Home / Uncategorized / INGRAM v. COMMONWEALTH



MAY 25, 1999

Record No. 0873-98-2





Timothy J. Hauler, Judge

Present: Judges Benton, Coleman and Elder

Argued at Richmond, Virginia


David M. Gammino for appellant.

H. Elizabeth Shaffer, Assistant Attorney
General (Mark L. Earley, Attorney General, on brief), for

Bradford Ramey Ingram (appellant) appeals from
his bench trial conviction for driving under the influence (DUI),
second offense, pursuant to Code Sect. 18.2-266. On appeal,
he contends the administrative suspension of his license pursuant
to Code Sect. 46.2-391.2 was invalid because he did not
refuse to take the breath test but rather was prevented from
doing so by his asthma. As a consequence, he contends that the
suspension was punitive and that his subsequent DUI conviction
violated the Double Jeopardy Clause. For the reasons that follow,
we affirm appellant’s conviction.



Appellant was arrested on September 10, 1997,
for driving while under the influence of alcohol, his second such
offense within five years. Because appellant had asthma, he
submitted to a blood test rather than a breath test. Based on his
inability to take a breath test, the Commonwealth
administratively suspended his operator’s license for seven days
pursuant to Code Sect. 46.2-391.2. Although the Notice of
Administrative Suspension issued to appellant indicated he could
challenge the suspension by filing a motion for review, the
record contains no evidence indicating that appellant filed such
a motion.

Following appellant’s conviction on the
underlying DUI charge in general district court, appellant
appealed that conviction and raised a plea of former jeopardy. By
written motion, he asserted that, because his asthma prevented
him from taking the breath test, the suspension was
"arbitrarily imposed without a legitimate administrative
basis" and, therefore, that "the suspension clearly
rises to the level of a punishment," rendering any further
punishment for the DUI offense a double jeopardy violation.

The trial court ruled as follows:

I don’t believe it was the intent of that
statute to be thwarted by the fact that someone with
legitimate and valid reasons could not present a breath
sample and I think the statute is drafted in such a manner
that your client did have the opportunity to appeal that
administrative revocation.

I’m finding that the revocation was
administrative in nature . . . .

Following the denial of his motion, appellant
stipulated that the evidence–including a certificate of analysis
showing a blood alcohol level of 0.17 percent and a prior DUI
conviction entered September 25, 1995–was sufficient to convict
him, and the trial court found him guilty.



Code Sect. 46.2-391.2(A) provides as

If a breath test is taken pursuant to
Sect. 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
Sect. 18.2-268.3 or any similar local ordinance, and
upon issuance of a petition or summons, or upon issuance of a
warrant by the magistrate, for a violation of
Sects. 18.2-51.4, 18.2-266 or Sect. 18.2-268.3, or
any similar local ordinance, the person’s license shall be
suspended immediately for seven days . . . .

Code Sect. 46.2-391.2(C) provides that
"[a]ny person whose license or privilege to operate a motor
vehicle has been suspended under subsection A may, during the
period of the suspension, request the general district court
. . . to review that suspension" and that
"the court shall rescind the suspension" if "the
person proves to the court by a preponderance of the evidence
that the arresting officer did not have probable cause for the
arrest, that the magistrate did not have probable cause to issue
the warrant, or that there was not probable cause for issuance of
the petition."

We previously have held that an administrative
license suspension issued pursuant to Code Sect. 46.2-391.2
is not "punishment within the meaning of the double jeopardy
clause"; therefore, a DUI prosecution instituted after a
license suspension does not constitute double jeopardy. See
Tench v. Commonwealth, 21 Va. App. 200, 208, 462 S.E.2d
922, 925 (1995), cited with approval in Brame v.
, 252 Va. 122, 130-32, 476 S.E.2d 177, 182-83
(1996). In reaching this conclusion, we relied on the test set
out in United States v. Halper, 490 U.S. 435, 109
S. Ct. 1892, 104 L. Ed. 2d 487 (1989), in which the United
States Supreme Court held that "the labels ‘civil’
and ‘criminal’ are not controlling" and that a
civil sanction nevertheless may constitute punishment under
certain circumstances. Tench, 21 Va. App. at 204-05, 462
S.E.2d at 924 (quoting Halper, 490 U.S. at 447, 109
S. Ct. at 1901).

