Own your ow legal marijuana business
Your guide to making money in the multi-billion dollar marijuana industry
Carl Olsen's Marijuana Archive
No. 383/94-1945
Filed January 17, 1996






     Appeal from the Iowa District Court for Polk County, Robert A.

Hutchison, Judge.

     Appeal from district count denial of petition for a writ of

certiorari challenging constitutionality of agency action under

Iowa Code section 321.2O9(8) (1995).  REVERSED AND REMANDED WITH


     William Jeffrey Crispin of Wilson & Adams, P.C., Des Moines, for


     Thomas J. Miller, Attorney General, David A. Ferree, Special

Assistant Attorney General, and Kerry Anderson, Assistant Attorney

General, for appellee.

     Considered by Harris, P.J., and Larson, Lavorato, Snell, and

Andreasen, JJ.

LAVORATO, Justice.

     Richard A. Dressler appeals from the district count's denial of

his Petition for a writ of certiorari against the Iowa Department of

Transportation (IDOT).  In his petition, Dressler challenges as

unconstitutional 1993 Iowa Acts chapter 16, section 4, codified at

Iowa Code section 321.2O9(8) (1995).  Section 321.2O9(8) authorizes

the IDOT to revoke the driver's license of a person convicted of

certain drug, drug tax, or drug-related offenses.

     We reach only DressIer's contention that section 321.2O9(8)

violates double jeopardy guarantees.  We conclude section 321.2O9(8)

is constitutionally infirm under the federal Double Jeopardy Clause.

We reverse the district court's order denying Dressler's petition for

a writ of certiorari.  We remand to allow the district court to enter

an order granting the writ.

     I.  Background Facts and Proceedings.

     In March 1994 Dressler pleaded guilty to the possession of a

controlled substance.  See Iowa Code  124.401(3).  About six weeks

later, the IDOT notified Dressler in writing that his driving

privileges were revoked for 180 days pursuant to Iowa Code section

321.2O9(8).  The notice also informed Dressler that he was not

entitled to a preliminary hearing on the matter.

     Dressler then filed a petition for a writ of certiorari with the

district court.  In the petition he asked the court to find section

321.209(8) unconstitutional on the three grounds he urges here.

Dressler appeals from the court's order dismissing the writ.

     II.  Scope of Review.

     A writ of certiorari is proper under Iowa Rule of Civil

Procedure 306 when one "exercising judicial functions . . . is

alleged to have . . . acted illegally."  Our review of certiorari

actions is generally at law.  Grant v. Iowa Dist. Ct., 492 N.W.2d

683, 685 (Iowa 1992).  Because Dressler alleges a constitutional

violation, our review is de novo.  State v. Clarke, 475 N.W.2d 193,
194 (Iowa 1991).

     III.  Applicable Law.

     Iowa Code section 321.2O9(8) pertinently provides that

          [t]he department shall upon twenty days' notice and
     without preliminary hearing revoke the license or operating
     privilege of an operator upon receiving a record of the
     operator's conviction for any of the following offenses,
     when such conviction has become final:
          [Sections 1-7 deal with vehicle-related offenses.]

          8.  A controlled substance offense under section
     124.401, 124.401A, 124.402 or 124.403; a controlled
     substance tax offense under chapter 453B; a drug or
     drug-related offense under section 126.3; or an offense
     under 21 U.S.C. ch. 13.

     IV.  Double Jeopardy.

     The Fifth Amendment to the federal constitution provides that no

person shall be subject for the same offence to be twice put in

jeopardy of life or limb."  U.S. Const. amend. V.  The protections

against double jeopardy are enforceable against the states through

the Fourteenth Amendment to the federal constitution.  Benton v.

Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 2062, 23 L.Ed.2d 707, 716


     The Double Jeopardy Clause is violated when (1) a second

prosecution for the same offense occurs after acquittal, (2) a second

prosecution for the same offense occurs after conviction, and (3)

multiple punishments occur for the same offense.  North Carolina v.

Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656, 664-

65 (1969); State v. Taft, 506 N.W.2d 757, 760 (Iowa 1993).

     Dressler's double jeopardy claim falls within the third

situation: multiple punishments occurring for the same offense.  He

contends the State impermissibly inflicted two punishments upon him

for the same offense-possession of a controlled substance.  Dressler

claims he was punished the first time when he was incarcerated and

paid a $250 fine and count costs for possession under section

124.401(3).  He claims he was punished a second time when the IDOT

notified him that, without the benefit of a hearing, his license was

revoked for 180 days.

