¶1(concurring) — While I agree with the majority opinion, I do not believe we need to rely on the rather unpredictable course of the United States Supreme *870Court’s double jeopardy jurisprudence to reach the conclusion in the majority opinion.
¶2Jurisdictions that have considered the question have overwhelmingly held licensure actions to be remedial, not punishment: Thompson v. State, 896 F. Supp. 220 (D. Me. 1995) (suspension of license under Maine statute was not punishment under double jeopardy clause and did not bar subsequent DUI
¶3Even if one were to disagree, as the dissent does, with the multitudes of our colleagues nationwide who have held drivers license revocations and suspensions are not punishment for double jeopardy purposes, the probationary status complained of in the present case imposes no immediate sanction whatsoever on the licensee, and cannot possibly be considered punishment.
¶4Durham, C.J., and Guy, J., concur with Talmadge, J.
¶5 The dissent relies on our language in State v. Clark, 124 Wn.2d 90, 98, 875 P.2d 613 (1994): "[A] forfeiture statute must be solely remedial to escape characterization as 'punishment’ under the federal double jeopardy clause.” Clark, in turn, relied on Austin v. United States, 509 U.S. 602, 113 S. Ct. 2801, 125 L. Ed. 2d 488 (1993), for the same wording. Clark, 124 Wn.2d at 100. Leaving aside the important question of whether the same considerations that apply in the civil forfeiture arena apply in the context of driver license administration, the Supreme Court has decided the "holding of Austinwas limited to the Excessive Fines Clause of the Eighth Amendment, and we decline to import the analysis of Austininto our double jeopardy jurisprudence.” United States v. Ursery, 516 U.S. 267, 116 S. Ct. 2135, 2147, 135 L. Ed. 2d 549 (1996). The dissent evidently believes the Supreme Court is wrong about this and relies heavily on Austinfor its double jeopardy analysis. We are bound to observe the Supremacy Clause: the Supreme Court’s rulings on double jeopardy under the federal constitution control. We have said our state constitution provides no greater double jeopardy protection than the federal constitution. State v. Gocken, 127 Wn.2d 95, 896 P.2d 1267 (1995).
¶6 Many states use different terminology for the crime of driving under the influence of alcohol or drugs (DUI). I use DUI as the reference for all such statutes.
¶7 Even Justice Stevens, the lone dissenter in Ursery, suggested "administrative licensing sanctions are remedial.” Ursery, 116 S. Ct. at 2161 n. 16 (Stevens, J., concurring in part, dissenting in part).
¶8 A statutory scheme providing an enhanced criminal sentence in the future based upon a purely administrative action in the past might raise serious due process (not double jeopardy) concerns. Justice Alexander correctly observes in his concurrence in the dissent, "the probationary license is treated as a prior DUI conviction whether or not the holder of that license is ultimately convicted *875of the charge which resulted in the issuance of the probationary license.” Concurrence in Dissent at 875. That question is not before us now, and we need not address it.
¶9 The dissent’s conclusion that the issuance of a probationary license is punishment is strange. As a consequence of the issuance of the probationary license in this case, precisely nothing happened to the respondents. They were not deprived of life, limb, liberty, or property. Nor was there any effect whatsoever on their privilege to drive in Washington. In fact, even though their BAC Datamaster tests indicated they were driving with more than the legal limit of alcohol in their systems, they have not been tried for drunk driving because the court below dismissed the charges against them. The respondents have not been punished. "The risk to which the [Double Jeopardy] Clause refers is not present in proceedings that are not 'essentially criminal.’ ” Breed v. Jones, 421 U.S. 519, 528, 95 S. Ct. 1779, 44 L. Ed. 2d 346 (1975). It is only upon the contingency of a future charge for DUI that the effect of the probationary license springs to life. I cannot comprehend how the Double Jeopardy Clause can apply to something that has not yet happened, and may never happen, to require dismissal of the DUI charges in this case.
