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July 10, 1991


Appeal from the Superior Court of the District of Columbia; Hon. Bruce D. Beaudin, Trial Judge

Ferren, Terry, and Wagner, Associate Judges.

The opinion of the court was delivered by: Terry

While driving his car through an intersection in northeast Washington, appellant Purcell struck and killed a pedestrian. A few weeks later the grand jury returned an indictment charging him with negligent homicide, a felony under D.C. Code § 40-713 (1990). Purcell moved to dismiss the indictment, contending that his previous prosecution for traffic offenses arising out of the same incident barred the instant prosecution on double jeopardy grounds. The trial court, after a hearing, denied the motion. Purcell appeals; *fn1 we affirm.


On September 28, 1989, Purcell's car collided with a pedestrian at the intersection of Seventh and Monroe Streets, N.E. A police officer at the scene issued Purcell three citations for traffic law violations: failing to stop at a red light, *fn2 driving at an unreasonable speed, *fn3 and failing to yield the right of way to a pedestrian. *fn4 The Bureau of Traffic Adjudication (BTA) determined, after a hearing, that Purcell had passed a red light but had not traveled at an unreasonable speed. The charge of failing to yield the right of way to a pedestrian was not considered at the BTA hearing. However, some time before the hearing below on the motion to dismiss, Purcell paid the BTA a fine for that charge. *fn5 That payment was later returned to him by the BTA.

Purcell based his motion to dismiss the indictment on the theory that the hearing on the traffic citations had placed him in jeopardy, so that the Double Jeopardy Clause of the Fifth Amendment shielded him from prosecution on the indictment. The trial court ruled, however, that there had been no prior jeopardy because Purcell had not previously been charged with a criminal offense. The court held that the red light and unreasonable speed charges were civil violations, that jeopardy therefore did not attach in the BTA hearing on those violations, and that the BTA never had jurisdiction to hear the criminal charge of failing to yield to a pedestrian. Thus, the court concluded, there was no double jeopardy bar to the prosecution of Purcell for negligent homicide.


The Double Jeopardy Clause protects a person convicted or acquitted of a crime from any subsequent prosecution for the same crime. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969). A subsequent prosecution is for the same crime if the government, "to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted." Grady v. Corbin, 495 U.S. 508, 110 S. Ct. 2084, 2093, 109 L. Ed. 2d 548 (1990) (footnote omitted). Purcell claims that the Double Jeopardy Clause requires dismissal of the indictment charging him with negligent homicide because the proceeding before the BTA was a prior prosecution for the "same crime." Relying on Grady v. Corbin, he argues that any trial for negligent homicide will necessarily entail proof of conduct for which he has already been prosecuted, namely, the three traffic offenses. We reject the argument because Purcell has not yet been prosecuted for any crime arising out of the events of September 28. What places this case beyond the reach of Grady v. Corbin is a 1978 statute, the Traffic Adjudication Act, which converted almost all District of Columbia traffic offenses from crimes to civil violations.

The Double Jeopardy Clause only prohibits successive criminal prosecutions or punishments for the same act. It does not bar a criminal prosecution after a proceeding that results in a civil sanction, or vice versa. United States v. Ward, 448 U.S. 242, 248, 100 S. Ct. 2636, 65 L.Ed.2d 742 (1980); Helvering v. Mitchell, 303 U.S. 391, 398-399, 58 S. Ct. 630, 82 L. Ed. 917, 20 A.F.T.R. (P-H) 796 (1938). The Supreme Court has made clear that a legislature "may impose both a criminal and a civil sanction in respect to the same act or omission; for the double jeopardy clause prohibits merely punishing twice, or attempting a second time to punish criminally, for the same offense." Id. at 399. When the first proceeding is civil, no jeopardy attaches, and thus a later criminal prosecution does not raise any double jeopardy issues.

The defendant in Helvering v. Mitchell was initially charged with criminal tax fraud, under a section of the tax code which imposed a criminal penalty (five years' imprisonment or a $10,000 fine, or both) for willfully attempting to evade the payment of income tax. He went to trial and was acquitted. The Commissioner of Internal Revenue then brought a civil action, under a different section of the tax code, to recover the unpaid taxes as well as a civil penalty equal to fifty percent of the unpaid amount. The defendant argued that the Double Jeopardy Clause barred the subsequent civil action because the civil penalty was really a criminal sanction intended to punish his allegedly criminal acts. The Supreme Court held, however, that there was no double jeopardy bar to the subsequent action unless the civil penalty was "intended as punishment, so that the proceeding is essentially criminal," id. at 398, and that the question of whether a civil penalty is actually a criminal sanction "is one of statutory construction." Id. at 399; accord, e.g., One Lot Emerald Cut Stones v. United States, 409 U.S. 232, 237, 93 S. Ct. 489, 34 L. Ed. 2d 438 (1972). The Court concluded that Congress had intended the civil penalty in that case to be a "remedial" or "civil administrative" sanction, so that jeopardy would not attach in the proceeding to recover the civil penalty. Mitchell, supra, at 401, 406. "That Congress provided a distinctly civil procedure for the collection of the indicates clearly that it intended a civil, not a criminal, sanction." Id. at 402. *fn6

Following the precedent established in Mitchell, the Court in United States v. Ward, supra, outlined a two-step procedure for deciding whether a particular statutory penalty is civil or criminal. Starting from the basic rule that the issue "is a matter of statutory construction," the Court said that its first task was to ascertain whether the legislature "indicated either expressly or impliedly a preference for one label or the other." 448 U.S. at 248 (citations omitted). If the Court concludes that the legislature "has indicated an intention to establish a civil penalty," it must then determine whether the penalty is "so punitive either in purpose or effect as to negate that intention." Id. at 248-249 (citation omitted).


We adopt the two-part analysis prescribed in Ward to determine whether the BTA offenses *fn7 with which Purcell was charged were civil or criminal. See $345.00 in United States Currency v. District of Columbia, 544 A.2d 680, 682 (D.C. 1988) ("applying the analysis set forth in . . . Ward "). If the BTA offenses were civil rather than criminal, then jeopardy did not attach in the BTA ...

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