ON MOTION FOR REHEARING DATE OF JUDGMENT: 05/30/95 TRIAL JUDGE: HON. ROBERT H. WALKER COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT
BY: BILLY L. GORE DISTRICT ATTORNEY: CONO CARANNA NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION AFFIRMED AND REMANDED - 2/5/98 MOTION FOR REHEARING FILED: 10/2/97 MANDATE ISSUED:
The opinion of the court was delivered by: Banks, Justice, For The Court:
¶1. The Motion for Rehearing is granted. The original opinion is withdrawn and these opinions are substituted therefor.
¶2. The present case came before the Court on criminal interlocutory appeal from a ruling by the Circuit Court of Harrison County, Mississippi, denying the defendant's motion to dismiss. In Keyes v. State, No. 95-KA-01170 (decided September 4, 1997), we reversed and rendered, declaring that suspension of a driver's license constitutes punishment for purposes of double jeopardy. We conclude that the Double Jeopardy Clauses of the United States and Mississippi Constitutions do not preclude criminal prosecution for violation of Miss. Code Ann. § 63-11-30 subsequent to administrative license suspension pursuant to § 63-11-23(2).
¶3. On June 12, 1993, Ronnie David Keyes was arrested in Gulfport, Mississippi, for driving under the influence (DUI). Keyes registered a blood-alcohol content (BAC) of at least thirty-three one-hundredths percent (.330%), more than three times the legal limit. On July 13, 1993, the Mississippi Department of Public Safety suspended Keyes' driver's license pursuant to its administrative authority under Miss. Code Ann. § 63-11-23(2). Keyes had twice been convicted in the Municipal Court of Gulfport of DUI within the five-year period preceding this arrest. Accordingly, he was indicted on February 11, 1994, on the charge of felony DUI pursuant to Miss. Code Ann. §§ 63-11-30(1)(c) & (2)(c). *fn1
¶4. On May 2, 1995, Keyes filed a motion to dismiss based on the double jeopardy and ex post facto provisions of the United States and Mississippi Constitutions. *fn2 Keyes argues that the Federal and State Double Jeopardy Clauses bar criminal prosecution of the felony DUI charge because administrative license suspension (ALS) under § 63-11-23(2) constitutes a conviction on the merits for the same conduct. On May 30, 1995, the circuit court entered an order denying Keyes' motion to dismiss. The court noted that the Mississippi Supreme Court has not addressed the double jeopardy argument in DUI cases. Following the lead of sister states, however, the court determined that the ALS provisions of § 63-11-23 are "civil proceedings, remedial in nature, and designed primarily to protect the public from drunk drivers rather than to punish said drivers." As such, the court ruled that ALS does not constitute punishment for purposes of double jeopardy and would not bar subsequent prosecution for felony DUI under § 63-11-30.
¶5. Keyes perfected this interlocutory appeal through imperfect process. Nevertheless, because this case involves double jeopardy and an issue of public policy, we exercise our authority to suspend the rules in criminal cases and consider the matter on the merits. Miss. R. App. P. 2(c). See also Beckwith v. State, 615 So. 2d 1134 (Miss. 1992) (double jeopardy claims justify immediate determination and may be treated by this Court as a direct appeal from a final judgment).
¶6. In analyzing Keyes' double jeopardy claim, we are compelled to construe the statute under which his license was allegedly suspended. *fn3 This inquiry is necessary for resolution of the double jeopardy claim, since we must determine whether the required elements of ALS under § 63-11-23(2) are the same as those for conviction under § 63-11-30.
¶7. Keyes was arrested on June 12, 1993, for operating an automobile with a BAC greater than ten one-hundredths percent (.10%), in violation of § 63-11-30(1)(c). He was charged with felony DUI as a third-time offender pursuant to § 63-11-30(2)(c). One month and one day after the arrest the Mississippi Department of Public Safety suspended Keyes' driver's license pursuant to § 63-11-23(2), which then provided:
(2) If the chemical testing of a person's breath indicates the blood alcohol concentration was ten one-hundredths percent (.10%) or more by weight volume of alcohol, the arresting officer shall seize the license and give the driver a receipt for his license on forms prescribed by the Commissioner of Public Safety and shall promptly forward the license together with a sworn report to the Commissioner of Public Safety. The receipt given a person as provided herein shall be valid as a permit to operate a motor vehicle for a period of thirty (30) days in order that the defendant be processed through the court having original jurisdiction and a final Disposition had; provided, however, that if the defendant makes a written request directed to the trial Judge requesting that a trial be held on the matter within such thirty-day period and such defendant is not afforded a trial within such period, then the Commissioner of Public Safety shall issue such defendant a permit to drive that shall be valid for an additional thirty (30) days. If the defendant makes a written request to the trial Judge requesting that a trial be held on the matter prior to the expiration of such permit to drive and such defendant is not afforded a trial within such period, then the Commissioner of Public Safety shall issue such defendant a permit to drive for an additional thirty (30) days. In no event shall a defendant be permitted to drive under the provisions of this subsection for more than ninety (90) days after the initial seizure of such defendant's license. The fact that the defendant has the right to request a trial and the effect of a denial of such request shall be plainly stated on the face of any receipt or permit to drive issued such defendant. If a receipt or permit to drive issued pursuant to the provisions of this subsection expires without a trial having been requested as provided for in this subsection, then the Commissioner of Public Safety or his authorized agent shall suspend the license or permit to drive or any nonresident operating privilege for the applicable period of time as provided for in subsection (1) of this section.
Miss. Code Ann. § 63-11-23(2) (1992) (emphasis added). The procedure for actually suspending the license requires two steps. "First, in the appropriate administrative manner, [the Commissioner] must take the affirmative step of suspending that person's license or permit to drive." State v. Martin, 495 So. 2d 501, 503 (Miss. 1986). Second, the Commissioner "shall give notice to the licensee that his license or permit to drive . . . shall be suspended thirty (30) days after the date of such notice . . . for a period of one (1) year in the event of any previous conviction of such person under Section 63-11-30." Miss. Code Ann. § 63-11-23(1) (1992); Martin, 495 So. 2d at 502 (incorporating notice provision of § 63-11-23(1) into subsection (2)).
¶8. As this Court observed in Martin, this is a "not-too-artfully-worded statute." Id. It is clear, however, that within the ninety days following initial seizure of the license the triggering mechanism for suspension is the expiration of either of the temporary permits without a request by the defendant for a trial. In keeping with a strict construction of § 63-11-23(2), we hold that all a defendant needs to do is request a trial prior to the expiration of each temporary permit ...