March 16, 2006. On March 24, 2006, appellant was tried in th e General District C ourt of Chesterfield County on the 2006 DUI charge. Rejecting appella nt’s claim that the prior administrative suspension of her privilege to drive in Virginia constituted a criminal sanction for purposes of double jeopardy, the court convicted her of DUI, first offense. After appealing her conviction to the Circuit Court of Chesterfield C ounty (trial court), appellant moved to have the 2006 DUI charge dismissed on double jeopardy grounds. She argued the administrative suspensi on of her privilege to drive in Virginia pursuant to the sixty-day suspension provision of Code § 46.2-39 1.2 constituted a criminal sanction. Thus, she

2 At the time of the second arrest, appella nt had a commercial driver’s license from Pennsylvania.- 3 - further argued, her subsequent criminal prosec ution for the same offense was barred by the double jeopardy prohibitions of the United States and Virginia Constitutions. The trial court denied the motion and subsequently convi cted appellant of DUI, first offense. This appeal followed.

II. ANALYSIS On appeal, appellant contends the trial c ourt erroneously ruled th at the administrative suspension of her privilege to dr ive in Virginia pursuant to th e sixty-day suspension provision of Code § 46.2-391.2 did not constitute a crimin al sanction for double jeopardy purposes. Appellant acknowledges that this Co urt held in Ingram v. Commonwealth , 29 Va. App. 759, 514 S.E.2d 792 (1999), that the administrative suspension of a person’s driving privilege pursuant to Code § 46.2-391.2 is a civil, rather than crim inal, sanction and, thus, does not offend the constitutional prohibit ion against double jeopar dy. She asserts, how ever, that, unlike the statute’s seven-day-suspension provision applied in Ingram , the more recently enacted sixty-day suspension provision of Code § 46.2-391.2 applied in this case c onstitutes a criminal sanction because of its excessive length. As such, she argues, it offends federal and state double jeopardy protections since it permits a defendant to be twice placed in jeopar dy as a result of the administrative suspension and the subsequent prosecution for the same DUI offense. Accordingly, she concludes, the trial court e rred in refusing to dismiss the 2006 DUI charge on double jeopardy grounds. In response, the Commonwealth conte nds that, even though the length of the administrative suspension at issue in this case is longer than the length of the suspension at issue in Ingram , this Court’s underlying rati onale and holding in Ingram are equally applicable to this

case. Consistent with that rationale and holding, the Commonw ealth argues, the administrative suspension of appellant’s privilege to drive in Virginia pursuant to the sixty-day suspension- 4 - provision of Code § 46.2-391.2 was a civil sanction and, thus, did not offend federal or state double jeopardy protections. Accord ingly, the Commonwealth conclu des, the trial court did not err in denying appellant’s motion to dismiss the 2006 DUI charge on double jeopardy grounds. We agree with the Commonwealth. As relevant here, “[t]he double jeopardy clauses of the Un ited States and the Virginia constitutions . . . protect against . . . multiple punishments for the same offense.” Commonwealth v. Hudgins , 269 Va. 602, 604-05, 611 S.E.2d 362, 364 (2005). “Thus, subjecting a defendant to cumulative punishments fo r the ‘same offense’ violates both state and federal protections against double je opardy.” Schwartz v. Commonwealth , 45 Va. App. 407, 440, 611 S.E.2d 631, 647 (2005). However, the cons titutional prohibit ion against double jeopardy “‘protects only against multiple criminal punishments for the same offense . . . in successive proceedings.’” Dorsey v. Commonwealth , 32 Va. App. 154, 161, 526 S.E.2d 787, 790 (2000) (quoting Hudson v. United States , 522 U.S. 93, 99 (1997)); see also Stephens v.

Commonwealth , 263 Va. 58, 62, 557 S.E.2d 227, 230 (2002) (“Virginia’s constitutional guarantee against double jeopardy af fords a defendant the same guarantees as the federal Double Jeopardy Clause.”). Accordingly, the imposition of a sanction that is civil, rather than criminal, in nature does not implicate double jeopardy principles. See Dorsey , 32 Va. App. at 165, 526 S.E.2d at 792. In other words, the imposition of civil sanctions in conne ction with a criminal charge does not bar the subse quent criminal prosecution for the same charge. Id. The dispositive question before us, then, is whet her the administrative su spension of a person’s privilege to drive in Virginia pursuant to the sixty-day suspension provision of Code § 46.2-391.2 constitutes a criminal sa nction, as appellant asserts.

