COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Willis and Elder 

Argued at Richmond, Virginia 

ALFRED MCKINLEY JONES 

 OPINION BY 

v. Record No. 1896-95-3 JUDGE LARRY G. ELDER 

 SEPTEMBER 10, 1996 

CITY OF LYNCHBURG 

 FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG 

Richard S. Miller, Judge 

 James B. Feinman (James B. Feinman & 

Associates, on brief), for appellant. 

 H. Elizabeth Shaffer, Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellee. 

 Alfred McKinley Jones (appellant) appeals his conviction for 

driving with a prohibited blood alcohol level, in violation of 

Lynchburg Code § 25-162. Appellant contends that the trial court 

erred in failing to dismiss the drunk driving charge as barred on 

double jeopardy and collateral estoppel grounds. Because the 

trial court did not err, we affirm appellant's conviction. 

 I. 

 FACTS 

 On April 8, 1995, a vehicle driven by appellant nearly 

struck another vehicle. Officer P. K. Redd of the Lynchburg 

Police Department arrived at the scene shortly thereafter. 

Appellant failed three field sobriety tests, and breathalyzer 

test results indicated that appellant's blood alcohol level was 

.20 percent. 
 2 

 Pursuant to Code § 46.2-391.2, upon appellant's arrest, his 

driver's license was suspended administratively for seven days. 

On April 12, 1995, appellant filed a motion for review of his 

administrative suspension. The Lynchburg General District Court 

held a hearing on the matter the same day, at which the 

Commonwealth chose not to appear. No police reports or other 

evidence on the Commonwealth's behalf were offered. After 

hearing appellant's testimony, the court rescinded the license 

suspension, finding that the police lacked probable cause to 

arrest appellant. 

 Despite the general district court's ruling that no probable 

cause existed for appellant's arrest, the City of Lynchburg 

prosecuted appellant in the general district court pursuant to 

Lynchburg Code § 25-162, which prohibits drunk driving. On May 

2, 1995, appellant filed a motion to dismiss on grounds of 

acquittal, based on the ruling that there was no probable cause 

for his arrest. Appellant argued that the Commonwealth was 

collaterally estopped from proceeding on the related drunk 

driving charge and that the prosecution of the criminal charge 

was barred on double jeopardy grounds. The general district 

court overruled the motion and on May 3, 1995, convicted 

appellant of drunk driving. 

 After appealing his conviction to the circuit court, 

appellant again filed a motion to dismiss on grounds of 

acquittal. On August 8, 1995, the circuit court denied 
 3 

appellant's motion. The circuit court ruled that pursuant to 

Code § 46.2-391.2(C) the prior determination of no probable cause 

did not constitute a binding or final judgment upon which 

collateral estoppel could be based.1

 After appellant stipulated 

to the Commonwealth's evidence, the circuit court found appellant 

guilty of drunk driving. 

 II. 

DOUBLE JEOPARDY & COLLATERAL ESTOPPEL 

 Appellant argues that his prosecution for drunk driving was 

constitutionally impermissible because the administrative license 

suspension proceeding was a criminal proceeding, and the double 

jeopardy protection of the Fifth Amendment of the United States 

Constitution barred a second prosecution. We disagree. 

 In Tench v. Commonwealth, 21 Va. App. 200, 204, 462 S.E.2d 

922, 923-24 (1995)(en banc), we held that an administrative 

license suspension is a civil penalty and does not constitute 

"punishment" for double jeopardy purposes. See United States v. 

Halper, 490 U.S. 435 (1989). Here, pursuant to Code 

§ 46.2-391.2(C), appellant timely requested the general district 

court to review the license suspension, and a hearing was held on 

 

 1 This statutory section reads, in part: 

 The court's findings [with regard to the 

review of the license suspension] are without 

prejudice to the person contesting the 

suspension or to any other potential party as 

to any proceedings, civil or criminal, and 

shall not be evidence in any proceedings, 

civil or criminal. 
 4 

the matter four days after the suspension. It follows logically 

from Tench that the district court's license suspension hearing 

was a civil proceeding. See, e.g., State v. Young, 544 N.W.2d 

808, 811 (Neb. 1996)(holding that an administrative license 

suspension hearing is civil); State v. Cassady, 662 A.2d 955, 958 

(N.H. 1995)(same); Walton v. State, 831 S.W.2d 488, 490 (Tex. Ct. 

App. 1992)(same); People v. Moore, 561 N.E.2d 648, 650 (Ill. 

1990)(same). Therefore, because the license suspension 

proceeding "did not impose punishment within the meaning of the 

double jeopardy clause, [appellant] was not twice placed in 

jeopardy in violation of the United States Constitution when 

prosecuted for driving while intoxicated." Tench, 21 Va. App. at 

208, 462 S.E.2d at 925. 

