                                                                     FILED BY CLERK
                            IN THE COURT OF APPEALS                      APR 18 2008
                                STATE OF ARIZONA
                                                                         COURT OF APPEALS
                                  DIVISION TWO                             DIVISION TWO


DENNIS BRODSKY,                             )
                                            )
                   Petitioner/Appellant,    )         2 CA-CV 2007-0117
                                            )         DEPARTMENT B
                  v.                        )
                                            )         OPINION
THE STATE OF ARIZONA,                       )
                                            )
         Real Party in Interest/Appellee.   )
                                            )


           APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                                Cause No. C20071761

                       Honorable Howard Fell, Judge Pro Tempore

                                     AFFIRMED


Gregory D. D’Antonio                                                           Tucson
                                                     Attorney for Petitioner/Appellant

Michael G. Rankin, Tucson City Attorney
 By Laura Brynwood and William F. Mills                                         Tucson
                                                   Attorneys for Real Party in Interest/
                                                                              Appellee


V Á S Q U E Z, Judge.
¶1            Appellant Dennis Brodsky appeals from the superior court’s denial of relief

in a special action challenging the Tucson City Court’s refusal to dismiss his driving under

the extreme influence of intoxicating liquor (extreme DUI) charge on double jeopardy

grounds. He contends the administrative seizure and impoundment of his vehicle pursuant

to A.R.S. § 28-3511 following his arrest constitutes punishment barring further prosecution

of the underlying DUI offense. For the following reasons, we affirm.

                           Facts and Procedural Background

¶2            When reviewing the superior court’s denial of relief in a special action, we

view the facts in the light most favorable to upholding the court’s ruling. McCown v.

Patagonia Union High Sch. Dist., 129 Ariz. 127, 127, 629 P.2d 94, 94 (App. 1981). On

July 23, 2006, Brodsky was arrested and charged with extreme DUI, in violation of A.R.S.

§ 28-1382(A). When the police officer activated his emergency lights to make the stop,

Brodsky was driving in the vicinity of his apartment so he pulled into his assigned parking

space at the apartment complex. Following his arrest, Brodsky was taken to the police

station for a breathalyzer test. He was then transported back to his apartment and his vehicle

was towed and impounded for thirty days pursuant to § 28-3511. Brodsky apparently did

not request a hearing to contest the impoundment, A.R.S. § 28-3514, or pay towing and

storage charges for the release of his vehicle at the end of the thirty-day period as required

by A.R.S. § 28-3512. The car was thus abandoned to the towing company. See A.R.S.

§ 28-3515.




                                              2
¶3            In August 2006, Brodsky was arraigned in Tucson City Court on the extreme

DUI charge. He moved to dismiss the charge on the ground of double jeopardy, claiming the

criminal prosecution was barred because he had already been punished by the administrative

impoundment of his vehicle. A Tucson City Court judge denied the motion, and Brodsky

filed a petition for special action in the superior court. The superior court accepted

jurisdiction but denied relief. This appeal followed. We have jurisdiction under A.R.S. §

12-2101(B); see also City of Tucson v. Valencia, 21 Ariz. App. 148, 149, 517 P.2d 106,

107 (1973).

                                        Discussion

¶4            Brodsky argues that his criminal prosecution on the underlying extreme DUI

charge violates the Double Jeopardy Clauses of the Fifth Amendment to the United States

Constitution and article II, § 10 of the Arizona Constitution. 1 We generally review a

superior court’s denial of relief in a special action for an abuse of discretion. Stoudamire

v. Simon, 213 Ariz. 296, ¶ 3, 141 P.3d 776, 777 (App. 2006). However, to the extent the

resolution of an issue depends on statutory interpretation, we review the superior court’s

ruling de novo. State ex rel. Brannan v. Williams, 217 Ariz. 207, ¶ 4, 171 P.3d 1248,

1250-51 (App. 2007).




       “The double jeopardy protections extended by the Arizona Constitution are
       1

coextensive with those provided by its federal counterpart.” Lemke v. Rayes, 213 Ariz. 232,
n.2, 141 P.3d 407, 411 n.2 (App. 2006), citing State v. Minnitt, 203 Ariz. 431, ¶ 27, 55
P.3d 774, 780 (2002). We thus apply the same interpretation to both. State v. Gravano,
210 Ariz. 101, ¶ 16, 108 P.3d 251, 255 (App. 2005).

