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Double Jeopardy Argument Applied to Drinking and Driving Cases


September 1995

The practice in many states of immediately seizing an intoxicated driver's license upon arrest is being called into question as more and more lawyers are asking courts to consider the seizure a punishment, and the trial on the charges a second potential punishment in violation of double jeopardy (Tony Mauro, "DUI Policy May Run Into Double Jeopardy," USA Today, June 21, 1995, p. 2A).

"In some courts, convictions are being thrown out 10 and 20 at a time," said Lawrence Taylor, the Long Beach, California lawyer who first raised double jeopardy application to a drinking and driving case. "It has been courageous for some of these judges to keep the Constitution in mind."

Lawyers who use double jeopardy argue that their clients are being punished twice -- once for the loss of the license, and then again if they are tried, convicted, and then sentenced. Double jeopardy has been found under these circumstances in drinking and driving cases in 18 states. More than 1000 people, including country singer John Denver, have had convictions overturned with the application.

The federal government gives highway funds to states that have an immediate suspension policy. 38 states currently have such a policy.

The double jeopardy application was spurred by the Montana v. Kurth Ranch asset forfeiture case, in which the U.S. Supreme Court found that Montana could not impose a marijuana tax (a punishment) after conviction and punishment for the crime of marijuana cultivation (Department of Revenue of Montana v. Kurth Ranch, 114 S.Ct. 1937 (1994)).

Prosecutors have been able to sway some judges with the argument that license seizure is remedial, not punitive, and is done to protect public safety, not to punish. Courts are split on the application of double jeopardy, and the issue may end up in the U.S. Supreme Court.