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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1960%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1997
- **Citation:** 519 U.S. 1115

## Text

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1960%3A1. Public record. Not legal advice.