¶10(concurring in dissent) — I concur in the dissent. I do so because I agree with Justice Sanders that the issuance of a probationary driver’s license, pursuant to former RCW 46.61.5052, has no remedial purpose. Its only purpose, as the dissent observes, is punitive in that it has the effect of increasing the punishment of the probationary licensee on his or her súbsequent offense for DUI. Dissenting op. at 878-80. In essence, the probationary license is treated as a prior DUI conviction whether or not the holder of that license is ultimately convicted of the charge which resulted in the issuance of the probationary license.
¶11I write separately only because I disagree with the view expressed in the dissent that if a sanction is partially remedial and partially punitive, it always violates the Double Jeopardy Clause of the United States Constitution. Dissenting op. at 882-83. In reaching that conclusion, the dissent relies primarily on United States v. Halper, 490 U.S. 435, 448, 109 S. Ct. 1892, 104 L. Ed. 2d 487 (1989) in *876which the Court said that "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.” (Emphasis added).
¶12The Halpercase has, however, been undercut somewhat by the recent case of United States v. Ursery, 516 U.S. 267, 116 S. Ct. 2135, 135 L. Ed. 2d 549 (1996). Regarding that case, the Court said that if the language of that case were to be "applied literally, then virtually every sanction would be declared to be a punishment: it is hard to imagine a sanction that has no punitive aspect whatsoever.” Ursery, 116 S. Ct. at 2146 n.2. In Ursery, the Court explicitly stated the test that should be employed to determine when a civil sanction is punitive. It said that a sanction is punishment if either (1) it is intended by Congress to be criminal or (2) " 'whether the statutory scheme was so punitive either in purpose or effect as to negate’ Congress’ intention to establish a civil remedial mechanism.’ ” Ursery, 116 S. Ct. at 2142 (quoting United States v. One Assortment of 89 Firearms, 465 U.S. 354, 365, 104 S. Ct. 1099, 79 L. Ed. 2d 361 (1984) (quoting United States v. Ward, 448 U.S. 242, 248-49, 100 S. Ct. 2636, 65 L. Ed. 2d 742 (1980))).
¶13It is not difficult to conceive of a statutory scheme in which a requirement that probationary licenses be issued to first time DUI offenders could have a predominantly remedial effect. If, for example, the Legislature had provided that a person with a probationary license could drive only from 9:00 a.m. to 6:00 p.m., the overriding effect of the provision would be remedial because the provision would have the effect of removing the offending driver from the highway during the hours that drinking and driving is most prevalent. Although, arguably, such a restriction on driving is punitive, that aspect of the sanction does not detract from its main thrust, which is remedial.
¶14Under the legislative scheme we have here, however, there is no such remedial effect. The probationary license does not inhibit the licensee’s privilege to drive in any *877way and, consequently, it is impossible to conclude that it has any effect other than to enhance punishment. That being the case, double jeopardy protections are triggered.
¶15Moreover, because the issuance of a probationary license under RCW 46.61.5051 has no remedial effect, the multi-page string citation of authority in the concurrence is largely irrelevant. It is true that administrative revocation or suspension of a driver’s license may well have a remedial rather than punitive effect, and thus prove to be no bar on double jeopardy grounds to a criminal prosecution. However, this conclusion simply begs the question in this case, which is whether the probationary license at issue is remedial. Unlike a revocation or a suspension, the probationary license here has no effect other than to punish.
¶16Johnson and Madsen, JJ., concur with Alexander, J.
¶17(dissenting) — The Fifth Amendment’s prohibition against double jeopardy is absolute: ". . . [N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . . .” U.S. Const, amend. V. This clause prohibits multiple punishments for the same offense. United States v. Halper, 490 U.S. 435, 448, 109 S. Ct. 1892, 1902, 104 L. Ed. 2d 487 (1989).
¶18If reclassifying allegedly intoxicated drivers to "probationary” status is a form of punishment, the initiation of a criminal proceeding to again punish the same conduct violates the double jeopardy clause and the DUI charge must be dismissed. I agree with the trial court that these defendants have been unconstitutionally placed in jeopardy of punishment twice for the same conduct and would affirm the trial court’s dismissal. I therefore dissent from the contrary conclusion reached by the majority.
¶19The majority opinion rests upon two propositions: (1) summary license revocation with probationary license substitution is not punishment and (2) a sanction which is *878only partially punitive does not place one in jeopardy. I disagree, and doubly so.
