THE STATE OF SOUTH CAROLINA

In The Supreme Court

State of South Carolina Respondent,

v.

Franklin Price, III Petitioner.

ON WRIT OF CERTIORARI TO THE COURT OF

APPEALS

Appeal From Dorchester County

Luke N. Brown, Jr., Circuit Court Judge

Opinion No. 24863

Heard October 6, 1998 - Filed December 14, 1998

AFFIRMED

Stephen Groves, Sr. and Stephen L. Brown, both of

Young, Clement, Rivers & Tisdale, Charleston, and

Reese I. Joye and John L. Drennan, both of the

Joye Law Firm, North Charleston, for petitioner.

Attorney General Charles Molony Condon, Deputy

Attorney General John W. McIntosh, Assistant

Deputy Attorney General Salley W. Elliott, Senior

Assistant Attorney General Charles H. Richardson,

all of Columbia, and First Circuit Solicitor Walter

M. Bailey, of Summerville, for respondent.

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WALLER, A.J.: We granted certiorari to review the Court of Appeals'

opinion in State v. Price, Op. No. 97-UP-145 (Feb. 20, 1997). We affirm.

FACTS

On Sept. 5, 1994, at approximately 4:00 am, Price lost control of his

vehicle on a road in Dorchester County and crashed into a private residence.

When authorities arrived, they suspected Price had been drinking, and after

conducting a number of field sobriety tests, Price was placed under arrest.

He was taken to the Dorchester County jail, where he refused a breathalyzer

test. Due to his refusal to take the test, Price's driver's license was

suspended for ninety days.1 Thereafter, the state prosecuted Price for

Driving Under the Influence (DUI). He was convicted and sentenced to one

year imprisonment, suspended on eighteen months probation, and a fine of

$2000.00, and the requirement that he serve either thirty days incarceration

or perform twenty days of public service.

Price appealed, contending inter alia, his prosecution for DUI was

barred by double jeopardy, as he had already been punished by the ninety

day suspension of his license. The Court of Appeals, citing United States v.

Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989), found no

double jeopardy violation, and affirmed the conviction. State v. Price, Op. No.

97-UP-145 (Ct. App. Feb. 20, 1997).

ISSUE

Does the administrative suspension of Price's driver's license for

refusal to submit to a breathalyzer test render his subsequent

conviction for DUI violative of the Double Jeopardy Clause?2

DISCUSSION

operating a vehicle in this state refuses to submit to a breathalyzer or other

chemical test, none may be given, but the driver's license of the person

refusing the test may be suspended for ninety days.

2 S.C. CONST. art. 1,§ 12; U.S. CONST. Amend V. The Double

Jeopardy Clause protects against a second prosecution for the same offense

after acquittal or conviction, and against multiple punishments for the same

offense. Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 [327 S.C. 130]

L.Ed.2d 187 (1977); State v. Easler, 327 S.C. 121, 489 S.E.2d 617 (1997).

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While double jeopardy usually operates to bar successive or multiple

criminal prosecutions, it may also prevent the government from subjecting a

defendant to both a criminal punishment and a civil sanction. Helvering v.

Mitchell, 303 U.S. 391, 58 S.Ct. 630, 82 L.Ed. 917 (1938); Department of

Revenue of Montana v. Kurth Ranch, 511 U.S. 767, 114 S.Ct. 1937, 128

L.Ed.2d 767 (1994).

Recently, in Hudson v. United States, _ U.S. _, 118 S.Ct. 488, 139

L.Ed.2d 450 (1997),3 the United States Supreme Court set forth the

framework within which to analyze a double jeopardy claim in the context of

a civil sanction.4 Hudson held the mere fact that a civil penalty has some

3Hudson was decided subsequent to the Court of Appeals' opinion in

this case. Hudson abrogated the test set forth in United States v. Halper,

490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989). Halper required a

court, rather than assessing the statute on its face to determine the nature

of the sanction imposed, to assess the character of the actual sentence

imposed to determine if the sanction as applied in the individual case

served the goals of punishment. 490 U.S. at 449. 109 S.Ct. at 1901-02.

4 Both this Court and the United States Supreme Court have held, in

the context of criminal penalties, that the Blockburger v. United States, 284

U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) "same elements" test is the sole

test of double jeopardy in successive prosecutions, and multiple punishment

cases. United States v. Dixon, 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556

(1993); State v. Easlor, 327 S.C. 121, 489 S.E.2d 617 (1997).

