               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 37404

IN THE MATTER OF THE DRIVER’S                    )
LICENSE SUSPENSION OF JAMES                      )
KEVIN BUELL.                                     )
JAMES KEVIN BUELL,                               )
                                                 )     2011 Opinion No. 21
       Petitioner-Appellant,                     )
                                                 )     Filed: April 19, 2011
v.                                               )
                                                 )     Stephen W. Kenyon, Clerk
IDAHO DEPARTMENT OF                              )
TRANSPORTATION,                                  )
                                                 )
       Defendant-Respondent.                     )
                                                 )

       Appeal from the District Court of the First Judicial District, State of Idaho,
       Benewah County. Hon. Fred M. Gibler, District Judge.

       Decision of the district court, affirming an administrative order disqualifying
       commercial driver’s license following conviction for driving under the influence,
       affirmed.

       James E. Siebe, Moscow, for appellant.

       Susan K. Servick, Coeur d’Alene, for respondent.
                  ______________________________________________
MELANSON, Judge
       James Kevin Buell appeals from the district court’s decision upon judicial review
affirming the Idaho Transportation Department’s order disqualifying Buell’s commercial driver’s
license following his conviction for driving under the influence. For the reasons set forth below,
we affirm.
                                                I.
                                 FACTS AND PROCEDURE
       On October 21, 2006, Buell was arrested for driving a noncommercial vehicle while
under the influence (DUI). After his arrest, Buell refused to take a breath alcohol concentration
(BAC) test. As a result, Buell was given a suspension advisory form, his noncommercial
driver’s license was seized, and he was issued a temporary thirty-day noncommercial driving

                                                1
permit. Buell was charged with DUI. In December 2006, pursuant to a plea agreement, Buell
pled guilty to the DUI and the civil BAC refusal matter was dismissed. Buell was not sentenced
until July 10, 2007. At sentencing, the district court suspended Buell’s noncommercial driver’s
license for ninety days but, in accordance with the parties’ agreement, the suspension was
backdated to begin on the day of Buell’s arrest--October 21, 2006. On July 19, 2007, the Idaho
Transportation Department (ITD) sent Buell a notice advising him that his commercial driver’s
license (CDL) was disqualified for one year beginning August 6, 2007. Buell requested an
administrative hearing on his CDL disqualification.           The hearing officer upheld the
disqualification of Buell’s CDL, but recommended that the disqualification be made retroactive
to November 21, 2006, because that was the date Buell represented he had ceased having
commercial driving privileges. 1
       The ITD disagreed with the hearing officer’s recommendation for a retroactive starting
date of Buell’s CDL disqualification. On September 7, 2007, the ITD wrote a letter to the
hearing officer requesting reconsideration of the hearing officer’s recommendation. The ITD
argued that Buell’s CDL privileges were not withdrawn until he received the notification letter
on July 19, 2007, and that, consequently, there was no basis for backdating the disqualification.
On October 1, 2007, the ITD sent an amended notice to Buell informing him that his CDL was
disqualified beginning July 10, 2007. Several days later, the ITD sent a letter to Buell informing
him that it was not bound by the hearing officer’s recommendation that his CDL disqualification
be backdated, that his CDL disqualification starting date had been changed to coincide with his
DUI conviction date, and that, consequently, it was withdrawing its motion for reconsideration. 2




1
        Buell stated at the administrative hearing that, after his arrest on October 21, 2006, his
driver’s license was suspended and he was issued a thirty-day temporary permit. The thirty-day
permit ended on November 21, 2006. Buell stated that he had been without any driving
privileges (either commercial or noncommercial) since that time. There is no independent
evidence in the record to support the conclusion that Buell’s CDL was disqualified during this
timeframe. The record demonstrates that Buell was first notified that his CDL was disqualified
on July 19, 2007.
2
        The ITD based its change of the starting date for Buell’s CDL disqualification on the
Federal Motor Carrier Safety Administration (FMSCA) regulations governing commercial
driver’s licenses. 49 C.F.R. 383.51. The FMCSA has issued guidance interpreting this section.
According to the guidance, this regulation requires states to use the date of conviction, rather