¶20This probationary license does not alter one’s privilege to drive but puts the driver in a special class of drivers singled out for enhanced jail time.
¶21Is this probationary license punishment?
¶22The majority opines, "[Probationary licenses serve a remedial purpose because they alert the Department and law enforcement officers to a person’s probationary status.” Majority at 864 (emphasis added). Why alert the authorities? Do the authorities simply have inquiring minds or do they need to be "alerted” so they will impose more jail time, next time?
¶23The majority’s analysis is difficult because any alleged distinction between "remedial” and "punishment” is incoherent; punishment is simply one form of remedy. Another form of remedy might be nonpunitive; however, "remedy” includes both. See Roger Pilón, Criminal Remedies: Restitution, Punishment, or Both?, Ethics 348 (July 1978). I have therefore substituted the alternate generic term "sanction” to include all possible sanctions of a puni*879tive or nonpunitive nature. Double jeopardy applies to punitive sanctions.
¶24When the majority says "[Probationary licenses serve a remedial purpose” it fails to tell us whether this "remedy” is punitive or otherwise, but apparently assumes "otherwise.” Under this statute the only sanction imposed by the probationary license is to substantially enhance mandatory criminal penalties to be imposed upon the driver’s second DUI conviction if arrested while driving with a probationary license. The question is therefore whether this sanction—reclassification to potentially heightened criminal penalties—is "punishment” in itself for the same conduct which led to the DUI charges. Certainly, it is conceded, both the probationary license and the DUI charges result from the same conduct.
¶25If a probationary license imposed under this particular statute is a sanction of a punitive nature, it must be so recognized for double jeopardy purposes.
¶26When considering the problem, I certainly agree with the majority and concurrence that not all sanctions are punitive while some certainly are.
¶27Nonpunitive sanctions might include, for example, compensatory damages, restitution, and forfeiture of stolen property for return to its rightful owner. Punishment, on the other hand, would certainly include penal incarceration as well as the threat of incarceration to deter future criminal acts.
¶28Reclassifying one’s license status to "probationary” under this particular statute does not affect the right or scope of the defendant’s driving privileges; however, it does subject him to mandatory enhanced penalties should he be arrested on a subsequent occasion. The sole purpose of this reclassification is simply to deter the driver from committing another DUI through threat of enhanced punishment. However, deterrence is punishment for double jeopardy purposes. Halper, 490 U.S. at 448. Substitution of the probationary license for the normal license is punishment in itself without regard to whether *880there ever is a subsequent DUI arrest, conviction, or enhanced penalty
¶29The concurring opinion cites multiple decisions from other jurisdictions essentially holding license suspensions and limitations are nonpunitive sanctions and, thus, do not constitute punishment for double jeopardy purposes. However, those cases may be generally distinguished because they involve administratively removing a driver from the road, or restricting his right to drive in some fashion, whereas the statute at issue changes the licensing status of the driver simply to threaten an enhanced criminal penalty for any subsequent DUI.
¶30A few cases hold an administrative suspension of one’s license to drive punitive for double jeopardy purposes, see, e.g., State v. Ackrouche, 70 Ohio Misc. 2d 34, 650 N.E.2d 535 (1995), however, such cases must be distinguished for the same reason!
¶31Any double punishment violates double jeopardy
¶32The majority opines that unless a sanction is solely for *881punishment, the sanction is outside the protection of the double jeopardy clause, citing Halper, 490 U.S. at 448. However this conclusion is not supported by the literal language of Halper, is inconsistent with other, and subsequent, United States and Washington Supreme Court precedents, and is overtly inconsistent with the constitutional text.
¶33Halperstates:
We have recognized in other contexts that punishment serves the twin aims of retribution and deterrence .... [I]t 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 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.
