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 Assistant 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 court erred in ruling her conviction for DUI, after 

her privilege to drive in Virginia had been suspended pursuant to the sixty-day suspension 

provision in Code § 46.2-391.2 for the same offense, 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 posture 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. 
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charged with DUI, second offense. Testing in connection 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 the General District Court of Chesterfield 

County, appellant requested that the administrative suspension of her privilege to drive be 

reduced to seven days because she had not been convicted of a previous DUI offense. The court, 

however, took no action on her request and set trial for March 24, 2006. 

 On March 2, 2006, appellant was tried in the General District Court of Clarke County on 

the 2005 DUI charge. She was convicted only of reckless driving. 

 On March 10, 2006, appellant filed a motion with the General District Court of 

Chesterfield County to have her privilege to drive in Virginia restored. With the agreement of 

the Commonwealth, the court restored appellant’s driving privilege on March 16, 2006. 

 On March 24, 2006, appellant was tried in the General District Court of Chesterfield 

County on the 2006 DUI charge. Rejecting appellant’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 County (trial court), 

appellant moved to have the 2006 DUI charge dismissed on double jeopardy grounds. She 

argued the administrative suspension of her privilege to drive in Virginia pursuant to the 

sixty-day suspension provision of Code § 46.2-391.2 constituted a criminal sanction. Thus, she 

 2

 At the time of the second arrest, appellant had a commercial driver’s license from 

Pennsylvania. 
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further argued, her subsequent criminal prosecution 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 convicted appellant of DUI, first offense. 

 This appeal followed. 

II. ANALYSIS 

 On appeal, appellant contends the trial court erroneously ruled that the administrative 

suspension of her privilege to drive in Virginia pursuant to the sixty-day suspension provision of 

Code § 46.2-391.2 did not constitute a criminal sanction for double jeopardy purposes. 

Appellant acknowledges that this Court 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 criminal, sanction and, thus, does not offend the 

constitutional prohibition against double jeopardy. She asserts, however, 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 constitutes 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 jeopardy as a result of the 

administrative suspension and the subsequent prosecution for the same DUI offense. 

Accordingly, she concludes, the trial court erred in refusing to dismiss the 2006 DUI charge on 

double jeopardy grounds. 

 In response, the Commonwealth contends 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 rationale and holding in Ingram are equally applicable to this 

case. Consistent with that rationale and holding, the Commonwealth argues, the administrative 

suspension of appellant’s privilege to drive in Virginia pursuant to the sixty-day suspension 
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provision of Code § 46.2-391.2 was a civil sanction and, thus, did not offend federal or state 

double jeopardy protections. Accordingly, the Commonwealth concludes, 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 United 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 for the ‘same offense’ violates both state and 

federal protections against double jeopardy.” Schwartz v. Commonwealth, 45 Va. App. 407, 

440, 611 S.E.2d 631, 647 (2005). However, the constitutional prohibition 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 affords 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 connection with a criminal 

charge does not bar the subsequent criminal prosecution for the same charge. Id. The 

dispositive question before us, then, is whether the administrative suspension 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 sanction, 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: 
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A court must first ask whether the legislature, “in establishing the 

penalizing mechanism, indicated either expressly or impliedly a 

preference for one label or another.” [United States v. Ward, 448 

U.S. 242, 248 (1980)]. Even in those cases where the legislature 

“has indicated an intention to establish a civil penalty, we have 

inquired further whether the statutory 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 criminal penalty,” Rex Trailer Co. 

v. United States, 350 U.S. 148, 154 (1956). 

