In State v. Schalow (Dec. 20, 2016), the trial court’s error in declaring a mistrial led to a successful claim of double jeopardy by the defendant and allowed him to avoid further prosecution for attempted murder. Schalow sheds light on the relatively obscure (at least to me) law of mistrials and double jeopardy. Continue reading
Tag Archives: double jeopardy
When you can’t find what you’re looking for in North Carolina, you may have to extend your search out of state. Case in point: I’ve just discovered an opinion from the Minnesota Court of Appeals that answers the elusive question of how many aggravating factors apply if a person drives while impaired with more than one child in the car. And unlike some things you can only find in another state–like major league baseball and pot-laced gummy bears–you can bring this one home to the Old North State.
I recently taught a class of law students about criminal pleadings. We discussed proper pleadings and defective pleadings, and the State’s ability to bring new charges against a defendant after a case is dismissed due to a fatal defect in the pleading. It was an interesting conversation, and it prompted me to look into the matter a bit more. This post summarizes the law. Continue reading →
Litigants sometimes are surprised by circumstances in which a trial court’s ruling in a case is not capable of review on appeal. The court of appeals recognized one such situation earlier this week in State v. Kiselev, ___ N.C. App. ___ (May 19, 2015). Continue reading →
Committing a new criminal offense while on probation is a violation of probation. Nowadays it’s one of the only things for which a person may be revoked. Sometimes the parties wait to see whether a new criminal charge will result in a conviction before proceeding on it as a violation of probation. Sometimes they don’t. Either way, when you have two different courts (the probation court and the trial court) considering roughly the same issue (did this person commit a crime?), you run into issues like double jeopardy, collateral estoppel, and inconsistent results. Today’s post considers some of the possibilities. Continue reading →
The North Carolina Court of Appeals in State v. Mulder, __ N.C. App. ___, 2014 WL 1016059 (March 18, 2014), held that punishing a defendant for felony speeding to elude based upon the aggravating factors of speeding and reckless driving while also punishing him separately for those same misdemeanor traffic offenses violated double jeopardy.
Facts. The facts in Mulder are disturbing. The defendant’s former girlfriend, Brenda Swann, obtained a domestic violence protective order against him when their relationship ended. While the order was in effect, the defendant went to Swann’s home and began to strike her car with a hammer. Swann’s son confronted the defendant, who then attempted to force his way into the house. Swann called the police, and the defendant left the premises. A law enforcement officer located the defendant driving in his car shortly afterwards and attempted to pull the defendant over. The defendant did not stop, and the officer continued to pursue him. The officer testified that while fleeing, the defendant was swerving “as if he was trying to hit . . . . innocent people on the highway.” Several other officers joined the chase, and the vehicles involved reached speeds of 100 miles per hour. The defendant swerved toward one officer’s car and eventually rammed into another officer’s vehicle. An officer then intentionally rammed the defendant’s driver’s side door to force him to stop. The officer approached the defendant’s car with his gun pointed at the defendant. He told the defendant to get out of the car. The defendant reached out of the window, slapped the gun, and said “shoot me, motherf*****.” Rather than complying with the defendant’s request, the officer tried to pull the defendant out of the car. While he was doing so, the defendant shifted the car into reverse and accelerated. The officer with the gun was hanging in the driver’s side window, and another officer was hanging in the passenger side window. The second officer reached into the car, put it into park and shut off the engine. The defendant continued to struggle and curse as he was pulled from the car and arrested.
Procedural History. The defendant was indicted for, among other crimes, speeding, reckless driving to endanger, and speeding to elude arrest. He was convicted of those and other crimes. He was sentenced to 6 to 8 months imprisonment for the consolidated offenses of speeding, reckless driving, speeding to elude arrest, failure to heed light or siren, failure to maintain lane control, and littering. (He received longer sentences for his five convictions of assault with a deadly weapon on a government officer.)
