ANNE W. LUK vs. COMMONWEALTH.

ABRAMS, J. Anne W. Luk's driver's license was suspended for 180 days because she refused to take a breathalyzer test. [Note 1] The Commonwealth also charged her with operating a motor vehicle while under the influence of intoxicating liquor (OUI). See G. L. c. 90, Section 24 (1) (a) (1) (1994 ed.). Luk moved to dismiss the OUI complaint asserting that to prosecute her on that complaint would violate the prohibition against double jeopardy contained in the Fifth Amendment to the United States Constitution, [Note 2] as well as the common and statutory law of the Commonwealth. [Note 3] The trial judge denied Luk's motion to dismiss. The judge ruled that Luk's refusal to take a breathalyzer test was a matter that would not be relitigated at the criminal trial and therefore double jeopardy principles did not apply.

Pursuant to G. L. c. 211, Section 3 (1994 ed.), Luk correctly sought relief from a single justice of this court. See, e.g.,

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Kater v. Commonwealth, ante 17, 19 (1995); Cramer v. Commonwealth, 419 Mass. 106, 107 n.1 (1994); Koonce v. Commonwealth, 412 Mass. 71, 72 (1992). See also S.J.C. Rule 2:21, post 1303 (1995) (effective Nov. 15, 1995). The single justice denied relief. Luk appeals. We affirm the judgment of the single justice.

I. Facts. At approximately 2:20 A.M. on December 10, 1994, Wayland police Sergeant Daniel Sauro witnessed a red two-door Honda automobile drive off the road, ride over grass, and strike a stone wall. Luk was the sole occupant of the vehicle. Sauro approached the vehicle and determined that Luk appeared intoxicated. [Note 4] He asked Luk to take a breathalyzer test. Luk refused. The officer confiscated her license in accordance with Section 24 (1) (f) (1). [Note 5] Luk was issued

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a fifteen-day temporary driver's license and informed of her right to a hearing before the Registrar of Motor Vehicles (registrar).

On January 7, 1995, the registrar held a hearing regarding the suspension of Luk's license. The hearing officer upheld the suspension. Luk sought review in the District Court pursuant to G. L. c. 90, Section 24 (1) (g). The District Court, after hearing, affirmed the decision of the registrar. Luk filed a claim of appeal.

On December 12, 1994, Luk was charged in the Framingham Division of the District Court Department with operating a motor vehicle while under the influence of intoxicating liquor. Luk filed a motion to dismiss asserting that a criminal prosecution would be in violation of double jeopardy principles. After her motion was denied by the trial judge and the single justice, Luk admitted to sufficient facts to warrant a finding of guilty. [Note 6] The matter was continued without a finding until April 17, 1996. The judge required Luk to complete a driver alcohol education program pursuant to G. L. c. 90, Section 24D (1994 ed.), and suspended her driver's license for forty-five days. See note 7, infra.

On April 28, 1995, Luk received notice from the registrar of an additional two-year license suspension because she had previously been convicted under G. L. c. 90, Section 24. On June 7, 1995, the Board of Appeal on Motor Vehicle Liabil-

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ity Policies and Bonds affirmed the registrar's decision to suspend Luk's license for the additional two-year period. [Note 7]

II. Double jeopardy. The double jeopardy clause of the Fifth Amendment to the United States Constitution protects against three distinct abuses: a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717 (1969). [Note 8] It is the third protection that is at issue here. In order to show multiple punishments for double jeopardy purposes, a defendant must show the following three things: first, the administrative license suspension (ALS) imposed on her pursuant to c. 90, Section 24 (1) (f) (1), is "punishment"; second, the postrefusal license suspension results from the "same offense" for which she is subsequently being criminally punished; and third, the administrative license suspension and criminal case are "separate proceedings." Department of Revenue of Mont. v. Kurth Ranch, 114 S. Ct. 1937, 1945 (1994).