In Hudson , the United States Supreme Court set forth the current two-part test to be used to determine whether a particular sanction is civil or criminal:- 5 - A court must first ask whether the legislature, “in establishing the penalizing mechanism, indicated ei ther expressly or impliedly a preference for one label or anot her.” [United States v. Ward , 448 U.S. 242, 248 (1980)]. Even in t hose cases where the legislature “has indicated an intention to es tablish a civil penalty, we have inquired further whether the statut ory scheme was so punitive in purpose or effect,” id. at 248-49, as to “transform what was clearly intended as a civil remedy into a cr iminal penalty,” Rex Trailer Co. v. United States , 350 U.S. 148, 154 (1956).

Hudson , 522 U.S. at 99. Regarding the latter in quiry, the Supreme Court provided in Hudson the following “useful guideposts” for determining whet her a civil sanction has been transformed into

a criminal sanction: (1) “whether the sanction involves an affirmative disability or restraint”; (2) “whether it has hi storically been regarded as a punishment”; (3) “whether it comes into play only on a finding of scienter ”; (4) “whether its operation will promote the traditional aims of punishment—retribution or deterrence”; (5) “whether the behavior to which it applies is al ready a crime”; (6) “whether an alternative purpose to which it may rationally be connected is assignable for it”; and (7) “whether it appears excessive in relation to the alternative purpose assigned.”

Id. at 99-100 (quoting Kennedy v. Mendoza-Martinez , 372 U.S. 144, 168-69 (1963)). “As the Court emphasized, however, ‘these factors must be considered in relation to the statute on its face, and only the clearest proof will suffice to ove rride legislative intent and transform what has been denominated a civil remedy in to a criminal penalty.’” Dorsey , 32 Va. App. at 162, 526 S.E.2d at 791 (quoting Hudson , 522 U.S. at 100). Here, appellant’s privilege to drive in Vi rginia was administratively suspended pursuant to Code § 46.2-391.2(A), which provides, in pertinent part, as follows: If a breath test is taken pu rsuant to [Code] § 18.2-268.2 or any similar ordinance and . . . the results show a blood alcohol content of 0.08 percent or mo re by weight by volume or 0.08 grams or more per 210 liters of breath . . . and . . . upon issuance of a warrant by the magistrate, for a violation of . . . [Code] § 18.2-266 . . . , the person’s license shall be suspended immediately or in the case of . . . a person whose driver’s license is from a jurisdiction other than the Commonwealth, such person’s- 6 - privilege to operate a motor vehi cle in the Commonwealth shall be suspended immediately. The period of suspension of the person’s license or privilege to drive shall be seven days, unless the . . . warrant issued charges the pers on with a second or subsequent offense. If the person is charged with a second offense the suspension shall be for 60 days. Because the 2006 warrant issued by the magistrate charged appellant with a second DUI offense, her privilege to drive in Virginia was admini stratively suspended pursuant to the sixty-day suspension provision of Code § 46.2-391.2. In Ingram , “the Commonwealth administratively su spended [Ingram’s] operator’s license for seven days pursuant to Code § 46.2-391.2.” 29 Va. App. at 761, 514 S.E.2d at 793. On appeal to this Court, Ingram argued “that th e suspension was punitive and that his subsequent

DUI conviction violated the D ouble Jeopardy Clause.” Id. Applying the first part of the test set

forth in Hudson , we held that “the legi slature clearly intended for the administrative license suspension to be a ci vil sanction.” Id. at 765, 514 S.E.2d at 795. In reaching that decision, we observed that the purpose of th e administrative suspension was “‘not to punish the offender but to remove from the highways an operator who is a potential danger to other users.’” Id. at 763, 514 S.E.2d at 794 (quoting Tench v. Commonwealth , 21 Va. App. 200, 205, 462 S.E.2d 922, 924 (1995)). We further observed that “the legi slative history behind the enactment of the suspension statute . . . provided that the legisl ature was ‘motivated by its desire to reduce alcohol-related crashes, fatali ties, and injuries.’” Id. (quoting Tench , 21 Va. App. at 205, 462 S.E.2d at 924). We concluded, therefore, that th e legislature’s manifest intent in enacting the administrative suspension provision of Code § 46.2-391.2 was to establish “‘a remedial sanction [whose] purpose is to protect the public from in toxicated drivers and to reduce alcohol-related