The defendant appealed, arguing that the trial court erred in failing to arrest judgment on the speeding and reckless driving convictions because each of those offenses is a lesser-included offense of felony speeding to elude, an offense that was raised from a misdemeanor to a felony on the basis that the defendant was speeding and driving recklessly. Imposing punishment for all three offenses, the defendant contended, violated principles of double jeopardy.
Court of Appeals’ Analysis. The appellate court applied the Blockburger test, which inquires whether each offense requires proof of a fact that the other does not, to determine whether speeding and reckless driving were the “same offense” as felony speeding to elude for purposes of double jeopardy.
The elements of misdemeanor speeding to elude arrest under G.S. 20-141.5(a) are: (1) operating a motor vehicle (2) on a street, highway, or public vehicular area (3) while fleeing or attempting to elude a law enforcement officer (4) who is in the lawful performance of his duties. G.S. 20-141.5(a). If the State proves two of eight aggravating factors set forth in G.S. 20-141.5(b), the offense is elevated to a felony. The two factors found by the jury in Mulder were (1) speeding more than 15 miles per hour over the legal speed limit and (2) reckless driving as proscribed by G.S. 20-140.
The defendant also was convicted of speeding under G.S. 20-141(j1), which prohibits (1) driving (2) a vehicle (3) on a highway (4) more than 15 miles per hour over the speed limit or over 80 miles per hour and reckless driving in violation of G.S. 20-140(b), which prohibits (1) driving (2) a vehicle (3) on a highway or public vehicular area (4) without due caution and circumspection and (5) at a speed or in a manner so as to endanger or be likely to endanger any person or property.
The court reasoned that the factors used to elevate speeding to elude to a felony contained the same elements as the lesser traffic offenses of which the defendant also was convicted. It then considered whether these factors were properly considered elements of felony speeding to elude.
The State characterized the factors as sentencing enhancements rather than elements. The court of appeals rejected that distinction, noting that since the factors increased the maximum punishment a defendant faced, they were elements for purposes of the Sixth Amendment right to a jury trial. The court of appeals cited the U.S. Supreme Court’s plurality opinion in Sattazahn v. Pennsylvania, 537 U.S. 101, 111 (2003), for the proposition that that there was no principled reason to distinguish between an offense for purposes of the Sixth Amendment’s jury-trial guarantee and an offense for purposes of the Fifth Amendment’s double jeopardy clause. The Mulder court concluded, based on this authority, that the lesser included offenses were the “same offense” under Blockburger as felony speeding to elude.
Legislative Intent. The court then proceeded to the next step of the double jeopardy analysis—determining the legislature’s intent. When a defendant is punished twice in the same trial for a single offense, relief under double jeopardy principles is only available if the legislature did not intend for multiple punishments to be imposed. In ascertaining the legislature’s intent, the court considered its purpose in criminalizing speeding under G.S. 20-141 and reckless driving under G.S. 20-140. Both statutes were enacted to protect against harm to persons and property and in the interest of public safety. The same concerns apparently motivated the legislature to include these factors among those elevating speeding to elude to felony status. The court considered the codification of each offense in related sections of Chapter 20 to further evidence the General Assembly’s intent to permit alternative, but not cumulative, punishments for lesser traffic offenses used to establish felony speeding to elude.
Thus, the court held that the defendant was unconstitutionally subjected to double jeopardy when he was convicted of speeding and reckless driving in addition to felony speeding to elude based on speeding and reckless driving. The court arrested judgment on the speeding and reckless driving convictions. The court also remanded for resentencing, even though the speeding and reckless driving convictions were consolidated with the felony speeding to elude conviction and the defendant was sentenced to a presumptive range sentence. The court said that it could not assume that the trial court’s consideration of the speeding and reckless driving convictions had no effect on the sentence imposed.
Broader Significance. Mulder almost certainly means that lesser criminal offenses, such as driving while license revoked, that aggravate a sentence for impaired driving under G.S. 20-179 are the same offense for double jeopardy purposes. What is less certain is whether the legislature intended to authorize cumulative punishment in the impaired driving context. I reasoned here that it likely did, but the factors considered in Mulder, namely the purpose of the statutes and place of codification, points to a different conclusion.
