Petition for Writ of Certiorari — Archuleta v. City of Farmington

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In the Supreme Court of the United States

OCTOBER TERM, 1996

RAUL ARCHULETA,

Petitioner,

CITY OF FARMINGTON,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF NEW MEXICO

Victor A. Titus

(Counsel of Record)

Titus & Murphy Law Firm

2021 E. 20th Street

Farmington, NM 87401

Tel. (505) 326-6503

Attorney for Petitioner

_POREREHL RO ENE RUE NEN RE RE UATE A AUB NIN RTPI RINT OE NE IO ETN NNT,

QUESTION PRESENTED FOR REVIEW

Whether federal law prohibiting double jeopardy bars a sub-

sequent criminal prosecution when defendant has already been pun-

ished by driver's license revocation from the same conduct?

TABLE OF CONTENTS

QUESTION PRESENTED ........cccccccccsccccvecnces I

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STATUTES AND REGULATIONS ............---eeeeeeee 1

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REASONS FOR GRANTING THE WRIT—

The petitioner had a revocation of his driving privileges by the

MVD prior to adjustication and sentencing in this criminal

case. Petitioner claims this is double jeopardy, contrary to

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APPENDIX—

Order denying Petitioner's Petition for Writ of Certiorari ...A1

Opinion from the New Mexico Court of Appeals in

Archuleta v. City of Farmington which is being appealed . .A2

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TABLE OF AUTHORITIES

Case Law

Austin v. United States, 113 S.Ct. 2801 (1993) ............. 3

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Rack. x tithes Siaiee, coal US. 1 ages OR Ne 3

120 N.M. 619, 904 P-2d 1044 (1995) .................. 4

United States v. $405.089..23 U.S, Currency,

SE PU TT ETI) ore vet nccedeecccectscsncs 3

United States v. Halper, 490 U.S. 335 (1989) ............... 3

United States v. McCaslin,

836 F.Supp.1299 (W.D. Wash., 1994) .................. 3

Constitutions

Amendment IV, U.S. Conatifution ..........ccccccsccccces 2

Art. ll, sec. 15, New Mexico Constitution .................. 3

Statutes

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§19-30(b), City of Farmington Regulations ................ 1

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Other

United States v, Usery, 1996 W.L. 340815 (US) ............. 4

No.

in the Supreme Court of the United States

OCTOBER TERM, 1996

RAUL ARCHULETA,

Petitioner,

vs.

CITY OF FARMINGTON,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT

OPINIONS BELOW

The opinion of the New Mexico Court of Appeals is

unreported and appears in the appendix to this Petition for a Writ of

Certiorari at Pet. App. A2 through A3. The order of the Supreme

Court of New Mexico is unreported and appears at Pet. App. A1.

JURISDICTION

The order of the Supreme Court of New Mexico was issued

on June 20, 1996 denying certiorari. This Court has jurisdiction pur-

suani to 28 U.S.C. § 1251.

STATUTES AND REGULATIONS

§66-8-102 New Mexico DUI statute

§19-30(b) City of Farmington ordinance on failure sub-

mit to breath test

§66-8-112 New Mexico License Revocation statute

§66-8-107 New Mexico Implied Consent Act

2

STATEMENT OF THE CASE

On June 5, 1993, Plaintiff was arrested and charged with the

offense of Driving Under the Influence of intoxicating Liquors or

Drugs (DUI), and criminal refusal to submit to a breath test. Plaintiff

was also given a notice of revocation of his driver's license by the offi-

cer, which informed Plaintiff that unless a New Mexico motor vehicle

department (MVD) hearing was requested within ten (10) days of the

arrest, the MVD would automatically revoke Plaintiff's license for fail-

ure to submit to a breath test. Mr. Archuleta requested an MVD hear-

ing, at which his driver's license revocation was sustained by the

hearing officer. As a result of the administrative hearing, Plaintiff has

fully served a one-year revocation period of his driver's license for

refusal to take the breath test in the investigation of his DUI. in a sep-

arate proceeding, Plaintiff went to trial on the DUI criminal charge

arising out of the same facts (the prosecutor filed a nolle prosequi on

the criminal charges of refusal to submit to a breath test), was found

guilty, and sentenced to ninety days in the San Juan County

Detention Center with eighty-seven days suspended upon comple-

tion of DWI school. Upon motion after the conviction, the court

refused to dismiss the criminal charges under the double jeopardy

clause because of the prior MVD punishment. Plaintiff subsequent-

ly appealed first to the New Mexico Court of Appeals, then to the

New Mexico Supreme Court, both of which denied the appeal sum-

marily based on existing New Mexico case law.

REASONS FOR GRANTING THE WRIT

The plaintiff had a revocation of his driving privileges by the

MVD prior to adjudication and sentencing in this criminal case.

Plaintiff claims this is double jeopardy contrary to federal law.

Amendment IV, U.S. Constitution provides:

...Mnor shall any person be subject for the same offence

[sic] to be twice put in jeopardy of life or limb ...

3

Art. Il, sec. 15, New Mexico Constitution:

. .. Mor shall any person be twice put in jeopardy for the

same offense; and when the indictment, information or

affidavit upon which any person is convicted charges

different offenses or different degrees of the same

offense and a new trial is granted the accused, he may

not again be tried for an offense or degree of the offense

greater than the one of which he was convicted.

Federal Case Law

“Double jeopardy” stands for the legal proposition that prohibits

citizens from being prosecuted and punished for the same offense in

two or more separate proceedings. That protection applies with

equal force regardiess of whether the first prosecution results in a

conviction or an acquittal. See, Burks v, United States, 437 U.S. 1

(1978); Brown v, Ohio, 432 U.S. 161 (1971).

