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State v. McClendon

May 1, 1997

STATE OF WASHINGTON, PETITIONER,
v.
DOY LEE MCCLENDON, GIL CROSBY, SALLY PARRISH, FRANK SAYRE, RICHARD TRIQUART, STEPHEN STARK BRIAN HAYTON AND MARK BOOTH, RESPONDENTS



Appeal from Superior Court of Whitman County. Docket No: 95-1-00040-6. Date filed: 05/01/95. Judge signing: Hon. J. D. Frazier.

Authored by Charles Z. Smith. Concurring: James M. Dolliver, Philip A. Talmadge, Richard P. Guy, Barbara Durham. Dissenting: Richard B. Sanders, Gerry L. Alexander, Barbara A. Madsen, Charles W. Johnson.

The opinion of the court was delivered by: Smith

En Banc

SMITH, J. The parties and a Judge of the Whitman County Superior Court jointly seek review of a Whitman County District Court decision granting the respondents' motion to dismiss charges of driving while under the influence of intoxicating liquor in violation of RCW 46.61.502. We granted review. We reverse and remand for trial.

QUESTION PRESENTED

The sole question presented in this case is whether it is unconstitutional double jeopardy for the State of Washington to prosecute respondents for violation of RCW 46.61.502, driving a vehicle while under the influence of intoxicating liquor, when the Department of Licensing has previously issued each respondent a probationary license after test results showed each had a breath alcohol level of .10 percent or higher.

STATEMENT OF FACTS

The cases against all eight respondents were dismissed by the Whitman County District Court, the Honorable David Frazier, on May 1, 1995. On May 9, 1995 the State of Washington appealed the cases to the Whitman County Superior Court. The Judge, the Honorable Wallis W. Friel, and all parties asked this court for direct review. We granted review of the consolidated cases on October 5, 1995.

The eight respondents were initially charged in the Whitman County District Court by the Whitman County Prosecuting Attorney for violations of RCW 46.61.502, driving while under the influence of intoxicating liquor. In connection with the State's appeal, the parties on June 26, 1995 filed in the Whitman County Superior Court an "Agreed Narrative Report of Proceedings" dated June 16, 1995, which states:

[Respondents] Doy L. McClendon, Gil Crosby, Sally Parrish, Frank Sayre, Richard Triquart, Stephen Stark, Brian Hayton and Mark Booth [were] arrested for suspicion of violating RCW 46.61.502 on 12/9/94, 11/19/94, 12/2/94, 1/31/95, 12/18/94, 2/3/95, 2/9/95 and 3/5/95 [respectively].

Each defendant submitted to a BAC Datamaster Verifier test in compliance with RCW 46.20.308 and all relevant Washington Administrative Code provisions. Each defendant registered a breath test result of .10 or higher. All defendants [were]

issued temporary licenses and advised of their right to an administrative hearing pursuant to 46.20.365. And, all defendants were issued probationary licenses as a result of their performances on the breath test.

Subsequent to the issuance of the probationary licenses the Whitman County Prosecutor's office initiated criminal actions in the Whitman County District Court for alleged violations of RCW 46.61.502 [based on] the same conduct. On February 16, 1995, Defense's Motion to Dismiss for Violation of Double Jeopardy was filed. On February 21, 1995, the State's response was filed. Argument on this issue was heard by Judge [David] Frazier on March 3 and March 8, 1995.

Judge Frazier reserved ruling on the matter. On April 17, 1995, Judge Frazier ruled in favor of the State finding that subjecting a defendant to a civil proceeding which seeks imposition of a probationary driver's license did not constitute punishment. On April 18, 1995, defense counsel filed Defendant's Motion for Reconsideration. On April 27, 1995, Judge Frazier reversed his decision of April 17, 1995, ruling in favor of the defense and citing State v. Calle, 125 Wash. 2d 769 [888 P.2d 155] (1995), but reserved ruling on the appropriate remedy. On May 1, 1995, over the objections of the State, on the ground of lack of notice, the above-entitled cases [were] consolidated and Findings of Fact and Conclusions of Law were entered granting the defense Motions to dismiss. On May 9, 1995, the State [Appellant] filed a timely Notice of Appeal.

The Findings of Fact and Conclusions of Law entered by the District Court on May 1, 1995 stated:

FINDINGS OF FACT

1. The Defendant was arrested on suspicion of DUI.

He/She agreed to take a breath test which registered .10 or above. Based on these facts, the arresting officer provided to the Washington State Department of Licensing a Report of Breath/Blood Test. Pursuant to RCW 46.20.365 the arresting officer issued to the Defendant a temporary license and the Washington State Department of Licensing initiated administrative action which resulted in the imposition of a five year requirement that Defendant drive on a probationary license.

2. Based on the same facts/incident, the Whitman County Prosecuting Attorney's Office issued a criminal citation charging the Defendant with the crime of DUI

pursuant to RCW 46.61.502.

BASED ON THESE FINDINGS, the court concludes:

ConclusionS OF LAW

1. The State of Washington, based upon the same facts, has initiated two separate and distinct proceedings against the Defendant.

2. The criminal proceeding seeks to punish the Defendant.

3. The civil proceeding brought by the Department of Licensing which seeks imposition of a probationary license also constitutes punishment as that term is considered under double jeopardy analysis pursuant to State v. Calle, 125 Wash. 2d 769 [888 P.2d 155] (1995).

THEREFORE, IT IS HEREBY ORDERED:

1. That the criminal charge of DUI filed herein is dismissed with prejudice.

2. Costs are not awarded, but shall abide the outcome of any appeal.

On July 28, 1995, Appellant, Respondents, and the Honorable Wallis W. Friel, Whitman County Superior Court, filed a joint request for direct review by the Supreme Court. We granted review on October 5, 1995. Amicus Curiae, Washington Association of Prosecuting Attorneys, filed a ...


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