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In response, Buell filed a petition for judicial review with the district court. On October 15,
2007, an ex parte order was issued staying enforcement of the disqualification and reinstating
Buell’s CDL pending the district court’s judicial review. After a hearing, the district court
upheld the hearing officer’s disqualification of Buell’s CDL. Buell appeals. 3
                                                II.
                                           ANALYSIS
       On appeal, Buell argues that the administrative disqualification of his CDL, pursuant to
I.C. § 49-335, violates the Double Jeopardy Clause of the Fifth Amendment to the United States
Constitution and Article I, Section 13 of the Idaho Constitution. Specifically, Buell asserts that,
despite being civil in nature, the administrative disqualification of his CDL is so punitive as to
effectively be a criminal penalty. Buell argues that, because the disqualification of his CDL is
effectively a criminal penalty, he has been subjected to multiple punishments and convictions in
violation of the Double Jeopardy Clause. In addition, Buell argues that due process requires that
his CDL disqualification be made retroactive because I.C. §§ 18-8002, 18-8002A, and 49-335
are ambiguous as to when his CDL disqualification began. Buell also argues that estoppel
principles should be applied to make his CDL disqualification retroactive to November 21, 2006,
because that is the date he thought his CDL disqualification began.
       The Idaho Administrative Procedures Act (IDAPA) governs the review of the ITD’s
decisions to deny, cancel, suspend, disqualify, revoke, or restrict a person’s driver’s license. See
I.C. §§ 49-201, 49-330, 67-5201(2), 67-5270. In an appeal from the decision of the district court
acting in its appellate capacity under the IDAPA, this Court reviews the agency record
independently of the district court’s decision. Marshall v. Idaho Dep’t of Transp., 137 Idaho
337, 340, 48 P.3d 666, 669 (Ct. App. 2002). This Court does not substitute its judgment for that
of the agency as to the weight of the evidence presented. I.C. § 67-5279(1); Marshall, 137 Idaho
at 340, 48 P.3d at 669. This Court instead defers to the agency’s findings of fact unless they are
clearly erroneous. Castaneda v. Brighton Corp., 130 Idaho 923, 926, 950 P.2d 1262, 1265




than the offense date, to calculate the starting and ending date of driver’s license
disqualifications.
3
       Enforcement of Buell’s CDL disqualification was stayed pending this appeal.

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(1998); Marshall, 137 Idaho at 340, 48 P.3d at 669. In other words, the agency’s factual
determinations are binding on the reviewing court, even where there is conflicting evidence
before the agency, so long as the determinations are supported by substantial and competent
evidence in the record. Urrutia v. Blaine County, ex rel. Bd. of Comm’rs, 134 Idaho 353, 357, 2
P.3d 738, 742 (2000); Marshall, 137 Idaho at 340, 48 P.3d at 669.
       The Court may overturn an agency’s decision where its findings, inferences, conclusions,
or decisions: (a) violate statutory or constitutional provisions; (b) exceed the agency’s statutory
authority; (c) are made upon unlawful procedure; (d) are not supported by substantial evidence
in the record; or (e) are arbitrary, capricious, or an abuse of discretion. I.C. § 67-5279(3). The
party challenging the agency decision must demonstrate that the agency erred in a manner
specified in I.C. § 67-5279(3) and that a substantial right of that party has been prejudiced. Price
v. Payette County Bd. of County Comm’rs, 131 Idaho 426, 429, 958 P.2d 583, 586 (1998);
Marshall, 137 Idaho at 340, 48 P.3d at 669. If the agency’s decision is not affirmed on appeal,
“it shall be set aside . . . and remanded for further proceedings as necessary.” I.C. § 67-5279(3).
A.     Double Jeopardy
       Buell argues that he was subjected, in consecutive prosecutions, to multiple convictions
and punishments for the same offense. Whether a defendant’s prosecution complies with the
constitutional protection against being placed twice in jeopardy is a question of law over which
we exercise free review. State v. Santana, 135 Idaho 58, 63, 14 P.3d 378, 383 (Ct. App. 2000).
We initially note that Buell does not claim that the Double Jeopardy Clause of the Idaho
Constitution provides any broader protection than that of the United States Constitution.4
Therefore, we will analyze this claim under the Double Jeopardy provisions of the United States
Constitution. See State v. Talavera, 127 Idaho 700, 703, 905 P.2d 633, 636 (1995); State v.
McKeeth, 136 Idaho 619, 625, 38 P.3d 1275, 1280 (Ct. App. 2001). The Double Jeopardy
Clause of the United States Constitution provides that no person shall “be subject for the same



