In Virginia, operating a motor vehicle after consuming alcohol or other drugs may result in being charged with drunk driving.
DUI is driving under the influence of a drug or driving while intoxicated. Many people in Virginia face DUI charges. The traffic rules for DUI or DWI in Virginia are very strict. Small amounts of BAC levels will cause a serious problem for you. Make sure that you do not drive under the influence of any drug at all. In any case, finding a traffic attorney who deals with such cases is important. If you live in Arlington, Virginia, you should know that you can go to jail for breaking the law and driving under the influence of a drug. Every day there are hundreds of people who drive and have the BAC levels higher than the amount the state allows. Not everyone knows if they have BAC levels at a higher percentage. It is when the officer stops them because of their driving behaviour, and they find out they are under the influence. It is why you should never drive after having alcohol. It takes some time for alcohol to drain out of your system. If you drink and then drive, it will be breaking the law, and you may receive a punishment for it. In case of DWI or DUI, you should always consult a specialist lawyer. These lawyers are experts in dealing with cases such as driving under the influence. These are specialists who know the laws, and they know how the courts work.
Hiring a lawyer who knows the laws in Virginia is the best thing you can do. A lawyer who has been serving in the state for many years knows what to do to get you out of trouble. It is why people only trust local lawyers. These lawyers know the law, they have resources and connections. You should hire these lawyers to ensure that you will not face charges.
Once you commit a crime such as driving under the influence of a drug, there are two things you can do. You can file the case against the charges and prove that you were not under the influence and you get free without any charges. You can also file the case to lessen the charges. The lawyer will gather information and evidence that you were not under the influence. He will help the court decision not to punish you. In case the BAC report comes, you only have a chance to plea to lessen the charges. In such case, the lawyer will try his best to ensure that the judge does not decide to give you the maximum punishment.
Getting in a problem is easy, but getting out is not. You should look for the best and the most expert DUI attorneys. These lawyers specialise in traffic laws in Arlington. You can trust these lawyers for helping you. These lawyers will take your case and handle all the legal paperwork for you. These lawyers are the best choice you have to reduce the sentence against you. Not hiring a lawyer for a DUI offence is a big mistake.
On April 29, 1995, Richard Wright, Jr., was arrested for driving under the influence of alcohol in violation of Va. Code § 18.2-266. Following the defendant’s arrest and upon a determination that his blood alcohol content was greater than .08 grams per 210 liters of breath, Wright’s operator’s license was suspended for seven days pursuant to Va. Code § 46.2-391.2 (Administrative License Suspension, “ALS”). Wright moves the court to dismiss the warrant charging driving under the influence of alcohol on the grounds that he has been twice placed in jeopardy in violation of the Fifth Amendment to the United States Constitution, namely, the “Double Jeopardy Clause.” The Commonwealth asserts that both the ALS action and the driving under the influence of alcohol prosecution are lawful and do not place the defendant twice in jeopardy. The court held an evidentiary hearing on July 14, 1995, and took the matter under advisement. The Court has considered the evidence presented, the memoranda of counsel, and many opinions of other trial courts and appellate courts and elsewhere.
” The Double Jeopardy Clause protects against three distinct abuses: 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.” United States v. Halper, 490 U.S. 435, 104 L. Ed. 2d 487, 109 S. Ct. 1892 (1989). In order to resolve the questions presented in this case the court must ask the following questions:
Cases decided prior to Halper are of limited utility in the analysis of whether the ALS action results in punishment. No longer does the nomenclature of “civil,” “criminal,” or “administrative” have dispositive affect upon the underlying issue of whether a sanction is punitive in nature. Furthermore the distinction between a “right” and a “privilege,” is no longer helpful in resolving whether a sanction is punitive in nature.
In Halper the defendant was sentenced to two years in prison and fined $ 5,000 for criminal violations of the False Claims Act. Thereafter, the Government filed a civil false claims action against the defendant. The Court stated that the amount of the civil penalty was “entirely unrelated” to the a ctual damages suffered and the expenses incurred by the Government. The Court identified the issue before it as follows:
whether a civil sanction, in application, may be so divorced from any remedial goal that it constitutes “punishment” for the purpose of double jeopardy analysis.