In so doing, we noted that "the purpose of
revoking a driver’s license is ‘not to punish the
offender but to remove from the highways an operator who is a
potential danger to other users.’" Id. at 205,
462 S.E.2d at 924 (quoting Prichard v. Battle, 178 Va.
455, 463, 17 S.E.2d 393, 396 (1941)). We also examined the
legislative history behind the enactment of the suspension
statute, which provided that the legislature was "motivated
by its desire to reduce ‘alcohol-related crashes,
fatalities, and injuries.’" Id. (quoting S.J.
Res. 172, 1989 Va. Acts). As a result, we held that the license
suspension "is a remedial sanction because its purpose is to
protect the public from intoxicated drivers and to reduce
alcohol-related accidents" and, therefore, that it
"does not constitute punishment for purposes of double
jeopardy." Id. at 205-06, 462 S.E.2d at 924.

After our ruling in Tench, the United
States Supreme Court reconsidered its holding in Halper,
upon which our analysis in Tench was based. See Hudson
v. United States
, 522 U.S. 93, 118 S. Ct. 488, 139 L.
Ed. 2d 450 (1997). In Hudson, the Supreme Court held that
"Halper’s deviation from longstanding double
jeopardy principles was ill considered," and it
"reaffirmed the previously established rule exemplified in United
States v. Ward
, 448 U.S. 242, 248-49[, 100 S. Ct. 2636,
2640-41, 65 L. Ed. 2d 742] (1980)." Hudson, 522 U.S.
at 96, 101, 118 S. Ct. at 491, 494. Under the longstanding
double jeopardy principles outlined in Ward, determining
"[w]hether a particular punishment is criminal or civil is,
at least initially, a matter of statutory construction," and
"[a] court must first ask whether the legislature
‘. . . indicated either expressly or impliedly a
preference for one label or the other.’" Id. at
99, 118 S. Ct. at 493 (quoting Ward, 448 U.S. at 248,
100 S. Ct. at 2641). Because "the Halper Court
bypassed [this] threshold question," Hudson, 522 U.S.
at 101, 118 S. Ct. at 494, we did not expressly address this
issue in Tench. However, our analysis in Tench, as
outlined above, makes clear that the administrative license
suspension is civil in nature.

Under the traditional double jeopardy analysis
re-adopted in Hudson, even where the legislature shows an
intent to create a civil penalty, the court must consider
"‘whether the statutory scheme was so punitive either
in purpose or effect,’ as to ‘transfor[m] what was
clearly intended as a civil remedy into a criminal
penalty.’" Hudson, 522 U.S. at 99, 118
S. Ct. at 493 (citations omitted). Factors which
"provide useful guideposts" in making this
determination include:

(1) [w]hether 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 and 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, 118 S. Ct. at 493
(quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144,
168-69, 83 S. Ct. 554, 567-68, 9 L. Ed. 2d 644 (1963)) (internal
quotation marks omitted). 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." Id. at 100, 118 S. Ct. at 493
(citations omitted).

As we decided in Tench, the legislature
clearly intended for the administrative license suspension to be
a civil sanction. We also hold, under the factors outlined above,
that the statutory scheme is not so punitive as to transform
"a civil remedy into a criminal penalty." See Powers
v. Commonwealth
, 694 N.E.2d 324 (Mass. 1998) (holding that
suspension of license following alcohol-related accident under
statute permitting suspension based on driver’s
"immediate threat to public safety" is not punishment
under Hudson for double jeopardy purposes); Keyes v.
, 708 So. 2d 540 (Miss. 1998) (stating, as alternative
ground for affirming conviction, that license suspension for not
timely requesting trial after failing breath test does not
constitute punishment for double jeopardy purposes under Hudson);
State v. Howell, 575 N.W.2d 861 (Neb. 1998) (applying Hudson
to determine that license suspension for refusal to submit to
chemical test is not punishment for purposes of double jeopardy);
State v. Lomas, 955 P.2d 678 (Nev. 1998) (applying Hudson
to determine that suspension of license based on blood alcohol
content exceeding legal limit is not punishment for purposes of
double jeopardy); State v. Price, 510 S.E.2d 215 (S.C.
1998) (applying Hudson to determine that license
suspension for refusal to submit to chemical test is not
punishment for purposes of double jeopardy).