4
        The Idaho Appellate Courts have consistently applied one analysis to double jeopardy
claims arising under both the United States and Idaho Constitutions when the issue is whether a
civil sanction is so punitive as to be criminal for double jeopardy purposes. See Berglund v.
Potlatch Corp., 129 Idaho 752, 757, 932 P.2d 875, 880 (1996); State v. Reichenberg, 128 Idaho
452, 458, 915 P.2d 14, 20 (1996); State v. Talavera, 127 Idaho 700, 703, 905 P.2d 633, 636
(1995); State v. Sharp, 104 Idaho 691, 693, 662 P.2d 1135, 1137 (1983); State v. Randles, 115
Idaho 611, 615, 768 P.2d 1344, 1348 (Ct. App. 1989).

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offense to be twice put in jeopardy of life or limb.” The Clause affords a defendant three basic
protections. It protects against a second prosecution for the same offense after acquittal, a
second prosecution for the same offense after conviction, and multiple criminal punishments for
the same offense. Schiro v. Farley, 510 U.S. 222, 229 (1994); McKeeth, 136 Idaho at 622, 38
P.3d at 1278.
       Buell argues that he was subjected to multiple convictions and punishments for the same
offense because, although civil in nature, the administrative disqualification of his CDL is so
punitive in form and effect as to be transformed into a criminal punishment for double jeopardy
purposes. In 1995, the Idaho Supreme Court held that a defendant who was convicted of DUI
and whose driver’s license was subsequently suspended for ninety days pursuant to I.C. § 18-
8002A was not subjected to multiple convictions and punishments in violation of the Double
Jeopardy Clause of the United States and Idaho Constitutions. Talavera, 127 Idaho at 705, 905
P.2d at 638. Talavera argued that the ninety-day license suspension, under I.C. § 18-8002A, was
so punitive that it should be considered a criminal punishment for double jeopardy purposes.
The Court held that the proper inquiry for determining whether a civil sanction rises to the level
of a criminal punishment for double jeopardy purposes is whether the sanction, as applied, bears
a rational relationship to a legitimate remedial purpose. Id. at 705, 905 P.2d at 638. The Court
noted that the remedial purpose of I.C. § 18-8002A is to provide maximum safety to the public
by getting drivers who fail blood alcohol concentration tests off of public roadways immediately.
Id. The Court held that, because the driver’s license suspension was not disproportionate to the
statute’s legitimate remedial goal, it did not rise to the level of a criminal punishment and was
not a violation of double jeopardy. Id.
       Were we to rely on Talavera, we would consider whether the one-year disqualification of
Buell’s CDL, as applied to him, bears a rational relationship to a legitimate remedial purpose.
The Court in Talavera noted that the purpose of I.C. § 18-8002A was to promote safety by
quickly disqualifying drivers who pose a hazard to the public at-large. Similarly, the remedial
purpose of I.C. § 49-335 is to provide for the safety of the public by removing problem drivers
from the road through disqualification. Statement of Purpose, SB 1001 (1989). Because I.C.
§ 49-335 serves the same legitimate remedial goals as I.C. § 18-8002A, we would conclude,
under Talavera, that the disqualification of Buell’s CDL was proportionate to the state’s
remedial purpose and did not rise to the level of a criminal punishment. Therefore, we would