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A. Case law. Historically, previous criminal prosecution has not been considered a bar to subsequent civil action unless the objective of the civil action was punishment. [Note 9] See Helvering v. Mitchell, 303 U.S. 391, 398-399 (1938). It was constitutionally permissible for a State to impose both criminal and civil sanctions for the same act or omission; the double jeopardy clause required only that the State not punish nor attempt to punish twice for the same offense. Mitchell, supra at 399. Because it is not disputed that the criminal prosecution in this case resulted in punishment, the question is whether the ALS pursuant to c. 90, Section 24 (1) (f) (1), barred that punishment as an impermissible second punishment for the offense of OUI.

In Mitchell, supra, the Supreme Court first announced the "statutory construction" test for determining whether a civil sanction is "punishment." This test required that the Court ask two questions. "First, we have set out to determine whether Congress, in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other. . . . Second, where Congress has indicated an intention to establish a civil penalty, we have inquired further whether the statutory scheme was so punitive either in purpose or effect as to negate that intention." United States v. Ward, 448 U.S. 242, 248-249 (1980). With regard to the second inquiry, the Court has stated that "only the clearest proof could suffice to establish the unconstitutionality of a statute on such a ground." Flemming v. Nestor, 363 U.S. 603, 617 (1960).

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The statutory construction test was thus very deferential to the Legislature.

The appropriate analysis was redefined in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169 (1963). [Note 10] Kennedy listed seven factors to consider in determining if a statute imposes punishment. The factors were (1) whether the sanction involves an affirmative disability or restraint; (2) whether it has historically been regarded as punishment; (3) whether it comes into play only on a finding of scienter; (4) whether its operation will promote the traditional aims of punishment retribution and deterrence; (5) whether the behavior to which it applies is already a crime; (6) whether an alternative purpose to which it may be rationally connected is assignable for it; and (7) whether it appears excessive in relation to the alternative purpose assigned. The Kennedy factors are useful, although neither exhaustive nor dispositive in double jeopardy analysis. [Note 11]

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In United States v. Halper, 490 U.S. 435, 448 (1989), the United States Supreme Court determined that the double jeopardy clause requires a "particularized assessment of the penalty imposed and the purposes that the penalty may fairly be said to serve." The Supreme Court held that the statutory construction test is "not well suited to the context of the `humane interests' safeguarded by the Double Jeopardy Clause's proscription of multiple punishments." Id. at 447. Under Halper, the labels "civil" and "criminal" are not dispositive. Id. Civil sanctions are punishment only if they cannot be explained without reference to a retributive or deterrent purpose. Double jeopardy is not implicated if the sanctions can be entirely explained by a nonpunitive purpose. [Note 12] Halper announced "a rule for the rare case." Halper, supra at 449. It cautioned that double jeopardy should only be found in those cases where the civil sanction imposed for the same actions on which a criminal penalty has previously been imposed is overwhelmingly disproportionate to remedial aims. Id.

Post-Halper, the Supreme Court decided Department of Revenue of Mont. v. Kurth Ranch, supra, Kurth Ranch involved the constitutionality of a drug tax imposed after the conclusion of a prosecution against the criminal defendants based on possession of the same drugs. Although the Supreme Court relied on some of the factors from Kennedy and Halper [Note 13] in invalidating the drug tax, it expressly limited Kurth Ranch to tax cases. Kurth Ranch, supra at 1948. See State v. Toriello, 71 Ohio Misc. 2d 81, 84 (1995) ("The court finds that the facts and circumstances of Kurth Ranch

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are distinguishable from an ALS followed by a criminal prosecution for [an OUI] offense").

With this backdrop, we proceed to analyze the Massachusetts administrative license suspension statute under the above principles of double jeopardy.

B. The Massachusetts administrative license suspension statute: G. L. c. 90, Section 24 (1) (f) (1). In Massachusetts, one's right to operate a motor vehicle is a privilege voluntarily granted. See Roberto v. Department of Pub. Utils., 262 Mass. 583, 588 (1928) ("The certificate [to operate motor vehicle on specified route] was a privilege. It was neither a contract nor property, and its revocation deprived the petitioner of no vested rights"). Continued possession of this privilege is conditioned on obedience to the Legislature's comprehensive regulatory scheme aimed at regulating the motorways and keeping them safe. Helvering v. Mitchell, supra at 399, held that "[r]emedial sanctions may be of varying types. One which is characteristically free of the punitive criminal element is revocation of a privilege voluntarily granted." This portion of Helvering v. Mitchell is undisturbed by more recent changes in double jeopardy jurisprudence.