Halper, 490 U.S. at 443. Further, the Court stated:
the labels “criminal” and “civil” are not of paramount importance. It is commonly understood that civil proceedings may advance punitive as well as remedial goals, and, conversely, that both punitive and remedial goals may be served by criminal penalties . . . . the determination whether a given civil sanction constitutes punishment in the relevant sense requires a particularized assessment of the penalty imposed and the purposes that the penalty may fairly be said to serve. Simply put, a civil as well as a criminal sanction constitutes punishment when the sanction as applied in the individual case serves the goals of punishment . . . .
We have recognized in other contexts that punishment serves the twin aims of retribution and deterrence. [Citations omitted.] Furthermore, “retribution and deterrence are not legitimate nonpunitive governmental objectives.” [Citations omitted.] From these premises, it follows that a civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment, as we have come to understand the term. [Citations omitted.]
Halper, 490 U.S. at 448.
If there were any doubt following Halper concerning the definition of “punishment,” the Court sought to emphasize the analysis in Austin v. United States, 509 U.S. 602, 113 S. Ct. 2801, 125 L. Ed. 2d 488 (1993). The case involved a challenge to an in rem forfeiture after a conviction of drug offenses. The challenge was based upon the Eighth Amendment prohibition against excessive fines. The Court affirmed the reasoning of Halper stating:
Fundamentally, even assuming that [the forfeiture provisions] serve some remedial purpose, the Government’s argument must fail. “A civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment, as we have come to understand the term.” Halper, 490 U.S. at 448, 109 S. Ct. at 1902 [emphasis added].
Austin, 113 S. Ct. at 2812. It is the Court’s “emphasis added” which is most significant.
Finally, the Court addressed the issue once ag ain in Department of Revenue of Montana v. Kurth Ranch, 511 U.S. 767, 114 S. Ct. 1937, 128 L. Ed. 2d 767 (1994). The Court stated the significance of the case as follows:
This case presents the question whether a tax on the possession of illegal drugs assessed after the State has imposed a criminal penalty for the same conduct may violate the constitutional prohibition against successive punishments for the same offense.
Kurth Ranch, 114 S. Ct. at 1941.
Montana no doubt could collect its tax on the possession of marijuana, for example, if it had not previously punished the taxpayer for the same offense, or indeed, if it had assessed the tax in the same proceeding that resulted in his conviction.
Kurth Ranch, 114 S. Ct. at 1945.
This drug tax is not the kind of remedial sanction that may follow the first punishment of a criminal offense. Instead, it is a second punishment within the contemplation of a constitutional protection that has “deep roots in our history and jurisprudence,” Halper, 490 U.S. at 440, 109 S. Ct. at 1897, and therefore must be imposed during the first prosecution or not at all. The proceeding Montana initiated to collect a tax on the possession of drugs was the functional equivalent of a successive criminal prosecution that placed the Kurths in jeopardy a second time “for the same offence.”
Kurth Ranch, 511 U.S. 767, 114 S. Ct. 1937 at 1948, 128 L. Ed. 2d 767.
According to the United States Supreme Court in the cases cited above, unless the purpose can be fairly stated to be solely remedial, then the significant deprivation of an operator’s permit (a protected property interest) in the ALS action is “punishment” as the Court has “come to understand the term.”
Legislative history as well as statutory construction aid in resolving the inquiry. Senate Joint Resolution 172 authorized the study of administrative license suspension for defendants charged with the driving under the influence of alcohol. Senate Document No. 8 is entitled “Administrative Revocation of Driver’s Licenses,” and represents the work of The Department of Motor Vehicles, VASAP, and the Transportation Safety Board in fulfilling its responsibilities pursuant to the Joint Resolution. The report favored ALS and offered as a basis for the statutory scheme the following rationale:
Deterrence: Many of those testifying or submitting written comments believe administrative license revocation serves not only as a general deterrent to potential drunk/drugged drivers, but also as a specific deterrent to those previously convicted of driving under the influence of alcohol. However, many felt that in order for this process to be effective, the action must occur immediately and result in punishment severe enough to discourage drivers from ever driving intoxicated or under the influence of drugs in the first place. [Emphasis supplied.]