accidents.’” Id. (quoting Tench , 21 Va. App. at 205, 462 S.E.2d at 924). We then turned in Ingram to the second prong of the test set forth in Hudson , namely, the issue whether the remedial seven-day ad ministrative suspension pursuant to Code- 7 - § 46.2-391.2 was so punitive in effect that it was tran sformed into a criminal sanction. Expressly applying each of the seven factors outlined in Hudson , we held that the administrative suspension was “not so punitive as to transform ‘a civil remedy into a criminal penalty.’” Id. at 765, 514 S.E.2d at 795. Although our analysis in Ingram dealt solely with the administrative suspension of a person’s privilege to drive in Virginia pursuant to the seven-day-suspension provision of Code § 46.2-391.2, we conclude that the same reasoni ng equally applies to the administrative suspension of a person’s privilege to drive pursu ant to the sixty-day suspension provision of Code § 46.2-391.2. The fifty-three day increase in the length of the peri od of the suspension does not alter the result of our analysis. For one thing, the longer period of the suspen sion has no direct bearing on the statute’s underlying purpose. Whether the suspension peri od is seven or sixty days, the administrative suspension of a person’s privilege to drive in Virginia pursuant to Code § 46.2-391.2 is intended to remove dangerous drivers from the highways a nd thus protect the safety and welfare of other

users. See Brame v. Commonwealth , 252 Va. 122, 133, 476 S.E.2d 177, 183 (1996) (holding that the administrative suspension prescrib ed by Code § 46.2-391.2 has a “clear, overriding remedial purpose”); Tench , 21 Va. App. at 205, 462 S.E.2d at 924 (“We hold that automatic license suspension under Code § 46.2-391.2 is a remedial sanction because its purpose is to protect the public from intoxicated drivers and to reduce alcohol-related accidents.”). Indeed, that remedial purpose of protecti ng the public from harm is actual ly better served by the longer sixty-day suspension period. Moreover, because a person charged with a second DUI offense presumably poses a greater potential risk to th e safety and welfare of the public than a person who has only been charged once, the enhanced ci vil sanction is consistent with the statute’s remedial purpose. We conclude, therefore, th at the legislature intended the administrative- 8 - suspension of a person’s privilege to drive pursu ant to the sixty-day suspension provision of Code § 46.2-391.2 to be a civil, rather than criminal, sanction. Likewise, notwithstanding appellant’s claim to the contrary, we conclude the increased suspension period is not so punitive in effect as to transform a remedial, civil sanction into a criminal sanction. Focusing primarily on the seventh Hudson factor, appellant argues the sixty-day suspension period is “too long to pass c onstitutional muster under the Double Jeopardy provisions of the United States and Virginia C onstitutions” because “the length of the suspension clearly exceeds any remedial pu rpose envisioned by the General Assembly.” However, as we specifically noted in Ingram , “the length of the period necessary to [accomplish the remedial purpose] is a matter within the sound discretion of the General Assembly,” and “it can hardly be said the discretion has been abused in light of the fact that Virginia’s [suspension] period is shorter than . . . the periods considered [and upheld for double jeopardy purposes] in . . . out-of-st ate cases . . . the majority [of which] have suspension periods of ninety days or more.” 29 Va. App. at 767, 514 S.E.2d at 796 (first and f ourth alterations in or iginal) (quoting Brame , 252 Va. at 133, 476 S.E.2d at 183) (citing State v. Lomas , 955 P.2d 678, 681 (Nev. 1998) (holding that a ninety-day-minimum administrativ e suspension is not excessive) and Powers v.