Mulder may also revive the Hurt Blocker, a phrase Jamie coined in discussing the court of appeals’ conclusion in State v. Hurt, 208 N.C. App. 1, 702 S.E.2d 82 (2010), rev’d on other grounds, ___ N. C. ___, 743 S.E.2d 173 (2013) (per curiam), that the Confrontation Clause of the Sixth Amendment to the U.S. Constitution applied to the proof at sentencing of sentencing factors that increase the defendant’s sentence beyond the statutory maximum. Hurt was reversed by the supreme court on the grounds that the defendant’s confrontation rights were not violated by the testifying experts’ reliance on reports prepared by experts who did not testify at trial. ___ N.C. at ___; 743 S.E.2d at 173 (per curiam).
If you foresee other developments (or fall out, depending upon your perspective) following Mulder, please share your thoughts.
Last week, a Florida jury acquitted George Zimmerman of all charges in connection with the killing of Trayvon Martin. Some are now calling for Zimmerman to be charged federally. In fact, according to the New York Times, “[t]he Justice Department said Sunday that it was restarting its investigation” into the matter. However, I seriously doubt that federal charges are likely to be forthcoming, for the reasons below.
No double jeopardy problem. It’s important to note at the outset that a federal prosecution is possible, in the sense that there’s no constitutional barrier to it. See, e.g., Heath v. Alabama, 474 U.S. 82 (1985) (noting that under the “dual sovereignty doctrine,” when a single act violates the laws of two different sovereigns, both may prosecute, and that “the Court has uniformly held that the States are separate sovereigns with respect to the Federal Government”). But I don’t think a federal prosecution is probable, for two reasons.
No federal charge fits the facts. First, I’m not aware of a charge that fits the facts. There are two federal crimes that have been widely discussed as possible charges, and both strike me as seriously uphill battles for the government.
- Deprivation of civil rights. Under 18 U.S.C. § 242, it is a crime for a person “under color of any law” to deprive another of “any rights . . . protected by the Constitution or laws of the United States . . . by reason of [the person’s] color, or race.” Perhaps one could argue that Zimmerman deprived Martin of life and liberty without due process. But did he act “under color of any law”? Because of that provision, this statute is used almost exclusively to prosecute law enforcement officers and other public officials. In an important civil rights era case, the Supreme Court ruled that the statute also covers private persons who act in concert with state actors. United States v. Price, 383 U.S. 787 (1966) (holding that men who coordinated with a sheriff to kill civil rights activists were properly charged under this statute). But Zimmerman acted on his own, not together with police.
- Hate crime. Under 18 U.S.C. § 249, it is a crime willfully to “cause bodily injury to any person . . . because of the actual or perceived race, color, religion, or national origin of any person.” This charge might be a slightly better fit, because there is some evidence that Zimmerman’s initial perception of Martin was influenced by Martin’s race. However, the Florida jury appears to have concluded that the reason Zimmerman shot Martin was that Martin was punching him in the face and pounding his head against the pavement. In other words, the reason that Zimmerman “cause[d] bodily injury to” Martin was self-defense, not Martin’s race. A federal jury might see things differently, but the result of the Florida trial suggests circumspection.
The Petite policy may not allow further prosecution. Even if federal prosecutors can make out a federal case against Zimmerman, a second barrier to prosecution is the Dual and Successive Prosecution Policy followed by the United States Department of Justice and codified at section 9-2.031 of the United States Attorneys’ Manual. Because the policy was mentioned by the Supreme Court in Petite v. United States, 361 U.S. 529 (1960), it is widely known as the “Petite policy.”
Generally, the policy provides that before a federal prosecution may be brought based on “substantially the same act(s)” that formed the basis of a state prosecution, the Department must conclude that a “substantial federal interest” was “left . . . demonstrably unvindicated” by the state prosecution. The fact that Zimmerman was acquitted does not mean that the federal interest was “unvindicated” – the policy provides that “[i]n general, the Department will presume that a prior prosecution, regardless of result, has vindicated the relevant federal interest.”