First, the seven-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, 118 S. Ct. at 496 (quoting Flemming v. Nestor,
363 U.S. 603, 617, 80 S. Ct. 1367, 1376, 4 L. Ed. 2d 1435
(1960)). "If occupational debarment from the banking
industry [in Hudson] cannot be considered an affirmative
disability 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, 118
S. Ct. at 496 (quoting Helvering v. Mitchell, 303
U.S. 391, 399 & n.2, 58 S. Ct. 630, 633 & n.2, 82 L.
Ed. 2d 917 (1938)); see also Commonwealth v.
, 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 Sect. 46.2-391.2; see also Price,
510 S.E.2d at 219 (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, 118 S. Ct.
at 493, "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 Halper), cited with approval in
Brame, 252 Va. at 131-32, 476 S.E.2d at 182-83. Further,
"[a]lthough deterrence is a traditional goal of criminal
punishment, . . . deterrence also may serve civil
goals," such as "deter[ring] drivers who entertain the
idea of driving while intoxicated and . . .
discourag[ing] 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,
"[t]his fact is insufficient to render the [sanction] criminally punitive, particularly in the double jeopardy
context." Hudson, 522 U.S. at 105, 118 S. Ct. at
496; see United States v. Ursery, 518 U.S. 267,
292, 116 S. Ct. 2135, 2149, 135 L. Ed. 2d 549 (1996)
("[I]t 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, 58 S. Ct. at 633)).

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.

Seventh, we cannot say the seven-day suspension
appears excessive in relation to this remedial purpose. As the
Court observed in Brame, "the length of the period
necessary to [accomplish the remedial purpose] is a matter within
the sound discretion of the General Assembly," and
"[i]t can hardly be said the discretion has been abused in
light of the fact that Virginia’s seven-day period is
shorter than any of the periods considered in . . .
out-of-state cases . . . the majority [of which] have
suspension periods of ninety days or more
. . . ." Brame, 252 Va. at 133, 476
S.E.2d at 183; see Lomas, 955 P.2d at 681 (holding
that ninety-day minimum suspension not excessive); Powers,
694 N.E.2d at 326, 328-29 (upholding indefinite administrative

Therefore, here, like in Hudson,
"there simply is very little showing, to say nothing of the
‘clearest proof’ required by Ward," that
the administrative license suspension is criminal in nature. Hudson,
522 U.S. at 105, 118 S. Ct. at 496.

Indeed, appellant concedes that in light of Hudson
a proper administrative license suspension is not punitive in
nature such that a subsequent prosecution for driving under the
influence arising out of the same incident does not violate the
double jeopardy prohibition. He nevertheless contends that the
suspension of his license pursuant to Code Sect. 46.2-391.2
was unlawful because, due to his asthma, he neither produced a
breath test result showing a violation of the DUI statute nor
refused to submit to a breath test. Without such a showing, he
contends, the administrative suspension was improperly applied
and became punitive, even though a suspension imposed under
proper circumstances would not have been punitive.

We disagree. 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 "evaluat[e] the ‘statute on its
face,’" Hudson, 522 U.S. at 101, 118 S. Ct.
at 490-91 (quoting Kennedy, 372 U.S. at 169, 83
S. Ct. at 567), rather than "‘the character of the
actual sanctions imposed,’" id. at 101, 118
S. Ct. at 490 (quoting Halper, 490 U.S. at 447, 109
S. Ct. at 1901). Therefore, assuming without deciding that
appellant’s license was improperly suspended under Code
Sect. 46.2-391.2, we nevertheless conclude, in keeping with
the above analysis, that the administrative suspension was not
punishment for purposes of double jeopardy. Cf. Robertson
v. Commonwealth
, 181 Va. 520, 537, 25 S.E.2d 352, 358 (1943)
(noting that "the power to decide includes the power to
decide wrong[ly] and [that] an erroneous decision is as binding
[for purposes of contempt] as one that is correct until set aside
or corrected in a manner provided by law" (quoting Freeman
on Judgments
Sect. 357, at 744 (5th ed.))). Any
deviation from proper procedure does not change the fundamental
character of the sanction, which is civil and remedial.
Appellant’s remedy was to challenge the suspension as
provided in the statute, a remedy he apparently chose to

For these reasons, we hold that
appellant’s conviction for driving under the influence
following the administrative suspension of his license did not
violate the Double Jeopardy Clause and, therefore, we affirm his