Revocation of this privilege has long reflected public safety concerns. The first statute requiring drivers' licenses was promulgated in 1903. [Note 14] Even then, one could obtain a driver's license only on "pass[ing] such examination as to his qualifications as may be required by the state highway commission," St. 1903, c. 473, Section 4, and one's driver's license was revoked for "operat[ing] an automobile or motor cycle . . . recklessly or while under the influence of intoxicating liquor or so as to endanger the lives or safety of the public." St. 1906, c. 412, Section 4.

Mandatory license suspension is but one of several provisions of the motor vehicle laws aimed at preserving public safety. The regulatory scheme provides for residential and

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out-patient alcohol treatment programs, written and practical tests on the rules of the road, safety features in motor vehicles, as well as annual inspections of motor vehicles. G. L. c. 90, Sections 7, 7A, 8, 24 (1) (a) (4). See Gordon v. Bedard, 265 Mass. 408, 412 (1929) (driver's licensing statute "was passed to make roads more safe and convenient for travellers"). Massachusetts courts have recognized the public safety objective of portions of G. L. c. 90. See Commonwealth v. Dowler, 414 Mass. 212, 215 n.6 (1993) (main function of G. L. c. 90, Section 24, is to improve public safety by removing drivers under the influence of alcohol from the Commonwealth's roads). See also Commonwealth v. Callen, 26 Mass. App. Ct. 920, 922 (1988) (person charged with drunken driving who "turns up with [high] blood alcohol content must be thought of as a menace to public safety"; "it makes sense to relieve him of his license"). See also Commonwealth v. Thorpe, 13 Mass. App. Ct. 906, 907 (1982) ("The suspension or revocation of a license is not `punishment' for the purposes of G. L. c. 90, Section 20 . . . ").

Chapter 90, Section 24 (1) (f) (1), provides that "[w]hoever operates a motor vehicle upon any way . . . shall be deemed to have consented to submit to a chemical test or analysis of his breath or blood in the event that he is arrested for operating a motor vehicle while under the influence of intoxicating liquor . . . ." The police are to provide the arrested person with an opportunity to take or to refuse to take the breath or blood test and inform him that if he refuses his license will be suspended by the registrar. If he refuses, the police must provide the arrested person with a notice from the registrar of intent to suspend the license. The individual whose license is suspended is entitled to a hearing before the registrar within fifteen days of arrest. [Note 15] A temporary license is pro-

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vided for the duration of this fifteen-day period, effective twelve hours after issuance. If the registrar finds that the police acted properly, the license is suspended for 120 days for a first offense, 180 days for a second offense, and for progressively longer periods of time for each additional offense under c. 90, Section 24.

The remedial purpose of c. 90, Section 24 (1) (f) (1), was expressly recognized by the United States Supreme Court in Mackey v. Montrym, 443 U.S. 1, 15 (1979). The Court stated: "The Commonwealth must have the authority, if it is to protect people from drunken drivers, to require that the breath-analysis test record the alcoholic content of the blood-stream at the earliest possible moment." This purpose is served in various ways by the suspension of a driver's license on arrest. The suspension serves to deter persons from driving while intoxicated; it effectuates the Commonwealth's interest in obtaining reliable and relevant evidence by inducing suspected drunk drivers to take the breath test; and it promotes safety on the highways by summary removal of dangerous drivers. Id. The ALS is not overwhelmingly disproportionate to its remedial purposes or the harm caused society by drunk drivers. See South Dakota v. Neville, 459 U.S. 553, 558 (1983) ("The carnage caused by drunk drivers is well documented . . ."). Most other States also have recognized the remedial, nonpunitive nature of administrative license suspensions. [Note 16]

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License revocation is akin to a restraining order or injunction. Its purpose is to protect the public from future harm by

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depriving the unsafe or irresponsible driver of his or her authority to continue to operate a motor vehicle. Because its main purpose is public safety rather than punishment, revocation of a driver's license is properly characterized as nonpunitive.