There are exceptions, such as for corrupt state proceedings or for the “unavailability of significant evidence,” but it isn’t clear that any of the exceptions would apply in this case. And while the policy is a prudential one that the Department has the power to change, I doubt that the Attorney General would change a decades-old policy to facilitate a single prosecution.
Conclusion. I suspect we’ve reached the end of the road as far as criminal charges against Zimmerman. Of course, a civil suit by the Martin family may be forthcoming and would present entirely different considerations.
I’m not buying a lottery ticket this week. The court of appeals’ opinion in State v. McKenzie, published yesterday, casts serious doubt on my wagering skills. And if my wagers are this suspect when I make an educated guess, I don’t want take on the odds in a game of chance.
McKenzie holds, over a dissent, that the one-year disqualification of a defendant’s commercial driver’s license (CDL) based on the issuance of a civil license revocation for impaired driving is so punitive that it amounts to criminal punishment. Therefore, the majority concludes that prosecution for impaired driving after such a CDL disqualification violates double jeopardy. What does this have to do with my ability to predict outcomes? I forecast a different analysis in this earlier post.
McKenzie, a commercial truck driver for a logging company, was arrested in 2010 for impaired driving in a non-commercial vehicle. At McKenzie’s initial appearance, the magistrate issued a 30-day civil license revocation (CVR) based upon the results of McKenzie’s breath test, which reported an alcohol concentration of 0.08 or higher. See G.S. 20-16.5. Because McKenzie had a CDL, the issuance of the CVR disqualified him from driving a commercial motor vehicle for one year. See G.S. 20-17.4(a)(7). McKenzie lost his job as a truck driver after his disqualification. He worked for a while for his same employer as a logger, at half the pay. McKenzie was fired a few months after he moved into this new role because the company’s logging crews were overstaffed. McKenzie subsequently moved to dismiss his DWI charges, alleging due process, double jeopardy and equal protection violations. The district court dismissed the charges, but the superior court reversed and reinstated the charges. The defendant appealed to the court of appeals, arguing that the superior court erred because his DWI prosecution constituted double jeopardy.
After employing the seven-factor analysis in Hudson v. United States, 522 U.S. 93 (1997) for determining whether a sanction that the legislature has characterized as civil nevertheless amounts to criminal punishment, the court concluded that G.S. 20-17.4(a)(7) revocation amounted to criminal punishment. What’s surprising about McKenzie is that our appellate courts have used the Hudson analysis before to evaluate whether civil license revocations themselves are criminal punishment. And, on every such occasion, the court has determined they are not. See State v. Oliver, 343 N.C. 202 (1996) (rejecting defendant’s challenge on double jeopardy grounds to his prosecution for impaired driving following 10-day CVR and concluding that revocation was remedial, not punitive); State v. Evans, 145 N.C. App. 324 (2001) (rejecting defendant’s double jeopardy challenge to his prosecution for DWI following 30-day CVR, and finding that purpose of 30-day civil license revocation was “remov[ing] from our highways drivers who either cannot or will not operate a motor vehicle safety and soberly”). Indeed, in State v. Reid, 148 N.C. App. 548 (2002), the court rejected a defendant’s double jeopardy challenge to his prosecution for DWI after a 30-day CVR triggered a 30-day CDL disqualification. Noting its ruling in Evans that the 30-day CVR was a civil sanction, not a criminal punishment, the court declined to distinguish the defendant’s circumstances based on the CDL consequences, reasoning that the “impact on a single defendant is irrelevant to the double jeopardy analysis.” Id. at 563-64. Reid further noted the state’s “greater interest in the public’s safety regarding commercial drivers because there exists a greater risk of harm.” Id. at 553.
The court in McKenzie determined that the length of the CDL disqualification distinguished it from short-term CVRs whose retributive and deterrent effect is incidental to the overriding purpose of protecting public safety. The court characterized the “main purpose” of the one-year CDL to be deterrence and any remedial purpose “as incidental to its deterrent and retributive goals.” Reciting cautionary words from the Evans court following the lengthening of the CVR period from 10 to 30 days that “at some point, a further increase in the revocation period . . . becomes excessive . . . and can no longer serve a legitimate remedial purpose,” McKenzie concluded that the one-year CDL disqualification in G.S. 20-17.4 crossed that threshold.