                                                5
hold that the disqualification of Buell’s CDL did not subject him to multiple convictions and
punishments in violation of the Double Jeopardy Clause.
       Subsequent case law has, however, called the analytical method utilized in Talavera into
question. In conducting its analysis, the Talavera Court relied almost exclusively on United
States v. Halper, 490 U.S. 435 (1989), abrogated by Hudson v. United States, 522 U.S. 93
(1997). Under the Double Jeopardy Clause, “a defendant who already 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.
       In 1997, however, the United States Supreme Court disavowed the double jeopardy
analysis used in Halper. Hudson, 522 U.S. at 101-02. In Hudson, the United States Supreme
Court held that Halper’s deviation from traditional double jeopardy doctrine was ill-considered
and that its test had proved unworkable. Hudson, 522 U.S. at 101-02. The Hudson Court
substituted a multi-part test for determining whether a civil sanction rises to the level of
punishment for double jeopardy purposes.        First, a court must ask whether the legislature
indicated either expressly or impliedly that the statute should be considered criminal or civil in
nature. Id. at 99. In cases where the legislature has indicated an intention to establish a civil
penalty, there must be further inquiry to determine whether the statutory scheme was so punitive
as to transform what was clearly intended as a civil remedy into a criminal penalty. Id. In
making this determination, the court should consider the following factors, including whether:
(1) the sanction involves an affirmative disability or restraint; (2) the sanction has historically
been regarded as punishment; (3) the sanction comes into play only on a finding of scienter;
(4) the sanction’s operation will promote the traditional aims of punishment, retribution, and
deterrence; (5) the behavior to which the sanction applies is already criminal; (6) an alternative
purpose to which the sanction may rationally be connected is assignable to it; and (7) the
sanction appears excessive in relation to the alternative purpose assigned. Id. at 99-100. Buell
argues that, rather than follow Halper and Talavera, we should employ the analysis used in




                                                6
Hudson. Because Talavera relied almost exclusively on Halper and because Halper has been
abrogated by Hudson, we will apply the Hudson analysis in this case. 5
          Under Hudson, we must first determine whether the Idaho legislature intended for the
one-year CDL disqualification under I.C. § 49-335 to be civil or criminal. Whether a statutory
scheme is civil or criminal is a question of statutory construction. Smith v. Doe, 538 U.S. 84, 91
(2003). To determine the legislature’s intention, consideration should be given to the statute’s
text and structure. Id. Although the text of I.C. § 49-335 does not expressly state whether the
statute is civil or criminal, the Idaho legislature’s intention to create a civil proceeding is
evidenced by its placement of the CDL disqualification provisions within the motor vehicle code
instead of the criminal code. See Kansas v. Hendricks, 521 U.S. 346, 361 (1997). The Idaho
legislature had a civil remedial purpose in creating the statute. As noted above, the purpose of
I.C. § 46-335 is to provide for public safety through the removal of problem drivers from the
road by license disqualification. Review of the statute suggests that the legislature did not seek
to create anything other than a civil scheme designed to protect the public from harm. In
addition, when the legislature gives authority to an administrative agency we will presume that it
intended to provide for a civil sanction. See Hudson, 522 U.S. at 103. Here, the authority to
suspend a CDL was conferred by the legislature upon the ITD--a state agency. Therefore, we
hold the legislature intended disqualification from operating a commercial motor vehicle under
I.C. § 49-335 to be a civil sanction.
          Nevertheless, we must also inquire whether the statutory scheme governing the CDL
disqualification imposed upon Buell was so punitive either in purpose or effect as to transform
what was intended as a civil remedy into a criminal penalty. To make this determination, we
must weigh the seven factors laid out in Hudson. It is important to note that these factors must
be considered in relation to the statute on its face and that only the clearest proof will suffice to
transform what has been denominated a civil remedy into a criminal penalty. Hudson, 522 U.S.
at 100. First, we note that the disqualification of a CDL pursuant to I.C. § 49-335 does not
impose an affirmative disability or restraint that approaches criminal punishment on the license
holder.    In Hudson, the petitioners were bank officers who were criminally convicted for


5
       In addition, this Court has previously utilized Hudson and not Halper in its analysis of
whether a civil sanction should be viewed as a criminal punishment for double jeopardy
purposes. McKeeth, 136 Idaho 619, 622-24, 38 P.3d 1278-80.