In other contexts, license revocation is recognized as a public safety measure rather than punishment. As early as 1933, the Justices recognized the nonpunitive purposes of licensing businesses and activities that could result in danger to the public. See Opinion of the Justices, 282 Mass. 619, 626 (1933) ("Necessary and lawful business of a nature liable, in the absence of regulation and supervision, to harm the public health, the public safety, or the public morals, may be required to be licensed"). Accord Piro v. National Transp. Safety Bd., 66 F.3d 335 (9th Cir. 1995) (loss of pilot's license not punishment as it bears rational relationship to gov-

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ernment's interest in promoting air safety). Additionally, loss of a professional license in an administrative proceeding is not "punishment" for double jeopardy purposes. See Kvitka v. Board of Registration in Medicine, 407 Mass. 140, 146 n.4, cert, denied, 498 U.S. 823 (1990) ("We note that revocation of a physician's license is considered to be remedial under the double jeopardy clause"); Feldstein v. Board of Registration in Medicine, 387 Mass. 339, 341-342 (1982); Arthurs v. Board of Registration in Medicine, 383 Mass. 299, 316-317 (1981). See also People v. Marmon, No. 95SA442 (Colo. Sept. 11, 1995) (disbarment serves public safety purpose).

Other losses of privileges have similarly been recognized as regulatory rather than punitive. United States v. Hudson, 14 F.3d 536, 541-542 (10th Cir. 1994) (revocable ban from participation in banking activities); United States v. Bizzell, 721 F.2d 263, 267 (10th Cir. 1990) (debarment from participation in Federal program); United States v. Furlett, 974 F.2d 839, 844-845 (7th Cir. 1992) (trading ban prohibiting defendant from trading on any contract market); No Illegal Points, Citizens for Drivers Rights, Inc. v. Florio, 264 N.J. Super. 318, cert. denied, 134 N.J. 479 (1993) (point system for motor vehicle violations).

Licenses are not only revoked because of criminal activity. Drivers' licenses may be revoked for a variety of noncriminal offenses including misuse of license and identification cards, nonsatisfaction of judgments, incompetency, failure to pay child support, and "whenever the holder [of the license] has committed a violation of the motor vehicle laws of a nature which would give the registrar reason to believe that continuing operation by such holder is and will be so seriously improper as to constitute an immediate threat to the public safety." G. L. c. 90, Section 22 (a) (1994 ed.). Thus, drivers' licenses may be revoked whenever the registrar believes that failure to revoke an operator's license will compromise public safety. The State's right to regulate licensing, of course, is constrained by due process limitations. See Mackey v. Montrym, 443 U.S. 1, 10 n.7 (1979); Registrar of Motor Vehicles v. Board of Appeal on Motor Vehicle Liab. Policies & Bonds, 382 Mass. 580, 589 (1981).

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Luk argues that, because temporary suspension of the driver's license of a person who refuses to take a blood test is not the best way of insuring safe highways, public safety could not have been the purpose behind license suspension. The Legislature has chosen an effective way of dealing with the problem of driving while intoxicated. The United States Department of Transportation, National Highway Traffic Safety Administration, has estimated that hundreds of lives are saved annually in this country because of administrative license revocation. See Traffic Tech, NHTSA Technology Transfer Series No. 24 (Mar. 1992). The decision of which is the most effective way of dealing with this pervasive problem is left to the Legislature. Mackey v. Montrym, supra at 16-17. See Matter of Saab, 406 Mass. 315, 324 n.13 (1989), quoting Mackey, supra at 13 ("The Due Process Clause simply does not mandate that all governmental decisionmaking comply with standards that assure perfect, error-free determinations"). We note that empirical evidence indicates that of the three types of sanctions available under Section 24 -- confinement, fine, and license suspension -- suspension is the most effective for purposes of general deterrence of OUI. Jiang Yu, Punishment Celerity and Severity: Testing a Specific Deterrence Model on Drunk Driving Recidivism, 22 J. Crim. Just. 355, 356 (1994).