¶34Halper, 490 U.S. at 448-49. (Emphasis added.) Halperholds a sanction not "solely remedial” is punishment for double jeopardy purposes. See Carlos F. Ramirez, Administrative License Suspensions, Criminal Prosecution, and the Double Jeopardy Clause, 23 Fordham Urb. L.J. 923, 927-38 (1996). Halper, read as a whole, demonstrates the Supreme Court is faithful to the spirit and meaning of the double jeopardy clause, which prevents double punishment even though one or both of those punishments may also be accompanied by other nonpunitive sanctions or goals. But the construction placed on this language by the majority would have the Supreme Court contradicting itself within the same paragraph. Further, the majority’s reading contradicts the plain meaning of the Halpertext by ignoring the words "to the extent,” which support the proposition that unless the sanction is "solely to serve a remedial purpose” it is to that "extent” not remedial but punitive.
¶35The majority’s claim that one may be subject to multiple punishments without violating the double jeopardy clause *882provided only there he at least some nonpunitive sanction imposed in addition to the punishment or, in the alternative, that the punishment might also promote a nonpuni-tive objective, is double-talk. The Fifth Amendment forbids multiple punishments without regard to motive and without regard to the additional imposition of nonpunitive sanctions.
¶36Subsequent Supreme Court cases of Department of Revenue v. Kurth Ranch, 511 U.S. 767, 114 S. Ct. 1937, 128 L. Ed. 2d 767 (1994); Austin v. United States, 509 U.S. 602, 113 S. Ct. 2801, 125 L. Ed. 2d 488 (1993); and United States v. Ursery, 516 U.S. 267, 116 S. Ct. 2135, 135 L. Ed. 2d 549 (1996) deal with the same or related topics and are consistent with Halper.
¶37Civil forfeiture cases distinguished
¶38Austinand Ursery were both civil forfeiture
¶39Austininvolved a civil forfeiture proceeding against a body shop and mobile home after the owner pleaded guilty to a drug offense. The government defended its action under the excessive fines clause, claiming the civil forfeiture was not "punishment” and thus could not be an excessive fine under the Eighth Amendment. Relying on Halper"that civil proceedings may advance punitive and remedial goals, and, conversely, that both punitive and remedial goals may be served by criminal penalties,” Austin, 113 S. Ct. at 2806 (citing Halper, 490 U.S. at 447), the Court held:
[T]he question is not, as the United States would have it, *883whether forfeiture under §§ 881(a)(4) and (a)(7) is civil or criminal, but rather whether it is punishment.
In considering this question, we are mindful of the fact that sanctions frequently serve more than one purpose. We need not exclude the possibility that a forfeiture serves remedial purposes to conclude that it is subject to the limitations of the Excessive Fines Clause. We, however, must determine that it can only be explained as serving in part to punish.
¶40Austin, 113 S. Ct. at 2806 (emphasis added). Austintherefore seems to apply the Halperdouble jeopardy analysis to the excessive fines clause.
¶41Later Austinrestates the same point: "Fundamentally, even assuming that §§ 881(a)(4) and (a)(7) serve some remedial purpose, the Government’s argument must fail.” Id. at 2812. Austintherefore relies upon the same language in Halperwhich is relied upon by the respondents here, but in a forfeiture context. It emphasizes in footnote 14 that the nature of the inquiry is whether the sanction is "simply” or "purely” remedial (in which case it is not a punishment) or whether it has any punitive characteristics (in which case it must be considered a punishment for the purpose of the excessive fines clause).
¶42In Ursery a majority of the United States Supreme Court held civil forfeiture, an in rem proceeding, cannot be punishment for the purpose of the double jeopardy clause of the United States Constitution although it may be excessive for the purpose of the excessive fines clause. But for a "fine” to be excessive it must first be a fine—and Ursery holds forfeitures are not fines. This may be debatable; however, it does not purport to affect the Court’s previously established double jeopardy analysis.
¶43While careful to distinguish civil forfeitures from all other types of sanctions, a footnote to the majority opinion discusses the Halpercase in the context of Justice Stevens’s dissenting opinion. Ursery, 116 S. Ct. at 2145 n.2. There the Court observed:
Whether a particular sanction "cannot fairly he said solely to *884serve a remedial purpose” is an inquiry radically different from that which we have traditionally employed in order to determine whether, as a categorical matter, a civil sanction is subject to the double jeopardy clause . . ..If the "general rule” of Justice Stevens were applied literally, then virtually every sanction would be declared to be a punishment: It is hard to imagine a sanction that has no punitive aspect whatsoever.
