Ex Parte: Linda M. Siemering

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-96-00012-CR Ex Parte: Linda Marie Siemering, Appellant FROM THE COUNTY COURT AT LAW OF CALDWELL COUNTY NO. 23,407, HONORABLE EDWARD L. JARRETT, JUDGE PRESIDING PER CURIAM Linda Marie Siemering appeals from the county court at law's denial of habeas corpus relief. Tex. R. App. P. 44. In a single point of error, appellant asserts that the court erred in holding that an administrative driver's license suspension did not serve as a double jeopardy bar to her prosecution for driving while intoxicated. We will affirm. The facts were stipulated below. Appellant was arrested for driving while intoxicated on August 28, 1994, and refused the arresting officer's request that she submit to a breath test. On April 20, 1995, after the requisite notice and hearing, a hearing officer found that probable cause existed to believe that appellant was driving while intoxicated and that she refused to give a specimen of her breath. Accordingly, appellant's driver's license was suspended for 90 days pursuant to the implied consent law. (1) Meanwhile, on February 24, 1995, an information was filed in Caldwell County cause number 23,157 accusing appellant of driving while intoxicated on August 28, 1994. The federal Double Jeopardy Clause protects an accused from multiple punishment for the same offense. United States v. Halper, 490 U.S. 435, 440 (1989); U.S. Const. amend. V. In three opinions since 1989, the United States Supreme Court has addressed the issue of whether a forfeiture constitutes punishment that bars prosecution growing out of the same offense. See Montana Dep't of Revenue v. Kurth Ranch, 511 U.S. , 128 L. Ed. 2d 767 (1994); Austin v. United States, 509 U.S. , 125 L. Ed. 2d 488 (1993); Halper, 490 U.S. 435. Invoking these opinions, appellant argues that the suspension of her driver's license constituted punishment for driving while intoxicated that bars prosecution in cause number 23,157. We recently reviewed the cited Supreme Court opinions and concluded that the administrative suspension of a driver's license after failing a test for intoxication did not constitute punishment within the meaning of the Double Jeopardy Clause and thus did not bar prosecution for the same driving while intoxicated offense. Ex parte Arnold, 916 S.W.2d 640 (Tex. App.--Austin 1996, pet. filed). (2) We found a bright line distinction between cases where the government attempts to forfeit property or raise revenue and those cases where the State attempts to suspend a driver's license. Id. at 642. Texas courts have long held that a license to drive an automobile on the streets is neither property nor a constitutionally protected right, but rather a privilege subject to reasonable regulations in the interest of the welfare and safety of the public. See Raitano v. Texas Dep't of Pub. Safety, 860 S.W.2d 549, 551 (Tex. App.--Houston [1st Dist.] 1993, writ denied); Coyle v. State, 775 S.W.2d 843, 846 (Tex. App.--Dallas 1989, no pet.). The revocation of a driver's license is not intended as punishment but is designed solely for the protection of the public in the use of the highways. Davidson v. State, 313 S.W.2d 883, 886 (Tex. Crim. App. 1958) (opinion on rehearing). While many of these cases construing the rights and interests possessed by licensees predated Halper, we would be remiss if we did not look to them for guidance. In addition to the Texas appellate opinions cited in Arnold, a more recent court of appeals opinion reviewed a nationwide survey of decisions which have almost uniformly held that an administrative license suspension does not prohibit a later prosecution for driving while intoxicated. Helber v. State, 915 S.W.2d 955, 960-62 (Tex. App.--Houston [1st Dist.] 1996, no pet. h.) We adhere to our ruling in Arnold that the holder of a driver's license possesses a privilege rather than an interest in property and that its suspension serves the remedial purpose of protecting public safety by quickly removing drivers from the road. Arnold, 916 S.W.2d at 643; see State v. Strong, 605 A.2d 510, 513 (Vt. 1992). Under the implied consent law, appellant's driver's license was suspended because she refused to give a specimen of her breath for analysis to determine alcohol concentration following her arrest for driving while intoxicated. The hearing officer did not find that appellant drove a motor vehicle in a public place while intoxicated, but only that the arresting officer had probable cause to believe that she did so. See former art. 6701l-5, § 2(f) (now Transp. Code § 724.042). The State urges that because the implied consent law does not require proof of intoxication and the driving while intoxicated statute does not require proof that a breath specimen was refused, the latter is not the "same offense" as the former. See Blockburger v. United States, 284 U.S. 299, 303-04 (1932). Because we determined in Arnold that the administrative suspension of a driver's license is not punishment for double jeopardy purposes, we need not address this argument. We hold that the suspension of appellant's driver's license does not bar her prosecution for driving while intoxicated under the Double Jeopardy Clause. We overrule the point of error and affirm the trial court's order denying habeas corpus relief. Before Chief Justice Carroll, Justices Aboussie and Kidd Affirmed Filed: June 26, 1996 Do Not Publish 1. Act of May 29, 1993, 73d Leg., R.S., ch. 886, § 9, 1993 Tex. Gen. Laws 3515, 3523 (Tex. Rev. Civ. Stat. Ann. art. 6701l-5, since amended and codified at Tex. Transp. Code Ann. ch. 724 (West 1996)). 2. See Act of May 29, 1993, 73d Leg., R.S., ch. 886, § 1, 1993 Tex. Gen. Laws 3515, 3516 (Tex. Rev. Civ. Stat. Ann. art. 6687b-1, since amended and codified at Tex. Transp. Code Ann. ch. 524 (West 1996)). In Arnold, it was undisputed that the administrative license suspension and the driving while intoxicated prosecution were the "same offense," and our opinion was premised on that undisputed fact. rosecution in cause number 23,157. We recently reviewed the cited Supreme Court opinions and concluded that the administrative suspension of a driver's license after failing a test for intoxication did not constitute punishment within the meaning of the Double Jeopardy Clause and thus did not bar prosecution for the same driving while intoxicated offense. Ex parte Arnold, 916 S.W.2d 640 (Tex. App.--Austin 1996, pet. filed). (2) We found a bright line distinction between cases where the government attempts to forfeit property or raise revenue and those cases where the State attempts to suspend a driver's license. Id. at 642. Texas courts have long held that a license to drive an automobile on the streets is neither property nor a constitutionally protected right, but rather a privilege subject to reasonable regulations in the interest of the welfare and safety of the public. See Raitano v. Texas Dep't of Pub. Safety, 860 S.W.2d 549, 551 (Tex. App.--Houston [1st Dist.] 1993, writ denied); Coyle v. State, 775 S.W.2d 843, 846 (Tex. App.--Dallas 1989, no pet.). The revocation of a driver's license is not intended as punishment but is designed solely for the protection of the public in the use o