I haven’t fully considered all of McKenzie’s implications, but, at a minimum, it establishes an exception to the long-standing rule that “[p]roceedings involving the suspension or revocation of a license to operate a motor vehicle are civil and not criminal in nature, and the revocation of a license is no part of the punishment for the crime for which the licensee was arrested.” Joyner v. Garrett, 279 N.C. 226, 234 (1971). How that exception applies to revocations other than G.S. 20-17.4(b)(7) will doubtless be litigated in cases to come. As I noted earlier, there was a dissenting opinion. Judge Robert C. Hunter concluded that the CDL revocation did not constitute criminal punishment and thus defendant’s DWI prosecution did not subject him to double jeopardy. Stay tuned to see if the State appeals, affording the North Carolina Supreme Court an opportunity to analyze the issue.
As most readers of this blog know, many people charged in North Carolina with driving while impaired and other implied consent offenses suffer the immediate consequence of having their driver’s licenses revoked pursuant to G.S. 20-16.5 by the magistrate at their initial appearance. North Carolina enacted its administrative license revocation procedure as part of the Safe Roads Act of 1983, terming the suspension of licenses of certain persons charged with implied consent offenses “a civil license revocation.” 1983 N.C. Sess. Laws ch. 435. The measure has since been denominated a CVR by acronym-happy officials and practitioners. You can read more here about the statutory bases and procedural requirements for CVRs. This post focuses on the nature and constitutionality of G.S. 20-16.5 revocations when coupled with a defendant’s conviction of the underlying implied consent offense.
When it was first enacted, G.S. 20-16.5 provided for a ten-day driver’s license revocation and restoration upon payment of a $25 fee. Writing about the procedure shortly after its enactment, my colleague Jim Drennan described the legislation as providing an immediate “ ‘slap in the face’ to virtually all drivers charged with DWI” and as making it “more certain that a sanction will be imposed, regardless of the defendant’s status or his lawyer’s expertise.” James C. Drennan, Impaired Driving: The Safe Roads Act, North Carolina Legislation 1983 (Ann L. Sawyer, ed. 1983). The National Highway Transportation Safety Administration’s characterization of such revocations is similar. NHTSA’s 2011 Highway Safety Countermeasure Guide describes such license revocations, which exist in varying forms in most states, as “provid[ing] for swift and certain penalties for DWI, rather than the lengthy and uncertain outcomes of criminal courts,” and lists them as one of the most effective countermeasures to reduce alcohol-impaired driving. (NHTSA Guide at 1-11).
Predictably, a constitutional challenge to North Carolina’s civil revocation procedure reached the state supreme court within a few years of its enactment. The court upheld the procedure as comporting with due process and equal protection under the federal and state constitutions and, in so holding, rejected the plaintiff’s claim that the revocation constituted punishment rather than a remedial highway safety measure. Henry v. Edmisten, 315 N.C. 474 (1986).
Ten years later, the state supreme court in State v. Oliver, 343 N.C. 202 (1996), rejected a defendant’s challenge premised on state and federal constitutional guarantees against double jeopardy to his conviction of impaired driving after his license had been revoked pursuant to G.S. 20-16.5. The defendant argued that the 10-day civil revocation of his license was punishment for purposes of double jeopardy analysis and that his subsequent criminal conviction amounted to an impermissible second punishment for the same offense. The court concluded that the license revocation was remedial rather than punitive and described the revocation and accompanying fee as “neither excessive nor overwhelmingly disproportionate responses to the immediate dangers an impaired driver poses to the public and himself.” Id. at 209. The court characterized “any deterrent effect” of the revocation as “merely incidental to the overriding purpose of protecting the public’s safety,” and noted that its decision accorded with the majority of states considering such challenges. Id. at 210.