¶44The context of the footnote suggests the Court was primarily interested in stating even if civil forfeitures are purely or partially punitive that does not subject them to double jeopardy analysis in any event. In dissent Justice Stevens disagreed. Even so, it is clear the majority distinguished forfeitures from all other types of sanctions, drawing a "sharp” distinction between in rem forfeiture and in personam civil penalties.
¶45Punitive civil sanction cases
¶46Kurth Ranchaddressed the double jeopardy question directly in the context of a nonforfeiture Montana tax on illicit drugs. It is the seminal case because it is the United States Supreme Court’s last word on the subject at hand. The issue in Kurth was whether or not the tax "has punitive characteristics that subject it to the constraints of the Double Jeopardy Clause.” Kurth, 114 S. Ct. at 1945 (emphasis added). The Court found it did and applied double jeopardy to bar the parallel criminal charges.
¶47As in Kurth, the like question here is whether this probationary license status has any punitive characteristics. If so it is punishment for double jeopardy purposes, *885and the DUI charges must be dismissed. See also United States v. Hudson, 14 F.3d 536 (10th Cir. 1994).
¶48Both the concurrence to the majority and the concurrence to this dissent argue an inconsistency between the Supreme Court’s analysis in Ursery and the Supreme Court’s analysis in Halperand Kurth, and thus claim the Ursery analysis should be followed in the case at bar because Ursery is the most recent of the three. Citing language in Ursery to the effect that an excessive fines clause analysis in the Austinforfeiture case should not be "imported” into double jeopardy cases not involving forfeiture or excessive fines, Concurrence at 870 n.55 (citing Urs-ery, 116 S. Ct. at 2147), the concurrence suggests the dissenting opinion does not follow Ursery because "the dissent evidently believes the Supreme Court is wrong [in Ursery] . . . .” This misses the point.
¶49Whether or not the Supreme Court dropped the ball in Ursery (and there is substantial scholarly comment to that effect)
¶50State cases on double jeopardy
¶51State v. Clark, 124 Wn.2d 90, 98, 100, 875 P.2d 613 (1994) applied a double jeopardy standard to forfeiture facts. The question there was whether or not a civil forfeiture statute in combination with criminal sanctions violated state or federal prohibitions against the imposition of double jeopardy. A unanimous court held, "[A] forfeiture statute must be solely remedial to escape characterization as 'punishment’ under the federal double jeopardy clause.” Clark, 124 Wn.2d at 98. Clarkconstrued Austinto hold "[i]f the civil forfeiture statute is at all punitive, it is to be deemed 'punishment.’ ” Clark, 124 Wn.2d at 100. A majority of this court arguably reached the same result in State v. Cole, 128 Wn.2d 262, 295, 297, 300, 906 P.2d 925 (1995) wherein it construed Austinand Clarkto require a double jeopardy analysis unless the sanction "serves solely a remedial purpose.” Cole, 128 Wn.2d at 295 (Johnson, J., dissenting).
¶52Whether Clarkand Coleare consistent with Ursery’s federal (not state) forfeiture analysis remains to be seen; however, clearly these cases facially define the punishment standard for double jeopardy purposes—which is the issue presented by this case.
¶53I conclude that this probationary license is wholly punitive, and nothing else. It does not revoke or limit the licensed driver’s privilege to drive but is there to deter a subsequent DUI by enhancing the applicable mandatory minimum jail time. If that isn’t punishment, what is? *887Even if there were also nonpunitive aspects, double jeopardy would still bar the criminal prosecution. I dissent.
¶54 Compare RCW 46.61.5051 (repealed by Laws 1995, ch. 332, § 21), Alcohol violator with regular license—penalties with RCW 46.61.5052 (repealed by Laws 1995, ch. 332, § 21), Alcohol violator with probationary license—penalties. Under the 1994 statutory scheme, a driver with a "regular” nonprobationary license and no DUI convictions within the past five years and whose breath test exceeded .10 but was below .15, faced a mandatory one-day minimum in jail and a ninety-day license suspension. Under similar circumstances, a driver with a probationary license faced a mandatory seven days in jail and a one-year license revocation, even if it was a first conviction. The probationary license lasted for a period of five years from the date the probationary status was imposed. RCW 46.20.355(2), RCW 46.61.5051(4) (repealed by Laws 1995, ch. 332, § 21). The probationary license status continued whether or not there were DUI charges, much less a DUI conviction.