Courts should examine carefully that which is offered as legislative history. Often committee reports and staff documents reflect the views of persons other than the legislators who voted on the measure. However, in this instance the near unanimity of support for the stated purpose of “deterrence” and “punishment” convince this Court that the legislature did not act for “solely remedial purposes.”
Additionally, the clear meaning and effect of §§ 46.2-391.2 and 46.2-391.4 demonstrate that remedial concerns cannot be the sole purpose of the legislature in enacting the ALS provisions. In the ALS action the Clerk of the General District Court shall return the defendant’s license at the end of the seven day period unless the probable cause determination is appealed and overruled during the same period. There is no requirement for alcohol evaluation or treatment during the seven day period and no mechanism to determine if the defendant poses a threat to the health and safety of the community. If the defendant was a threat to the health and safety of the community at the outset of the suspension, there is no reason advanced by the Commonwealth for a determination that he is no longer a threat at day seven or any other day.
Pursuant to Halper, Austin & Kurth Ranch and consistent with the stated legislative purpose and the clear effect of the ALS action, the Court determines that the suspension pursuant to § 46.2-391.2 constitutes punishment for the purposes of double jeopardy analysis.
Do the ALS Action and the Prosecution Constitute the Same Proceedings or Are They Separate Proceedings?
Having determined that the ALS proceeding results in punishment, the court must determine if the effort to prosecute the defendant on the charge is a “separate proceeding” from the ALS action. The Double Jeopardy Clause is not implicated if multiple punishments are rendered in the “same proceedings.”
It is clear that both proceedings must be judicial in nature in order to invoke double jeopardy analysis. See Wild v. Commonwealth, 18 . App. 716, 446 S.E.2d 626 (1993). Code § 46.2-391.2 provides in part as follows:
If a breath test is taken pursuant to 18.2-268.2 or any similar ordinance of any county, city or town 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, or the person refuses to submit to the breath test in violation of 18.2-268.3 or any similar local ordinance, and upon issuance of a warrant by the magistrate for a violation of 18.2-266 or 18.2-268.3, or any similar local ordinance, the person’s license shall be suspended immediately for seven days . . . .
The magistrate is a judicial officer for this purpose and his decision is pursuant to a judicial proceeding. See Article VI, § 8, Constitution; . Code § 19.2-48.1; Penick v. Ratcliffe, 149 . 618, 140 S.E. 664 (1927).
In the case of United States v. $ 405,089.23 U.S. Currency, 33 F.3d 1210 (9th Cir. 1994), the court dealt with a criminal prosecution and a civil forfeiture action and stated:
We fail to see how two separate actions, one civil and one criminal, instituted at different times, tried at different times before different factfinders, presided over by different district judges, and resolved by separate judgments, constitute the same “proceeding.” In ordinary legal parlance, such actions are often characterized as “parallel proceedings,” but not as the “same proceeding.” A forfeiture case and a criminal prosecution would constitute the same proceeding if they were brought in the same indictment and tried at the same time. The government could have sought criminal forfeiture in this case pursuant to [a federal criminal forfeiture statute]. If it had done so and included the forfeiture count in the same indictment as the other criminal counts and then proceeded to trial against the defendants on all counts, the forfeiture case and the criminal case would have constituted the “same proceeding.” However, the government chose to proceed against the claimants on two separate fronts — in two separate, parallel proceedings . . . . We are not willing to whitewash the double jeopardy violation in this case by affording constitutional significance to the label of “single, coordinated prosecution.”
$ 405,089.23 U.S. Currency, 33 F.3d at 1216-17.