After the legislature increased the minimum civil revocation period from 10 to 30 days in 1997, the court of appeals in State v. Evans, 145 N.C. App. 324 (2001), again considered a double jeopardy challenge to prosecution for impaired driving following a civil revocation. The Evans court rejected the defendant’s constitutional claim, finding that the purpose of the revocation continued to be “remov[ing] from our highways drivers who either cannot or will not operate a motor vehicle safely and soberly.” Id. at 331. The court noted that while it presently found “no punitive purpose on the face of” G.S. 20-16.5, “at some point, a further increase in the revocation period by the General Assembly becomes excessive . . . . [and] there is a point at which the length of time can no longer serve a legitimate remedial purpose, and the revocation provision could indeed violate the Double Jeopardy Clause.” Id. at 332.
The court has likewise rejected the claim that civil revocation of a defendant’s commercial driver’s license for impaired driving in a non-commercial vehicle amounts to punishment that bars the subsequent prosecution of the defendant for impaired driving. See State v. Reid, 148 N.C. App. 548, 549 (2002) (determining that civil revocation of defendant’s commercial license “was the exercise of reasonable regulatory authority designed for an appropriate public purpose,” and that defendant’s later conviction for impaired driving did not constitute double jeopardy).
Notwithstanding the appellate courts’ steadfast refusal to accept double jeopardy challenges premised upon G.S. 20-16.5 license revocations, legislation enacted in 2008 requiring a one-year disqualification for commercial driver’s license holders for civil revocations based upon offenses committed in noncommercial vehicles has reignited the double jeopardy debate. See S.L. 2008-175 (H 2308) (amending G.S. 20-17.4(a)(7) to disqualify a person from driving a commercial vehicle for one year if the person’s license is civilly revoked for impaired driving regardless of whether the driving giving rise to the civil revocation occurred in a commercial motor vehicle).
I’ve fielded a few inquiries recently about whether the loss of a commercial driver’s license for such a lengthy period based on driving in a noncommercial vehicle alters the analysis of whether such revocations are punishment rather than safety measures, thereby barring criminal prosecution of such drivers after imposition of the CVR. I’m doubtful that the lengthening of the disqualification period for commercial licenses renders the measure criminal punishment for purposes of double jeopardy. The court in Reid signaled its willingness to allow more extensive regulation of commercial drivers than that applicable to the general public, stating that that the State has a “greater interest in the public’s safety” when it comes to commercial drivers “because there exists a greater risk of harm.” 148 N.C. App. at 553. Significantly, the Reid court made those statements in the context of considering the constitutional implications of commercial license disqualifications arising from driving in a noncommercial vehicle. Furthermore, nothing suggests that the legislature intended in 2008 to change the nature of the civil license revocation when it enhanced the punitive effect of a CVR upon holders of commercial driver’s licenses. The act giving rise to these 2008 changes to commercial driver’s license laws was titled “An Act to Amend the Laws Governing Commercial Drivers Licenses in Order to Comply with Federal Law, as Recommended by the Joint Legislative Transportation Oversight Committee.” See S.L. 2008-175. The 2008 amendments to G.S. 20-17.4(a)(7) appear to have been made to ensure that the state retained its authority to issue commercial driver’s licenses and its eligibility for Motor Carrier Safety Assistance Program grant funds. See 49 U.S.C.A. Subt. VI, Pt. B, ch. 313; see also 49 C.F.R. § 383.51, Table 1 (requiring disqualification from operating a commercial motor vehicle for one year for refusing to be tested under the State’s implied consent laws while operating a non-commercial vehicle). Given this impetus for the legislation, it seems unlikely that our courts would infer an intent on the part of the state legislature to exact punishment rather than to regulate. Confronted with a similar challenge, the Supreme Court of Nebraska in State v. Arterburn, 751 N.W.2d 157 (Neb. 2008), concluded that one-year disqualifications of commercial driver’s license holders based upon administrative license revocations for impaired driving were civil in nature and did not bar subsequent criminal prosecution of drivers for impaired driving. If and when this issue reaches North Carolina’s appellate courts, I’d wager on a similar result.