          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                           AT NASHVILLE
                      FEBRUARY SESSION, 1997        FILED
                                                     August 22, 1997

                                                 Cecil Crowson, Jr.
                                                    Appellate C ourt Clerk



STATE OF TENNESSEE,        )
                           )    No. 01C01-9605-CC-00211
      Appellee             )
                           )    STEWART COUNTY
vs.                        )
                           )    Hon. ROBERT E. BURCH, Judge
RONNIE O. ROWLETT,         )
                           )    (Motor Vehicle Habitual Offender)
      Appellant            )



For the Appellant:              For the Appellee:

DENTY CHEATHAM                  CHARLES W. BURSON
Cheatham & Palermo              Attorney General and Reporter
43 Music Square West
Nashville, TN 37203             KAREN M. YACUZZO
                                Assistant Attorney General
                                Criminal Justice Division
                                450 James Robertson Parkway
                                Nashville, TN 37243-0493


                                DAN MITCHUM ALSOBROOKS
                                District Attorney General

                                GEORGE C. SEXTON
                                Asst. District Attorney General
                                Post Office Box 580
                                Charlotte, TN 37036




OPINION FILED:

AFFIRMED



David G. Hayes
Judge
                                                OPINION



         The appellant, Ronnie O. Rowlett, appeals from the Stewart County

Circuit Court's order declaring him a motor vehicle habitual offender pursuant to

Tenn. Code Ann. § 55-10-601 et seq. (1993).1 The grounds for declaring the

appellant a motor vehicle habitual offender are not in dispute. The appellant

concedes that he was convicted of reckless driving in 1989; driving on a revoked

license in 1990; driving without a license in 1992; and driving under the influence

in 1994. The sole issue presented for review is whether the adjudication of a

defendant as an habitual motor vehicle offender and the resulting revocation of

his driver's license constitutes double jeopardy.



         The appellant initially acknowledges that the Tennessee Supreme Court

has previously decided this issue in State v. Conley, 639 S.W.2d 435, 436-437

(Tenn. 1982) (holding that a proceeding to have a defendant declared an

habitual offender and to have his driving privileges revoked does not subject him

to double jeopardy). In Conley, the court observed that the revocation of a

license was "nothing more than the deprivation of a privilege, . . . 'remedial in

nature,' and . . . not intended to have the effect of imposing 'punishment' in order

to vindicate public justice." Id. at 437. Nonetheless, the appellant asserts that

recent federal cases, i.e., United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892

(1989); United States v. Austin, -- U.S. --, 113 S.Ct. 2901 (1993); and

Department of Revenue v. Kurth Ranch, -- U.S. --, 114 S.Ct. 1937 (1994),

mandate a different result, as these cases provide that "the labels 'criminal' and

'civil' are not of paramount importance" in determining whether a sanction



         1
          A person may be declared a habitual offender if, "during a five-year period, [that
individual] is convicted in a Tennessee court or courts of three (3) or more of the following
offenses . . .provided, that, if the five. . .year period is used one (1) of such offenses occurred after
July 1, 1991: (vi) violation of § 55-10-401, prohibiting intoxicate d . . . p ersons from driving; (vii)
violation of chapter 50, part 3 of this title, relative to driving while unlicensed; (viii) violation of § 55-
50-504, relative to driving on a cancelled, suspended, or revoked license; (ix) violation of § 55-10-
205, relative to reckless driving . . . ." Tenn. Co de Ann . § 55-10-603 2(A ).

                                                      2
constitutes punishment for double jeopardy purposes. Halper, 490 U.S. at 447,

109 S.Ct. at 1901. Moreover, even though he acknowledges the Court's recent

decision on a similar issue in United States v. Ursery and United States v.

$405,089.23 in United States Currency, -- U.S. --, 116 S.Ct. 2135 (1996) (holding

that, although certain punitive aspects are present, in rem forfeitures serve

important nonpunitive goals and are neither "punishment" nor "criminal" for

double jeopardy consideration, thus, the forfeiture of property as a result of a civil

complaint does not bar a subsequent criminal prosecution), he contends that (1)

Ursery does not overrule the holdings in Halper, Austin, and Kurth Ranch; (2)

that Ursery does not apply to the present case because the present case is not

an in rem proceeding and because the revocation of a license is clearly a

penalty; 2 and (3) that, even if there is no violation of the federal Double Jeopardy

Clause, this court can conclude that there is a violation of the Double Jeopardy

Clause found in Article I, Section 10 of the Tennessee Constitution.



        An identical argument was recently addressed by another panel of this

court in State v. McClure and Ownby, No. 03C01-9605-CC-00198 (Tenn. Crim.

App. at Knoxville, Jan. 29, 1997). In McClure, this court determined that "Ursery

applies by analogy to [a proceeding under the Motor Vehicle Habitual Offenders

Act]." Id. Thus, this court concluded that, consistent with our supreme court's

holding in Conley, "the state action under the . . . Act is remedial and not

intended to inflict punishment."3 McClure, No. 03C01-9605-CC-00198 (citations

omitted). See also State v. Malady, No. 02C01-9506-CR-00166 (Tenn. Crim.

App. at Jackson, Jul. 26, 1996). We agree with this reasoning. Adhering to the


        2
           Contrary to the appellant's position, the courts of this state have repeatedly held that the
ability to drive a m otor vehicle is a privilege and n ot a prope rty right. See, e.g., Go ats v. S tate,
364 S.W .2d 889, 891 (T enn . 1963); Sullins v. Butler, 135 S.W .2d 930, 932 (T enn . 1940).
Accordingly, the revo cation of on e's driver's lice nse is not punishm ent fo r a crim inal act, but,
instea d, is the revocation of a p rivilege of one who had dem ons trated that it was un safe for him to
con tinue to ope rate m otor vehicles up on the high ways of the state. Conley, 639 S.W .2d at 437
(citing Go ats, 364 S.W .2d at 891).

        3
         See also Bankston v. State , 815 S.W .2d 213, 215 (Tenn. Crim. App. 1991) (holding that
license revocation proceed ings under the Ac t are civil in nature).

                                                    3
precedent set forth in Ursery and Conley, we hold that an adjudication of a

defendant as an habitual offender under the Motor Vehicle Habitual Offenders

Act and the subsequent revocation of his license, is not violative of his right

against double jeopardy as provided by both the federal and Tennessee

constitutions.

       The judgment of the trial court is affirmed.




                                   ____________________________________
                                   DAVID G. HAYES, Judge



CONCUR:



________________________________
GARY R. WADE, Judge



________________________________
CURWOOD WITT, Judge




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