[A] civil sanction that cannot fairly be said solely to serve

a remedial purpose, but rather can only be explained as

also serving either a retributive or deterrent purposes

is punishment, as we have come to understand the

term. United States v. Halper, 490 U.S. 335, 488 (1989)

[emphasis added].

United States v. $405,089.23 U.S. Currency, 33 F.3d 1210, 1219

(9th Cir. 1994), citing Austin v. United States, 113 S.Ct. 2801, 2806,

2812 (1993). Thus, the proper analysis of whether or not double

jeopardy attaches turns of this court determining whether a penalty

is punitive and therefore punishment, or the penalty is simply

remedial and not punishment.

Civil action can bar criminal action, as in United States vy.

McCaslin 836 F.Supp. 1299 (W.D. Wash., 1994); Dept. of Revenue of .

Montana v. Kurth Ranch, 119 S.Ct.1937 (1994).

4

The Court in Kurth Ranch identified six features to the Montana

Statute which compelled the conclusion that the tax on an illegal

drug sale was “punishment.” They are:

1.

The tax had a deterrent or punitive purpose and not

solely remedial.

The tax was conditioned on the commission of a

crime.

The tax was enacted after a person was arrested for

the precise conduct that gave rise to the tax

obligation in the first place.

Person arrested for possession of marijuana

constituted the entire class of those persons subject

to the tax.

The tax was imposed.by the same sovereign which

exacted the criminal sanction.

The tax was not imposed at the same proceeding as

the criminal sanction.

Compare: United States v. Usery, 1996 W.L. 340815 (US). (in rem

civil forfeitures are neither “punishment” nor criminal for purposes of

the Double Jeopardy clause).

In State, ex rel. Schwartz v. Kennedy, 120 N.M. 619, 904 P.2d 1044

(1995), the New Mexico Supreme Court found:

We conclude that - despite its deterrent effect -- revocation of

a person’s driver's license based on the conduct of either fail-

ing to take a chemical test or refusing to take a chemical test

under the circumstance

stated in Section 66-8-107 is consistent with the

government's goals in implementing the implied Consent

Act and is therefore remedial, not punitive, for the

purposes of the Doubie Jeopardy Ciause.

We hold that administrative driver's license revocation

under the Implied Consent Act does not constitute

“punishment” for the purposes of the Double Jeopardy

Clause.

CONCLUSION

For all the above reasons, Petitioner respectfully requests that

Court grant this Petition for a Writ of Certiorari.

Victor A. Titus (Counsel of Record)

Titus & Murphy Law Firm

2021 E. 20th Street

Farmington, NM 87401

Tel. (505) 326-6503

Attorney for Petitioner

i an

6

CERTIFICATE OF SERVICE

| hereby certify that a true and correct copy of the foregoing

Petition for a Writ of Certiorari to the Supreme Court of New Mexico

was mailed to the United States Supreme Court, 1 First Street, |

Washington, DC 20543; to the Honorable Joseph L. Rich, 201 S. Hill

Street, Gallup, New Mexico, 87301; Court Monitor to Judge Rich,

201 S. Hill Street, Gallup, New Mexico, 87125; and John Lewis,

Attorney for City of Farmington, 800 Municipal Drive, Farmington,

New Mexico 87401, this 13th day of Septem 1996.

VICTOR A. TIKUS

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APPENDIX

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Thursday, June 20, 1996

No, 23, 668

CITY OF FARMINGTON,

Plaintiff-Respondent,

VS.

RAUL ARCHULETA,

Defendant-Petitioner.

ORDER

This matter coming on for consideration by the Court upon

petition for writ of certiorari, and the Court having considered said

petition, and being sufficiently advised;

NOW, THEREFORE, IT iS ORDERED that petition for writ of

certiorari is denied In Court of Appeals number 17225.

ATTEST: A True Copy

KATHLEEN JO GIBSON

CLERK OF THE SUPREME COURT

By [S/

Chief Deputy

A2

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

CITY OF FARMINGTON,

Plaintiff-Appellee,

vs. No. 17,225

San Juan County

CR 93-426-2

RAUL ARCHULETA,

Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY

JOSEPH L. RICH, District Judge

JOHN H. LEWIS

Assistant City Attorney

Farmington, New Mexico Attorney for Plaintiff-Appellee

VICTOR A. TITUS

TITUS & MURPHY

Farmington, New Mexico = Attorneys for Defendant-

Appellant }

MEMORANDUM OPINION

Bustamante, Judge.

Defendant appeals from the denial of his post-conviction

double jeopardy motion to dismiss. Our calendar notice proposed

summary affirmance, and Defendant filed a memorandum in

opposition. We affirm.

Defendant’s argument in opposition to our proposed

affirmance of his issue on appeal is made pursuant to State v.

Franklin, 78 N.M.127, 129, 428 P.2d 982, 984 (1967), and State v.

Boyer, 103 N.M. 655, 658-60, 712 P.2d 1, 4-6 (Ct. App. 1985). We

have considered the arguments Defendant has made in his

docketing statement and memorandum in opposition. These

A3

arguments do not persuade us that affirmance is not the correct dis-

position. See also State v. Mondragon, 107 N.M. 421, 423, 759 P.2d

1003, 1005 (Ct. App.), cert. denied, 107 N.M. 267, 755 P.2d 605

(1988).

We affirm.

IT iS SO ORDERED.

ls/_

MICHAEL D. BUSTAMANTE, Judge

WE CONCUR:

l[s/

LYNN PICKARD, Judge

/s/

BENNY E. FLORES, Judge