Commonwealth , 694 N.E.2d 324, 326, 328-29 (Mass. 1998) (upholding an indefinite administrative suspension)). Accordingly, we cannot say that Code § 46.2-391.2’s sixty-day suspension period is excessive relative to the statute’s remedial purpose. Our consideration in Ingram of the six other Hudson factors is similarly applicable to the statute’s sixty-day suspension period: First, the [sixty-day] admi nistrative suspension does not involve an affirmative restrain t, for it is “certainly nothing approaching the ‘infamous punishment’ of imprisonment.” Hudson , 522 U.S. at 104 (quoting Flemming v. Nestor , 363 U.S. 603, 617 (1960)). “If occupational debarment from the banking industry [in Hudson ] cannot be considered an affirmative disability- 9 - or restraint, then quite obvious ly the temporary suspension of [one’s] driving privilege also ca nnot be so considered.” Lomas , 955 P.2d at 681. Second, drivers’ license suspen sions historically have not been considered punishment in Virginia. See, e.g. , Brame , 252 Va. at 130-31, 476 S.E.2d at 181-82. The “‘revocation of a privilege voluntarily granted’” is an act whic h “‘is characteristically free of the punitive criminal element.’” Hudson , 522 U.S. at 104 (quoting Helvering v. Mitchell , 303 U.S. 391, 399 & n.2 (1938)); see also Commonwealth v. Ellett , 174 Va. 403, 414, 4 S.E.2d 762, 767 (1939) (“The operation of a motor vehicle . . . is a conditional privilege, which may be suspe nded or revoked under the police power. . . . [It] is not a contract or property right in a constitutional sense.”). Third, the administrative licen se suspension does not come into play “only on a finding of scienter ,” although the portion of the statute providing for suspension upon refusal to submit to testing may involve a find ing of scienter. See Code § 46.2-391.2; see also [State v.] Price , 510 S.E.2d [215,] 219 [(S.C. 1998)] (under statute providing for suspensi on only for refusal to take test, noting that “although the sanction . . . does come into play only on a finding of scienter, . . . no one of the factors alone is dispositive”). Fourth, although the statute ma y “promote the traditional aims of punishment—retribut ion and deterrence,” Hudson , 522 U.S. at 99, “this element is pres ent in any loss of license or privilege and is not the primary focus of the statutory scheme,” State v. Strong , 605 A.2d 510, 513 (Vt. 1992) (decided under [United States v.] Halper [, 490 U.S. 435 (1989)]), cited with approval in Brame , 252 Va. at 131-32, 476 S.E.2d at 182-83. Further, “although deterrence is a traditional goal of criminal punishment, . . . deterrence also may serve civil goals,” such as “deterring drivers who entertai n the idea of driving while intoxicated and . . . discouraging drivers whose licenses have been revoked from engaging in similar misconduct in the future.” Lomas , 955 P.2d at 682. Fifth, although the behavior to which the administrative license suspension applies is already a crime, “this fact is insufficient to render the [sanction] criminally punitive, particularly in the double jeopardy context.” Hudson , 522 U.S. at 105; see United States v. Ursery , 518 U.S. 267, 292 (1996) (“It is well settled that ‘[a legislature] may impose both a criminal and a civil sanction in respect to the same act or omission.’” (quoting Helvering , 303 U.S. at 399)).- 10 - Sixth, the administrative license suspension statute is rationally connected to a purpose other than criminal punishment, for it furthers the government’s remedial goal of maintaining safety on public roads. See Brame , 252 Va. at 133, 476 S.E.2d at 183; Tench , 21 Va. App. at 205, 462 S.E.2d at 924. Ingram , 29 Va. App. at 765-67, 514 S.E.2d at 795-96 (non-ci tational alterations, except first, in original). Thus, like in Ingram , “‘there simply is very little show ing, to say nothing of the “clearest proof” required’” to override legislative inte nt and transform the remedial sixty-day administrative suspension prescribed by C ode § 46.2-391.2 into a criminal sanction. Id. at 767, 514 S.E.2d at 796 (quoting Hudson , 522 U.S. at 105). We hold, therefore, that, notwithstanding any incidental punitive effect it may have, the si xty-day administrative suspension of a person’s privilege to drive in Virginia pursuant to Code § 46.2-391.2 consti tutes a civil sanction and, thus, does not offend the constitutional prohibition against double jeopardy. Appellant further contends Code § 46.2- 391.2’s sixty-day suspension provision was punitive as applied to her in violation of her right not to be placed in jeopardy twice for the same

offense because she had not been convicted of a previous DUI offense. However, “as the United States Supreme Court noted in Hudson , a court determining whethe r a supposed civil sanction constitutes punishment for purpos es of double jeopardy must ‘evalu ate the statute on its face,’

rather than ‘the character of th e actual sanctions imposed.’” Id. at 768, 514 S.E.2d at 796 (quoting Hudson , 522 U.S. at 101). Indeed, “[a]ny devi ation from proper procedure does not change the fundamental character of [a] sanc tion [that] is civil and remedial.” Id. at 768, 514 S.E.2d at 797. Moreover, a statutory scheme, “found to be civil, cannot be deemed punitive ‘as applied’ to a single individual in violation of the Double Jeopar dy . . . Clause[].” Selig v. Young , 531 U.S. 250, 267 (2001).- 11 - Consequently, to the extent appellant clai ms the sixty-day suspension provision was improperly applied to her, her “remedy was to challenge the suspension as provided in the statute” during the suspension period. Ingram , 29 Va. App. at 768, 514 S.E.2d at 797; see Easter

v. Commonwealth , 31 Va. App. 714, 718-19, 525 S.E.2d 592, 594 (2000) (noting that Code § 46.2-391.2(C) “allows the accused to immediately challenge the administ rative suspension in a civil proceeding” during the “period of the su spension, [and] does not limit the permissible grounds of review”). Although appellant apparently chose to dispense with that remedy when she failed to obtain a ruling fr om the general district cour t on her request to reduce the administrative suspension, the court later termin ated the suspension and restored appellant’s privilege to drive in Virginia. For these reasons, we conclude that appellant’s subsequent conviction for DUI did not violate her double jeopardy rights.

III. CONCLUSION Accordingly, we affirm the trial court’s decision denying appellant’s motion to dismiss the 2006 DUI charge on double jeopardy grounds, a nd we affirm appellant’s conviction on that charge.

Affirmed.