We reject Luk's additional argument that because the length of the suspension increases with the number of one's convictions under c. 90, Section 24, not the number of times an operator refuses a breath test, the suspension is punishment for a suspected violation of c. 90, Section 24. Luk ignores statistical evidence that the number of previous arrests for driving while intoxicated increases the risk to public safety. See Traffic Tech, NHTSA Technology Transfer Series No. 85 (Feb. 1995) (Approximately one-third of all drivers arrested or convicted of OUI each year are repeat OUI offenders. Drivers with prior OUI convictions are also overrepresented in fatal crashes and have a greater relative risk of fatal crash

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involvement. The risk increases with the number of prior OUI arrests). See also State v. Uncapher, 70 Ohio Misc. 2d 4, 18-19 (1995) (length of suspension proportionate to degree of risk to the public; presumed that multiple drunk driving offenders are an increasingly greater risk to public safety with each offense).

Because we conclude that the Massachusetts administrative license suspension law is a reasonable sanction primarily designed to promote public safety, we hold that Massachusetts may suspend a license pursuant to c. 90, Section 24 (1) (f) (1), and later bring criminal charges under c. 90, Section 24 (1) (a) (1), without running afoul of the double jeopardy clause of the United States Constitution or Massachusetts common or statutory law.

C. Separate offenses. Double jeopardy is only violated if multiple prosecutions are brought or multiple punishments are imposed for the same offense. If the defendant is being twice punished for distinct offenses, double jeopardy is not offended. See Commonwealth v. Diaz, 383 Mass. 73, 84 (1981); Commonwealth v. Burston, 35 Mass. App. Ct. 355, 358 (1993). Operating under the influence and refusal to submit to a chemical test of the breath are distinct offenses. Neither offense requires the same elements nor the same conduct as the other.

The crime of operating while under the influence requires: (1) operation of a vehicle, (2) on a public way, (3) under the influence of alcohol. [Note 17] Commonwealth v. O'Connor, 420 Mass. 630, 631 (1995). The offense of refusing to submit to a blood or breath test as sanctioned by G. L. c. 90,

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motor vehicle while under the influence of intoxicating liquor on a public way; (2) the individual was placed under arrest; and (3) such person refused to submit to a blood or breath test.

The offense of driving while intoxicated does not require that a breath or blood test be requested and refused. Evidence of refusal to submit to a blood test is inadmissible in the criminal prosecution. Commonwealth v. McGrail, 419 Mass. 774, 780 (1995). See Opinion of the Justices, 412 Mass. 1201 (1992) (refusal evidence is compelled and requires a citizen to furnish evidence against oneself, and that, therefore, admission of evidence of refusal is unconstitutional under art. 12 of Massachusetts Declaration of Rights).

The offense of refusing to submit to a breath or blood test does not require that the person actually be under the influence of alcohol. Evidence that the individual was driving while intoxicated is irrelevant in the refusal hearing. It is the refusal to submit to the breath or blood test that is determinative. Because each offense requires something that the other does not, they are not the same offense for purposes of double jeopardy. See Morey v. Commonwealth, 108 Mass. 433, 434 (1871). See also Commonwealth v. Woods, 414 Mass. 343, 350-351 (1993). Accord State v. Uncapher, 70 Ohio Misc. 2d 4, 17 (1995) (in the case of refusal to take chemical test, the one-year suspension stands regardless of the driver's state of impairment, "excepting only that the officer have probable cause" to make an arrest; matter not subject to double jeopardy analysis); State v. Fitzgerald, No. 950158 (Ohio Ct. App. November 22, 1995); State v. Sims, No. 94-12-215 (Ohio Ct. App. Aug. 12, 1995).

The Legislature specifically authorized separate sanctions for these separate offenses. The Legislature's direction is entitled to enforcement absent constitutional infirmity. See Rushworth v. Registrar of Motor Vehicles, 413 Mass. 265, 273-274 (1992). Even if the administrative license suspension were considered to be punishment, principles of double jeopardy are not violated when a person's license is suspended

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pursuant to c. 90, Section 24 (1) (f) (1), and that person is later criminally prosecuted for the offense of operating a motor vehicle while under the influence of alcohol. If "punished" at all, she is being "punished" for two separate offenses, a situation which the double jeopardy clause does not prohibit. [Note 18] See Morey, supra.

Judgment affirmed.