Hudson, 522 U.S. at 99. Regarding the latter inquiry, the Supreme Court provided in Hudson the 

following “useful guideposts” for determining whether a civil sanction has been transformed into 

a criminal sanction: 

(1) “whether the sanction involves an affirmative disability or 

restraint”; (2) “whether it has historically 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 already 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 override legislative intent and transform what has 

been denominated a civil remedy into 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 Virginia was administratively suspended pursuant 

to Code § 46.2-391.2(A), which provides, in pertinent part, as follows: 

 If a breath test is taken pursuant to [Code] § 18.2-268.2 or 

any similar ordinance and . . . the results show a blood alcohol 

content of 0.08 percent or more 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 
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privilege to operate a motor vehicle 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 person 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 administratively suspended pursuant to the sixty-day 

suspension provision of Code § 46.2-391.2. 

 In Ingram, “the Commonwealth administratively suspended [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 the suspension was punitive and that his subsequent 

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

forth in Hudson, we held that “the legislature clearly intended for the administrative license 

suspension to be a civil sanction.” Id. at 765, 514 S.E.2d at 795. In reaching that decision, we 

observed that the purpose of the 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 legislative history behind the enactment of the 

suspension statute . . . provided that the legislature was ‘motivated by its desire to reduce 

alcohol-related crashes, fatalities, and injuries.’” Id. (quoting Tench, 21 Va. App. at 205, 462 

S.E.2d at 924). We concluded, therefore, that the 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 intoxicated 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 administrative suspension pursuant to Code 
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§ 46.2-391.2 was so punitive in effect that it was transformed 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 reasoning equally applies to the administrative 

suspension of a person’s privilege to drive pursuant to the sixty-day suspension provision of 

Code § 46.2-391.2. The fifty-three day increase in the length of the period of the suspension 

does not alter the result of our analysis. 

 For one thing, the longer period of the suspension has no direct bearing on the statute’s 

underlying purpose. Whether the suspension period 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 and 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 prescribed 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 protecting the public from harm is actually 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 the safety and welfare of the public than a person 

who has only been charged once, the enhanced civil sanction is consistent with the statute’s 

remedial purpose. We conclude, therefore, that the legislature intended the administrative 
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suspension of a person’s privilege to drive pursuant 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 constitutional muster under the Double Jeopardy 

provisions of the United States and Virginia Constitutions” because “the length of the suspension 

clearly exceeds any remedial purpose 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-state 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 fourth alterations in original) (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 administrative 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] administrative suspension does not 

involve an affirmative restraint, 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 
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or restraint, then quite obviously the temporary suspension of 

[one’s] driving privilege also cannot be so considered.” Lomas, 

955 P.2d at 681. 

Second, drivers’ license suspensions 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 which “‘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 suspended or revoked under the police 

power. . . . [It] is not a contract or property right in a constitutional 

sense.”). 

Third, the administrative license 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 finding 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 suspension 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 may “promote the traditional 

aims of punishment—retribution and deterrence,” Hudson, 522 

U.S. at 99, “this element is present 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 entertain 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)). 
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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-citational alterations, except first, in 

original). 

Thus, like in Ingram, “‘there simply is very little showing, to say nothing of the “clearest 

proof” required’” to override legislative intent and transform the remedial sixty-day 

administrative suspension prescribed by Code § 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 sixty-day administrative suspension of a person’s 

privilege to drive in Virginia pursuant to Code § 46.2-391.2 constitutes 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 whether a supposed civil sanction 

constitutes punishment for purposes of double jeopardy must ‘evaluate the statute on its face,’ 

rather than ‘the character of the actual sanctions imposed.’” Id. at 768, 514 S.E.2d at 796 

(quoting Hudson, 522 U.S. at 101). Indeed, “[a]ny deviation from proper procedure does not 

change the fundamental character of [a] sanction [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 Jeopardy . . . Clause[].” Selig v. Young, 

531 U.S. 250, 267 (2001). 
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Consequently, to the extent appellant claims 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 administrative suspension in a 

civil proceeding” during the “period of the suspension, [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 from the general district court on her request to reduce the 

administrative suspension, the court later terminated 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, and we affirm appellant’s conviction on that 

charge. 

Affirmed.