                                             3
¶5            The Double Jeopardy Clause protects a defendant from multiple prosecutions

and multiple punishments for the same offense. United States v. Dixon, 509 U.S. 688, 696,

(1993); State v. Cook, 185 Ariz. 358, 360-61, 916 P.2d 1074, 1076-77 (App. 1995). As

he did below, Brodsky contends “the loss of use of the vehicle, the administrative fine and

the charges for impoundment as well as the ultimate loss of the vehicle each serve as a

‘punishment’ that [he] has already endured thus precluding further criminal prosecution.”

He relies on United States v. Halper, 490 U.S. 435 (1989), for the proposition that a civil

sanction may constitute punishment if it furthers the traditional goals of retribution and

deterrence, regardless of how the sanction is labeled. In Halper, the Court held that any

sanction so “overwhelmingly disproportionate” that it does not solely serve a remedial

purpose was subject to double jeopardy constraints. Id. at 449.

¶6            However, as the superior court pointed out, the Court overruled Halper in

Hudson v. United States, 522 U.S. 93, 101-02 (1997), concluding that its “deviation from

longstanding double jeopardy principles was ill considered,” and its test for determining

whether a particular sanction constitutes punishment “ha[d] proved unworkable.” The

Court further noted that “the Double Jeopardy Clause does not prohibit the imposition of

all additional sanctions that could, ‘“in common parlance,”’ be described as punishment.”

522 U.S. at 98-99, quoting United States ex rel. Marcus v. Hess, 317 U.S. 537, 549 (1943),

quoting Moore v. Illinois, 55 U.S. 13, 20 (1852).

¶7            Under Hudson, a sanction qualifies as punishment for double jeopardy

purposes only if the legislature intended the penalty to be criminal in nature or if, “‘by the


                                              4
clearest proof,’” the purpose or effect of the penalty is so punitive as to transform it into a

criminal penalty. 522 U.S. at 99-101, quoting United States v. Ward, 448 U.S. 242, 249

(1980); see also State v. Gravano, 210 Ariz. 101, ¶¶ 11-12, 108 P.3d 251, 254-55 (App.

2005).

¶8            We believe the Arizona legislature intended the vehicle immobilization or

impoundment statutes to establish civil penalties, and not criminal punishment. Section 28-

3471, A.R.S., provides that a person who violates a provision of Title 28, Chapter 8 “is

subject to a civil penalty unless a different classification is provided by law.” All of the

provisions at issue were enacted as part of this chapter. Section 28-3511(C) provides that

“while a peace officer has control of [a] vehicle the peace officer shall cause the removal and

either immobilization or impoundment of the vehicle if the peace officer has probable cause

to arrest the driver of the vehicle for a violation of . . . § 28-1382.” The immobilization or

impoundment shall be for thirty days pursuant to § 28-3511(E). Section 28-3513(A),

A.R.S., imposes “a charge for administrative costs relating to the removal, immobilization,

impoundment, storage or release of a vehicle.” And § 28-3512(C) provides that “[t]he

owner . . . is responsible for paying all immobilization, towing and storage charges related

to the immobilization or impoundment of the vehicle and any administrative charges

established pursuant to section 28-3513.” Finally, the “poststorage hearings conducted by

a justice court [are] considered as civil filings.” A.R.S. § 28-3514(B). See Wong Wing v.

United States, 163 U.S. 228, 235 (1896) (quintessential criminal punishments may be

imposed only “by a judicial trial”).


                                              5
¶9            Having made this determination, we must “inquire[] further whether the

statutory scheme [is] so punitive either in purpose or effect, as to transform what was clearly

intended as a civil remedy into a criminal penalty.” Hudson, 522 U.S. at 99 (internal

quotations and citations omitted). In making this determination, we may consider a number

of factors, including:

              (1) “[w]hether the sanction involves an affirmative disability or
              restraint”; (2) “whether it has historically been regarded as a
              punishment”; (3) “whether it comes into play only on a finding
              of scienter”; (4) “whether its operation will promote the
              traditional aims of punishment-retribution and deterrence”;
              (5) “whether the behavior to which it applies is already a
              crime”; (6) “whether an alternative purpose to which it may
              rationally be connected is assignable for it”; and (7) “whether
              it appears excessive in relation to the alternative purpose
              assigned.”