In the recently decided case of United States v. Ursery, 59 F.3d 568, 1995 WL 411189, (6th Cir. 1995), the government sought civil forfeiture of the home owned by the defendant and his wife because of use of the property to grow marijuana. The matter was settled with the government by a civil judgment for $ 13,250.00 which was paid by defendant and his wife. Shortly thereafter the government indicted the defendant on criminal charges based upon the same conduct, namely, manufacture of marijuana.
The court had little trouble finding that the civil settlement of the forfeiture action was “punishment” for double jeopardy purposes. Additionally, the court had little trouble finding that the two actions were for the “same offense” pursuant to United States v. Dixon, 509 U.S. 688, 113 S. Ct. 2849, 125 L. Ed. 2d 556 (1993), and Blockburger v. United States, 284 U.S. 299, 76 L. Ed. 306, 52 S. Ct. 180 (1932). The court turned to the next issue, namely, were the two actions part of a single coordinated proceeding. As the court noted:
The Supreme Court has made clear that the government may seek and obtain both the full civil penalty and the full range of statutorily authorized criminal penalties in the same proceeding. Halper, 490 U.S. at 450.
Indicating that the court must examine the facts and avoid simple labels, the court found that:
The civil forfeiture proceeding and the criminal proceeding were instituted four months apart, presided over by different district judges, and resolved by separate judgments. The district court found these two proceedings to be part of a “single, coordinated proceeding” without providing any factual support for this determination. As a matter of principle, applying a label to something does not make it so. Without a reasonable analysis of the indicia of coordination, we do not believe these two proceedings logically become part of a single, coordinated procedure merely by labeling them as such. Similar to the Ninth Circuit, we find that applying the label of “single, coordinated prosecution” to the facts of this case simply goes too far. The civil forfeiture proceeding and the criminal prosecution were two separate proceedings for purposes of double jeopardy analysis.
The Court of Appeals considered a similar issue in the case of Small v. Commonwealth, 12 . App. 314, 402 S.E.2d 927 (1991). Therein the Commonwealth initiated simultaneously civil and criminal contempt proceedings against the defendant for violation of a prior decree of court. Criminal proceedings were held after civil proceedings because of problems related to proper service upon the defendant in the criminal case. The court heard the civil contempt charges and imposed a $ 3,000 fine upon the defendant in addition to attorney’s fees to the Commonwealth and restitution to customers.
The defendant sought dismissal of the criminal contempt proceedings on the grounds that it violated the bar against double jeopardy. The majority said:
While it is true that both criminal and civil sanctions may be imposed as a result of the same conduct, the double jeopardy clause bars the imposition of two separate penalties if both are punitive. The labels “criminal” and “civil” are not of great importance in determining whether a later punishment is barred by the double jeopardy clause. Furthermore, it is not the “fact of punishment but rather its character and purpose” that distinguishes civil and criminal contempt. The punishment for civil contempt is remedial and for the benefit of the injured party. The punishment for criminal contempt, however, is punitive, “to vindicate the authority of the court.” [citations omitted] . . . .
The double jeopardy clause becomes operative if one of the sanctions “may not fairly be characterized as remedial” and both sanctions may be characterized only as either “a deterrent or retribution.” A sanction is not “remedial” if it “bears no rational relation to the goal of compensating” the injured party, which may include the government, for its loss. [Citations omitted.]
Small, 12 . App. at 317.
The Court determined that there was no remedial basis for the court’s award of the penalties; consequently, the penalties must be determined to be punitive in nature.
In order for the court to reach its conclusion, it must have determined that the proceedings were “separate.” This conclusion does not specifically appear in the majority opinion; however, it is confirmed in the dissent when the author notes: “Assuming, however, that the present case must be viewed as involving two separate proceedings . . . .” Small, 12 . App. at 321.
A comparison of the ALS action and the prosecution reveals the following:
Although some of the distinctions listed above would not, by themselves, serve as the basis for the conclusion that separate proceedings are involved in the ALS scheme, taken as a whole the Court finds that it cannot conclude that these statutes employ a “single, coordinated prosecution.”
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