However, the United States Supreme Court has not, in the context of

the civil sanction cases applied Blockburger (notwithstanding Justice Stevens'

concurrence in Hudson suggesting its application). In our view, under the

majority's analysis in Hudson, if a sanction is determined to be civil in

nature and has not been transformed into a criminal penalty, then the double

jeopardy clause is not implicated and there is simply no need to conduct a

Blockburger analysis. Accord, Hudson v. United States., 92 F.3d 1026, 1028,

n. 3 (10th Cir.)(10th Circuit found it unnecessary to address whether offenses

were the same under Blockburger since it found sanctions were not

punishment); Covelli v. Crystal 1994 WL 722976 (Conn. Super. Tax 1994),

rev'd on other grounds, 683 A.2d 737 (1996). See also Henning, Precedents

in a Vacuum: The Supreme Court Continues to Tinker with Double Jeopardy ,

31 Am.Crim.L.Rev. 1, 48 (1993) (Because Halper [and Hudson] analysis

depend on reaching a conclusion of when a sanction passes from civil to

criminal, Blockburger plays no significant role in this area).

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deterrent effect does not render it violative of the double jeopardy clause.

"[I]f a sanction must be "solely" remedial to avoid implicating the Double

Jeopardy Clause, then no civil penalties are beyond the scope of the Clause."

118 S.Ct. at 495. Accordingly, under Hudson, a court looks at the face of a

statute to determine if it establishes a criminal or civil penalty, and then

determines if the statutory scheme is so punitive in purpose or effect as to

transform what was intended as a civil sanction into a criminal penalty.

Only the clearest proof will suffice to override legislative intent and

transform what has been denominated as a civil remedy into a criminal

penalty. Id.

Pursuant to Hudson, we find the administrative suspension of a driver's

license for refusal to submit to a breathalyzer test is not so punitive in

purpose or effect as to constitute a criminal penalty.5

we find the Blockburger "same elements" test would apply. In light of our

holding that the current sanction is civil in nature, we need not apply a

Blockburger analysis to the present case. But see State v. Kerr, 330 S.C.

132, 498 S.E.2d 212 (Ct. App. 1998)(holding offenses of license suspension for

failure to submit to the breathalyzer under §56-5-2950, and DUI under § 56

-5-2930 are separate and distinct).

We note, however, that there may be circumstances when,

notwithstanding Blockburger, a court may conclude there is no double

jeopardy violation even if the same elements test is met where the legislature

clearly intends multiple punishments for a single act. See Missouri v.

Hunter. 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983); State v. Easler,

327 S.C. 121, 489 S.E.2d 617 (1997).

5 In determining whether the sanction is so punitive in nature as to

have been transformed into a criminal sanction, we review, as did the Court

in Hudson, the factors set forth in Kennedy v. Mendoza-Martinez, 372 U.S.

144, 168-169, 83 S.Ct. 554, 567-568, 9 L.Ed.2d 644 (1963): 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 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.

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First, as in Hudson although § 56-5-2950 does not expressly provide

that its sanctions are "civil" in nature, it is significant that the authority to

suspend an individual's license is vested with the "department," i.e., of motor

vehicles. Accord Hudson, 118 S.Ct. at 495 (that authority to issue debarment

orders is conferred upon administrative agencies is prima facie evidence

legislature intended to provide a civil sanction).

Second, the ability to operate a motor vehicle on the highways is a

privilege, rather than a right.6 State v. Collins, 253 S.C. 358, 170 S.E.2d 667

(1969). See also S.C. State Hwy. Dept. v. Harbin, 226 S.C. 585, 86 S.E.2d

466 (1955) (recognizing that Legislature has authority to prescribe the

conditions under which the privilege to operate a motor vehicle may be

granted or revoked).

Third, in Parker v. State Highway Department, 224 S.C. 263, 78 S.E.2d

382 (1953), this Court held the suspension of the driver's license of one

convicted of DUI constitutes no part of the punishment for the underlying

traffic offenses; the sanction is civil and not criminal in its nature. The

Court noted, "the purpose of the revocation is to protect the public and

not to punish the licensee." Parker, 224 S.C. at 271, 78 S.E.2d at 386.