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misapplication of bank funds. Subsequent to their criminal convictions, the petitioners were also
debarred from working in the banking industry and were subject to monetary penalties. Hudson,
522 U.S. at 97. In holding that the additional civil penalties did not rise to the level of criminal
punishment for double jeopardy purposes, the Hudson Court noted that, while the petitioners
were prohibited from making their livelihoods in the banking industry, the sanctions were
nothing approaching the infamous punishment of imprisonment. Id. at 104. Similarly, while a
CDL disqualification prevents a CDL holder from making his or her livelihood from driving
commercial vehicles, it does not impose a restraint that approaches the punishment of
imprisonment. See Id.
       Second, we must consider whether driver’s license suspensions have been regarded as
punishment. Idaho appellate courts have not viewed driver’s license suspensions as punishment.
See Talavera, 127 Idaho at 638, 905 P.2d at 706; McKeeth, 136 Idaho at 623, 38 P.3d at 1279;
State v. Gusman, 125 Idaho 810, 812-13, 874 P.2d 1117, 1119-1120 (Ct. App. 1993). See also
United States. v. Roberts, 845 F.2d 226, 228 (9th Cir. 1988). Therefore, we hold that a CDL
disqualification has not historically been regarded as punishment.
       Third, we must consider whether a one-year CDL disqualification comes into play only
on a finding of scienter.    Under I.C. § 49-335(1)(a), the prerequisite for a one-year CDL
disqualification is conviction of a DUI. Under I.C. § 49-335(2), the prerequisite for a one-year
CDL disqualification is refusal or failure of a BAC test. There is no scienter required for a
disqualification under either subpart.
       Fourth, we must consider whether the behavior attached to the one-year CDL
disqualification is already a crime. We note that the conduct sanctioned in the instant case is also
criminalized by I.C. § 18-8004. However, this is insufficient to transform the one-year CDL
disqualification imposed on Buell into a criminal punishment. See McKeeth, 136 Idaho at 624,
38 P.3d at 1280. A statute that has some connection to a criminal violation is, by itself, far from
the clearest proof necessary to show that a sanction is criminal. Id.
       Fifth, we must consider whether a one-year CDL disqualification promotes the traditional
aims of punishment, retribution, and deterrence. Buell, citing to State v. Ankeny, 109 Idaho 1,
704 P.2d 333 (1985), argues that, because a driver’s license is a valuable property right that
cannot be taken away without proper due process, the suspension of a driver’s license has a
punitive criminal element. There is no support in Ankeny, however, for the proposition that the


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suspension of a driver’s license is punitive. The Court in Ankeny held that, while a driver does
have a substantial right in his or her driver’s license, the state’s interest in preventing intoxicated
persons from driving far outweighs the individual’s interest, especially because the individual is
entitled to a prompt post-seizure hearing. Ankeny, 109 Idaho at 5, 704 P.2d at 337. This holding
supports the conclusion that the state has a strong remedial and nonpunitive reason for
suspending driver’s licenses. We recognize that a one-year CDL disqualification will have a
deterrent effect, which is a traditional goal of criminal punishment. However, deterrence may
serve civil as well as criminal goals. Hudson, 522 U.S. at 105; McKeeth, 136 Idaho at 624, 38
P.3d at 1280.     For example, the sanctions at issue here, while intended to deter future
wrongdoing, also serve to provide for the safety of the public at-large. To hold that the mere
presence of a deterrent purpose renders such sanctions criminal for double jeopardy purposes
would severely undermine the state’s ability to engage in effective regulation of driver’s licenses.
Therefore, we hold the mere presence of a deterrent effect is insufficient to render a one-year
CDL disqualification criminal.
       Sixth, we must consider whether there is a purpose other than punishment that could be
assigned to the one-year CDL disqualification and whether the disqualification is excessive in
relation to the alternative purpose assigned to it. As noted above, the purpose of I.C. § 49-335 is
to remove problem drivers from the road through disqualification. Statement of Purpose, SB
1001 (1989). The right of a citizen to operate a motor vehicle is substantial, but it is also subject
to reasonable regulation by the state in the exercise of its police powers. Talavera, 127 Idaho at
705, 905 P.2d at 638. When a person is approved for a CDL, he or she agrees to abide by certain
conditions and regulations. Id. The commercial driving industry is highly regulated because of
the size and weight of commercial vehicles and the heightened danger they pose to the public
should they be misused. Impaired commercial drivers pose a unique danger to the public
because of the type of vehicles they operate. Therefore, disqualification of a CDL indicates only
that the holder has failed to comply with the agreed conditions, not that he or she is being
punished for a particular act. Id. Further, a one-year disqualification from driving a commercial
vehicle is not disproportionate to the statute’s legitimate remedial goal of keeping problem
drivers off the roadways.




