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Double Jeopardy Defense in DWI/DUI Cases

The Double Jeopardy Clause of the Fifth Amendment guarantees that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb." The Clause provides three separate protections for criminal defendants: protection against re-prosecution for the same offense after an acquittal, protection against prosecution for the same offense after a conviction, and protection against multiple punishments for the same offense. Double jeopardy does not prevent a defendant from being subjected to both a criminal punishment and civil sanction for the same offense; rather, double jeopardy "protects only against the imposition of multiple criminal punishments for the same offense."

Drunk driving defendants have challenged the constitutionality of the states' dual use of administrative license suspension (ALS) statutes and criminal driving while intoxicated (DWI) prosecutions with the so-called Double Jeopardy Drunk Driving defense. According to this defense, once the state has suspended a driver's license in a civil proceeding pursuant to an ALS statute, a subsequent criminal prosecution for violating a DWI statute constitutes double jeopardy. Because the double jeopardy clause prohibits a state from imposing multiple criminal punishments for the same offense, the primary constitutional issue is whether ALSs constitute punishment; if so, a subsequent criminal DWI prosecution would subject a drunk driving defendant to an additional, and, therefore, unconstitutional, second punishment. Most state supreme courts have found, however, that administrative license revocation does not constitute punishment, but is remedial in nature. As a consequence, the license revocation followed by the criminal prosecution for violation of the DWI statutes does not offend of the Double Jeopardy Clause.

Similarly, offenders have made constitutional challenges to vehicle seizure or forfeiture provisions under the DWI codes. Under this argument, because a criminal DWI action is pending against the accused, the state or local authority is barred by double jeopardy from bringing a civil proceeding to forfeit the offender's automobile. The forfeiture of an automobile under most schemes will not be deemed criminal punishment, but a civil penalty, and the Double Jeopardy Clause does not apply. Also, an acquittal in a criminal case will not bar a subsequent action for civil forfeiture.

While the area of successive civil and criminal proceedings have withstood double jeopardy challenges, the challenge may be viable where the defendant is charged with multiple DUI/DWI offenses for a single incident. The test to determine whether two offenses are the same for double jeopardy purposes is known as the "Blockburger," or "same elements" test. This test asks whether each offense contains an element not contained in the other; if so, there is no double jeopardy violation. Under this test, one drunk driving incident may give rise to multiple charges without violating the Double Jeopardy Clause so long as each offense has an element that the others do not. Thus, a drunk driver could be charged with aggravated assault, aggravated operating under the influence, and driving to endanger. The same test applies to determine whether double jeopardy applies in cases involving multiple punishments or successive prosecutions.