¶55 The concurrence states . . the probationary status complained of in the present case imposes no immediate sanction whatsoever on the licensee, and cannot possibly be considered punishment.” Concurrence at 874.1 disagree. The "immediate sanction” is revocation of the standard license and substitution of the probationary license. This substitution is punishment because its purpose is deterrence.
¶56 The concurrence cites State v. Gustafson, 76 Ohio St. 3d 426, 668 N.E.2d 435 (1996) for the proposition that a "civil sanction imposed as a result of administrative license suspension proceeding was not punishment for double jeopardy purposes.” Concurrence at 873. Gustafson must be distinguished because it involves an immediate license suspension which removes the driver from the road. Nevertheless, the opinion affirmatively adds even a summary sanction may not continue beyond the DUI trial, for to do so would violate the constitutional double jeopardy prohibition against multiple punishments for the same oifense. ("We therefore hold that an administrative license suspension ceases to be remedial and becomes punitive in nature to the extent it is deemed to continue subsequent to conviction and sentencing for violation of [the DUI statute].” 668 N.E.2d at 448.) I note the probationary license at issue here survives the trial (whatever the result) for five years. RCW 46.20.355(2), RCW 46.61.5051 (repealed by Laws 1995, ch. 332, § 21). Therefore it not only violates double jeopardy but even continues to punish those who are acquitted for the alleged predicate criminal conduct.
¶57 Cf. Roger Pilon, Can American Asset Forfeiture Law Be Justified?, 39 N.Y.L. Sch. L. Rev. 311 (1994) (forfeiture in general has gotten out of hand).
¶58 By its own terms, Ursery is clearly limited to in rem civil forfeiture cases. "Halper dealt with in personam civil penalties under the Double Jeopardy Clause; Kurth Ranchwith a tax proceeding under the Double Jeopardy Clause. . . . None of those cases dealt with the subject of this case: in rem civil forfeitures for purposes of the Double Jeopardy Clause.” Ursery, 116 S. Ct. at 2147, 135 L. Ed. 2d at 567-68.
¶59 "[I]f a particular remedial sanction can only be understood as also serving punitive goals, then the person subjected to the sanction has been punished despite that fact that the sanction is also remedial. To conclude otherwise effectively invalidates the Double Jeopardy Clause by allowing multiple punishments for the same conduct merely because the punishments also serve remedial purposes. We therefore must conclude that if a sanction is not exclusively remedial, but rather can only be explained as also affecting deterrence or retribution, it is punishment for double jeopardy analysis.”
¶60Hudson, 14 F.3d at 540.
¶61 See, e.g., Jeffrey Steinborn, United States v. Ursery; United States v. $405,098.23: Supreme Court closes double jeopardy door, Wash. Crim. Def. 10,11 (Nov. 1996) ("[Rjead the Ursery opinion. I recommend some form of sedation as a prelude. But if you want to know what it means, that’s simpler The Supreme Court has indulged the government and given it carte blanche to loot.”); Roger Pilón, Forfeiting Reason, 3 Regulation 15, 18 (1996) (the reasoning of Ursery opinion is result-oriented, circular, and incoherent); cf. Pilón, supra note 4; Donald Dripps, The Exclusivity of the Criminal Law: Toward a 'Regulatory Model” of, or "Pathological Perspective” on, the Civil-Criminal Distinction, 7 J. Con-temp. Legal Issues 199 at n.64 (1996) (the departure taken from existing law by Michigan v. Bennis, 116 S. Ct. 1560 (1996) and Ursery is mistaken).
¶62 See Andrew L. Subin, The Double Jeopardy Implications of In Rem Forfeiture of Crime-Related Property: The Gradual Realization of a Constitutional Violation, 19 Seattle U. L. Rev. 253, 262 (Winter 1996) ("A nominally civil sanction, an in rem forfeiture, or a tax, [or a license probation] is punitive unless it serves a solely remedial purpose.”)