Id. at 99-100, quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963); see

also Gravano, 210 Ariz. 101, ¶ 12, 108 P.3d at 255.

¶10           Applying these factors, we note that money penalties and even the more

extreme penalty of forfeiture of property have historically been viewed as civil remedies and

not as criminal punishment. United States v. Ursery, 518 U.S. 267, 270-71 (1996) (civil

in rem forfeiture); Helvering v. Mitchell, 303 U.S. 391, 399-400 (1938) (money penalties).

And neither of these penalties involve an “affirmative disability or restraint” approaching the

“‘infamous punishment’ of imprisonment.” Hudson, 522 U.S. at 104, quoting Flemming

v. Nestor, 363 U.S. 603, 617 (1960).

¶11           The statute under which Brodsky’s vehicle had been impounded and the

charges imposed, § 28-3511, requires only that an officer have probable cause to arrest a

                                              6
driver for being in physical control of a vehicle while under the extreme influence of

intoxicating liquor, “without regard to the [driver]’s state of mind.” Hudson, 522 U.S. at

104. Although the conduct for which these sanctions were imposed may also be criminal,

this is “insufficient to render [the sanctions] criminally punitive.” Id. at 105. And, the

sanctions here have the public safety purpose of restricting the access of drivers charged with

extreme DUI to their vehicles, as well as the fiscal purpose of reimbursing the government

and its contractors for the costs of towing and storing the vehicles and any consequential

administrative costs. The fact that a sanction may also deter future wrongdoing “is

insufficient to render [it] criminal, as deterrence ‘may serve civil as well as criminal goals.’”

Id., quoting Ursery, 518 U.S. at 292. Thus, we find that Brodsky has not offered the

“clearest proof” that the statutes providing for the temporary impoundment of his car and

the assessment of an administrative fine and impoundment charges were so punitive in

purpose or effect to transform them into criminal punishments.2

¶12           Brodsky nevertheless argues that the “ultimate loss” of his vehicle constitutes

punishment for double jeopardy purposes. We disagree. The loss of his car does not

implicate double jeopardy because it was apparently the result of his failure to request a



       2
        To determine whether the civil penalties imposed on Brodsky constitute punishment
for double jeopardy purposes, we consider the factors in Hudson and Gravano “in relation
to the statute on its face.” Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963);
see Gravano, 210 Ariz. 101, ¶ 12, 108 P.3d at 254 (inquiry is whether the “statutory
scheme” is punitive). To the extent Brodsky argues that the impoundment of his car was
unreasonable under the particular circumstances of his case, the appropriate forum for such
an argument was a post-storage hearing pursuant to A.R.S. § 28-3514, which he apparently
did not request.

                                               7
post-storage hearing or pay the charges related to its impoundment, § 28-3512(C), not based

on his act of driving the vehicle while impaired. “[T]he Double Jeopardy Clause, which

guards against Government oppression, does not relieve a defendant from the consequences

of his voluntary choice.” United States v. Scott, 437 U.S. 82, 99 (1978); see also Ferreira

v. Superior Court, 189 Ariz. 4, 8-9, 938 P.2d 53, 56-57 (App. 1996) (holding uncontested

forfeiture action did not implicate double jeopardy barring subsequent criminal

prosecution).3

                                        Disposition

¶13           For the reasons stated above, we affirm the superior court’s denial of relief.

Because this decision resolves his appeal on the merits, Brodsky’s request for an

interlocutory stay, which he raised as an argument in his opening brief, is now moot. And,

because Brodsky is not the prevailing party, he is not entitled to an award of attorney fees

or costs pursuant to A.R.S. § 12-348.



                                              ____________________________________
                                              GARYE L. VÁSQUEZ, Judge

CONCURRING:



____________________________________


       3
        As we have noted, even in the context of a contested forfeiture action, the United
States Supreme Court has held that civil forfeiture under federal statutes does not constitute
punishment for purposes of the Double Jeopardy Clause. United States v. Ursery, 518 U.S.
267, 271 (1996); see also Gravano, 210 Ariz. 101, ¶ 10, 108 P.3d at 254.

                                              8
PETER J. ECKERSTROM, Presiding Judge



____________________________________
PHILIP G. ESPINOSA, Judge




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