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         Based on the Hudson factors, we hold that a one-year CDL disqualification is civil in
nature and does not rise to the level of a criminal punishment for double jeopardy purposes.
Therefore, we affirm the district court’s order upholding Buell’s one-year CDL disqualification.
B.       Disqualification Starting Date
         Buell argues that his due process rights were violated because I.C. §§ 18-8002,
18-8002A, and 49-335 are ambiguous and did not adequately notify him of when his CDL
disqualification would begin. Idaho Code Sections 18-8002 and 18-8002A are part of the
criminal code.    Idaho Code Section 18-8002 provides for suspension of a noncommercial
driver’s license when a driver has refused to submit to an evidentiary BAC test. Idaho Code
Section 18-8002A provides for the suspension of a driver’s license when a driver has failed an
evidentiary BAC test. The motor vehicle code prescribes additional consequences that result
from a motorist’s refusal to submit to evidentiary testing or for failing such testing. I.C. § 49-
335. Idaho Code Section 49-335(1)(a) provides that a CDL holder will be disqualified from
operating a commercial vehicle for one year if convicted of driving under the influence. Idaho
Code Section 49-335(2) provides that a CDL holder will be disqualified from operating a
commercial vehicle for one year if the person refuses to submit to or fails a BAC evidentiary test.
A disqualification under I.C. § 49-335 is in addition to a suspension under I.C. §§ 18-8002 or 18-
8002A and relates solely to the driver’s CDL.        A holder of a CDL is presumed to have
knowledge of the laws governing CDLs. See Wilson v. State, 133 Idaho 874, 880, 993 P.2d
1205, 1211 (Ct. App. 2000). Therefore, Buell was presumed to know that the disqualification of
his CDL was in addition to any suspensions he received under either I.C. §§ 18-8002 or 18-
8002A.
         Buell also argues that it was unclear whether his CLD disqualification was pursuant to
I.C. §§ 49-335(1) or 49-335(2) and, therefore, whether his CLD disqualification was to begin at
the moment he refused the BAC or, alternatively, on the date of his conviction. Buell’s refusal
of the evidentiary BAC test was dismissed pursuant to a plea agreement. Therefore, his CDL
disqualification was based, not on his refusal of the BAC, but on his conviction for DUI. Buell
was given no reason to believe that his CDL had been suspended prior to July 19, 2007, which is
the date that Buell first received notice from the ITD that he was disqualified from operating a
commercial vehicle. Until the ITD issued its notice of disqualification to Buell on July 19, 2007,
no action had been taken by the ITD with respect to Buell’s CDL. Because Buell suffered no


                                                10
action against his CDL until July 19, 2007, there was no basis for the district court to order a
retroactive disqualification of his CDL. While Buell may have been confused as to when the
period of his CDL disqualification was to begin, his confusion does not mean that the statute is
ambiguous. Therefore, the statute is not ambiguous as applied in this case, and Buell was not
denied due process.
       Finally, Buell argues that estoppel principles should be applied to make his CDL
disqualification retroactive to November 21, 2006, because he believed his disqualification
began on that date. Estoppel may not ordinarily be invoked against a government or public
agency functioning in a sovereign or governmental capacity. Young Elec. Sign Co. v. State ex rel
Winder, 135 Idaho 804, 810, 25 P.3d 117, 123 (2001). To apply estoppel principles in this case
would effectively prevent the state from imposing driver’s license disqualifications whenever the
driver was under some confusion regarding the start date of his or her disqualification.
Therefore, estoppel is not an appropriate remedy in this case.
                                               III.
                                        CONCLUSION
       A one-year CDL disqualification under I.C. § 49-335 is civil in nature and does not rise
to the level of a criminal punishment for double jeopardy purposes. Buell was not denied due
process because the CDL disqualification statute was not ambiguous as to the date Buell’s CDL
disqualification was to begin. In addition, estoppel is not an appropriate remedy against the ITD
in this case. Therefore, the district court’s decision upon judicial review affirming the
administrative disqualification of Buell’s CDL is affirmed. Costs, but not attorney fees, on
appeal are awarded to respondent, Department of Transportation.
       Chief Judge GRATTON and Judge GUTIERREZ, CONCUR.




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