     Dressler says that to escape double jeopardy concerns, a state

wishing to inflict postconviction punishment upon a defendant must do

so in a single proceeding.  He contends that was not the case here,

because the license revocation followed Dressler's initial conviction

and sentence under section 124.401(3).  This, he argues, constituted

multiple prosecution and punishment for the same offense in separate

proceedings,  constitutionally prohibited by federal double jeopardy


     To support his argument, Dressler relies heavily on two recent

United States Supreme Court decisions: United States v. Halper, 490

U.S. 435, 109 S.Ct. 1892, 104 L.Ed.24 487 (1989), and Montana

Department of Revenue v. Kurth Ranch, 511 U.S. ___, 114 S.Ct. 1937,

128 L.Ed.2d 767 (1994).  In Halper, the Court held that a civil

penalty, imposed after a criminal penalty, may constitute a second

punishment for double jeopardy purposes

     when the sanction as applied in the individual case serves
     the goals of punishment.
          These goals are familiar.  We have recognized in
     other contexts that punishment serves the twin aims of
     retribution and deterrence.  Furthermore, "[r]etribution
     and deterrence are not legitimate nonpunitive governmental
     objectives."  From these premises, it follows that a civil
     sanction that cannot fairly be said solely to serve a
     remedial purpose, but rather can only be explained as also
     serving either retributive or deterrent purposes, is
     punishment, as we have come to understand the term.  We
     therefore hold that under the Double Jeopardy Clause a
     defendant who alreadv has been punished in a criminal
     prosecution may not be subjected to an additional civil
     sanction to the extent that the second sanction may not
     fairly be characterized as remedial, but only as a deterrent
     or retribution.

Halper, 490 U.S. at 448-49, 109 S.Ct. at 1901-02, 104 L.Ed.2d at 501-

02 (citations omitted).

     In Kurth Ranch, the Court had before it a postconviction drug

tax assessment.  Employing a different analysis from that articulated

in Halper, the

Court held that the tax constituted a second punishment.  For that

reason, the tax had to be imposed during the first prosecution or not

at all.  The Court characterized the postconviction proceeding to

collect a tax as "the functional equivalent of a successive criminal

prosecution that placed the Kurths in jeopardy a second time 'for the

same offence.'"  Kurth Ranch, 511 U.S. at ___, 114 S.Ct. at 1948, 128

L.Ed.2d at 782.  Simply put, as Dressler says, "a state wishing to

inflict postconviction punishment on a defendant must do so in a

single proceeding.  Otherwise, punishment following an initial

conviction and sentencing is barred as double jeopardy."

     The question boils down to whether the license revocation is

punitive or remedial.

     The State concedes Dressler was sanctioned in the criminal case

before his license was revoked in a civil proceeding under section

321.2O9(8).  But the State argues the subsequent revocation of

Dressler's license is not subsequent punishment for possession of a

controlled substance under section 124.401(3).  The State strongly

asserts that the underlying purpose of section 321.2O9(8) is remedial

rather than punitive, designed solely for the safety of the public.

For that reason, the State concludes, no double jeopardy violation


     We think the question whether the revocation was punitive rather

than remedial is controlled by our recent decision in Hills v. Iowa

Department of Transportation, 534 N.W.2d 640 (Iowa 1993).  In Hills,

the defendant was arrested for operating a motor vehicle while

intoxicated.  After a search incident to arrest, the defendant was

also charged with possession of marijuana.  See Iowa Code 

124.401(3).  Before the defendant's pretrial conference -- at which

the defendant intended to plead guilty to the possession charge --

section 321.2O9(8) became effective.  As a consequence, the IDOT

revoked the defendant's license

over her objection that to do so was an ex post facto application of

section 321.2O9(8).

     On judicial revIew of the IDOT's decision, the district court

reversed.  On appeal the IDOT argued that ex post facto protections

did not apply to a revocation based on a controlled substance

violation, because the revocation was a civil, rather than criminal,

penalty.  See State v. Taggart, 186 Iowa 247, 254, 172 N.W. 299, 301

(1919) (ex post facto protections apply only to penal and criminal

actions, not civil actions).  This is the same argument the State

posits against Dressler's double jeopardy claim here.

     In rejecting this argument in Hills, we said the answer turned

on whether the legislative purpose underpinning the controlled

substance revocation is promotion of highway safety.  In concluding

there was no direct connection between possession of controlled

substances, driving, and public safety, we said that

     [p]ersons who illegally possess drugs are of course subject
     to appropriate criminal punishment.  But many such persons
     choose not to drive.  When they do not, they do not affect
     highway safety.  Any connection between drugs, driving, and
     public safety is at most indirect.  The amended statute
     authorizing this license revocation was aimed essentially at
     enhancing punishmen for controllcd substance possession.

Hills, 534 N.W.2d at 642 (emphasis added).

     Our conclusion in Hills that section 321.209(8) enhances

punishment of a controlled substance possession dispenses with the

State's assertion that this section is not a penal statute.  Because

section 321.2O9(8) twice punishes Dressler for the same offense --

possession of a controlled substance -- in a separate proceeding, we

conclude it unconstitutionally contravenes Dressler's double jeopardy


     V.  Disposition.

     We conclude that section 321.2O9(8) violates double jeopardy

principles by twice punishing Dressler for possession of a controlled

substance in separate

proceedings.  We therefore reverse the district court's order denying

Dressler's petition for a writ of certiorari.  We remand to allow the

district court to enter an order granting the writ.

Library Highlights

Drug Information Articles

Drug Rehab