 "The doctrine of collateral estoppel in criminal cases . . . 

means 'that when an issue of ultimate fact has once been 

determined by a valid and final judgment, that issue cannot again 

be litigated between the same parties in any future lawsuit.'" 

Rogers v. Commonwealth, 5 Va. App. 337, 341, 362 S.E.2d 752, 754 

(1987)(quoting Ashe v. Swenson, 397 U.S. 436, 443 (1970)). "The 

party seeking the protection of collateral estoppel carries the 

burden of showing that the verdict in the prior action 

necessarily decided the precise issue he seeks to now preclude." 

Rogers, 5 Va. App. at 341, 362 S.E.2d at 754. "[T]he doctrine 

of collateral estoppel is a constitutional requirement embodied 

in the fifth amendment protection against double jeopardy and is 
 5 

applicable to the states through the fourteenth amendment to the 

United States Constitution." Simon v. Commonwealth, 220 Va. 412, 

415, 258 S.E.2d 567, 569 (1979). 

 Because the license suspension hearing was a civil 

proceeding, "[a]pplication of the doctrine of collateral estoppel 

is not constitutionally mandated." Cassady, 662 A.2d at 958 

(holding that collateral estoppel did not prevent relitigation in 

a criminal proceeding of issues of fact previously decided in 

defendant's favor in an administrative hearing); Young, 544 

N.W.2d at 812 (same); State v. Arnold, 593 So. 2d 1293 (La. Ct. 

App. 1991)(same), writ denied, 594 So. 2d 1305 (La. 1992); Moore, 

561 N.E.2d at 652. "Because the 'issues of ultimate fact' in an 

administrative hearing held pursuant to [Code § 46.2-391.2] are 

different from those in a prosecution for the offense of driving 

while intoxicated, the doctrine of collateral estoppel does not 

bar . . . [a] subsequent prosecution for driving while 

intoxicated." Walton, 831 S.W.2d at 490 (holding that 

administrative hearing to revoke defendant's license did not 

collaterally bar prosecution and did not violate double 

jeopardy). 

 Furthermore: 

 If we were to hold the doctrine of collateral 

estoppel applicable to later criminal 

proceedings, the [Commonwealth] would be 

forced to litigate thoroughly every fact at 

issue in an administrative license suspension 

proceeding. This would undermine the goal of 

providing informal and prompt review of a 

decision to suspend a driver's license. 
 6 

Cassady, 662 A.2d at 958. See Young, 544 N.W.2d at 812; Moore, 

561 N.E.2d at 652. "From the [Commonwealth's] perspective, [an 

administrative] hearing is a minor matter where one would not 

expect the [Commonwealth] to prosecute the action vigorously[.]" 

State v. Gusman, 874 P.2d 1112, 1115 (Idaho 1994). Also, 

because license suspension hearings are civil in nature, "the 

court may rely on law enforcement officers' official reports in 

the absence of the officers themselves." Moore, 561 N.E.2d at 

650; State v. Higa, 897 P.2d 928, 936 (Haw. 1995); see Code 

§ 46.2-391.2(B), (C). 

 For these reasons, we hold that the doctrines of double 

jeopardy and collateral estoppel did not bar appellant's 

prosecution for drunk driving, and we affirm his conviction. 

Affirmed.
 7 

Benton, J., concurring. 

 I concur in the majority's holding that our decision in 

Tench v. Commonwealth, 21 Va. App. 200, 462 S.E.2d 922 (1995)(en 

banc) is dispositive of appellant's double jeopardy argument. 

 While I generally agree with most of the majority's 

discussion of collateral estoppel, I believe that the following 

language of Code § 46.2-391.2(C) is dispositive of the collateral 

estoppel issue: 

 The [general district] court's findings 

[with regard to the review of the license 

suspension] are without prejudice to the 

person contesting the suspension or to any 

other potential party as to any proceedings, 

civil or criminal, and shall not be evidence 

in any proceedings, civil or criminal. 

 "In Virginia, it is well established that collateral 

estoppel requires mutuality." Hampton Roads Sanitation Dist. v. 

City of Virginia Beach, 240 Va. 209, 213, 396 S.E.2d 656, 658 

(1990). Under the mutuality doctrine, for which no exception 

applies in this case, "a litigant is generally prevented from 

invoking the preclusive force of a judgment unless he would have 

been bound had the prior litigation of the issue reached the 

opposite result." N & W v. Bailey, 221 Va. 638, 640, 272 S.E.2d 

217, 218 (1980). See also Angstadt v. Atlantic Mutual Ins. Co., 

249 Va. 444, 447, 457 S.E.2d 86, 87 (1995). Under the language 

of Code § 46.2-391.2(C), no party to the license suspension 

hearing was bound by any ruling made by the general district 

court. Indeed, the statute states that the findings may not be 
 8 

used in any proceeding. 

 Thus, I would also affirm the conviction.