Accord, State v. Higa, 897 P.2d 928 (1995)(license suspension is remedial in

that it protects public by removing potentially dangerous drivers from state

roadways); State v. Howell 575 N.W.2d 861 (Neb. 1998)(suspension of

driver's license for refusal to submit to a breathalyzer is clearly intended to

protect the public). Accordingly, it is clear that license revocation has not

historically been regarded as punishment in this state.7

Fourth, the sanctions here do not involve an "affirmative disability or

6 As Hudson noted, "revocation of a privilege voluntarily granted ... is

characteristically free of the punitive criminal element." 118 S.Ct. at 496.

7 Price contends the remedial nature of an administrative license

suspension is vitiated by the fact that the suspension is not immediate, and

takes effect, generally, only after an administrative hearing. We disagree.

That the state affords procedural due process, as required by Bell v. Burson,

402 U.S. 535. 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971), prior to suspending a

driver's license simply does not transform the suspension from a remedial

sanction into a punitive one. Accord State v. Hickam, supra 668 A.2d at

1328 (fact that driver arrested for DUI is permitted to retain license for 30

days in order to meet due process does not affect sanction's status as

remedial); State v. Hanson, supra, 532 N.W.2d at 602.

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restraint" as that term is normally understood. Although Price was

temporarily prohibited from driving, this is "certainly nothing approaching the

'infamous punishment' of imprisonment." Hudson, 118 S.Ct. at 496

(debarment from participating in banking industry not an affirmative

disability or restraint).

Fifth although the sanction here, administrative suspension, does come

into play only upon a finding of scienter, i.e., refusal to submit to testing, no

one of the factors alone is dispositive. Sixth, although the sanction of license

revocation may serve the goals of punishment (i.e., deterrence and

retribution), the primary goal, as noted by this court in Parker is to protect

the public. Accord State v. Hickam, 668 A.2d 1321 (Conn. 1995)(even though

administrative license suspension has some deterrent effect, primary thrust

is remedial purpose of protecting public). Further, the Hudson court noted

that the mere presence of a deterrent effect is insufficient to render such

sanctions "criminal." 118 S.Ct. at 494-496 (recognizing that all civil penalties

have some deterrent effect). Accord U.S. v. Ursery , 518 U.S. 267, 116 S.Ct.

2135, 135 L.Ed.2d 549 (1996); State v. Howell, supra. Moreover, the mere

fact that the conduct for which the sanction is imposed is also criminal is

insufficient to render the sanction criminally punitive. Hudson, 118 S.Ct. at

496, U.S. v. Imngren, 98 F.3d 811 (4th Cir. 1996), State v. HowelL supra.

Finally, we note that nearly every other court which has addressed the

issue finds no double jeopardy problem is posed by the administrative

suspension of a driver's license following a drunk driving arrest or refusal to

submit to chemical testing. See State v. Zerkel, 900 P.2d 744 (Alaska Ct.

App. 1995); State v. Savard, 659 A.2d 1265 (Me. 1995); State v. Hanson, 532

N.W.2d 598 (Minn. 1996) State v. Young, 530 N.W.2d 269 (Neb. Ct. App.

1995); State v. Strong, 605 A.2d 510 (Vt. 1992); Ferguson v. Killens. 497

S.E.2d 722 (N.C. App.1998);8 State v. Mayo, 915 S.W.2d 758 (Mo. 1996);

State v. Funke, 531 N.W.2d 124 (Iowa 1995); Luk v. Commonwealth, 5658

N.E.2d 654 (Mass. 1995); State Ex Rel Schwartz v. Kennedy, 904 P.2d 1044

(N.M. 1995); Pyron v. State, 953 S.W.2d 874 (Ark. 1997); State v. Ellenburg,

938 P.2d 1376 (Mont. 1997); Ex Parte Pitluk, 940 S.W.2d 220 (Tex. 1997).

See also State v. McLendon, 935 P.2d 13345, 1344-46 (Wash. 1997)(concurring

opinion exhaustively listing jurisdictions which find license suspensions are

not "punishment" for double jeopardy purposes).

double jeopardy violation; it therefore found it unnecessary to address the

defendant's contention the sanction was criminal.

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In sum, we find revocation of a driver's license for refusal to submit to

a breathalyzer test is a civil sanction which has not been transformed into

a criminal punishment. Accordingly, the state may prosecute Price for DUI

without violation of the Double Jeopardy Clause.

The Court of Appeals' opinion is

AFFIRMED.

FINNEY, C.J., TOAL, MOORE, and BURNETT, JJ., concur,

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