Drunks claim double jeopardy.

When John Denver ran his Porsche into a tree while driving drunk one night last spring, who would have thought that it would affect drank driving cases all over the country?

Denver's blood alcohol level was above the legal level of intoxication in Colorado, so his driver's license was taken at the scene. He was subsequently charged with drunk driving, and that's when his lawyer claimed double jeopardy. The drunk driving charges against him were dropped based on that argument, but a county court ruling in July overturned the decision and declared that he must stand trial.

The "John Denver defense" made headlines and caught the attention of attorneys nationwide. Claims of double jeopardy have been raised in drunk driving cases in at least 11 states - Arizona, Colorado, Hawaii, Louisiana, Maine, Minnesota, New Mexico, North Carolina, Ohio, Vermont and Virginia.

The argument is based on the U.S. Constitution's Fifth Amendment prohibition against being punished twice for the same offense.

The double jeopardy defense claims that a drunk driver is being subjected to two punishments arising from the same crime: first, when the license is taken at the scene and again when criminal charges are filed. Some lower level courts have bought the argument, including the one in the John Denver case.

Administrative license revocation laws permit the immediate confiscation of the license of a driver who has been pulled over for suspected drunk driving and then fails a Breathalyzer test measuring the amount of alcohol in the blood.

Thirty-seven states and the District of Columbia currently provide for administrative license revocation. This is considered one of the most effective drunk driving countermeasures because it immediately takes intoxicated drivers off the streets and supports a public perception that justice for driving drunk is swift and sure.

The practice of administrative license revocation has been extensively challenged legally on the basis of lack of due process guaranteed by the 14th Amendment to the U.S. Constitution. But courts have ruled that confiscating the license of a drunk driver at the scene is permissible for public safety and that it does not violate due process as long as drunk drivers receive a swift administrative hearing.

The highest level courts in New Mexico, Maine, Hawaii, Vermont and Louisiana have rejected the double jeopardy defense, accepting the argument that immediate suspension is designed to protect the public from drunk drivers.

Some lower courts have also rejected the double jeopardy defense. The Arizona and Minnesota courts of appeals both recently ruled against it on the grounds that the license revocation is "rationally related to its legislative purpose of protecting public safety." A circuit court judge in Virginia also rejected constitutional challenges to the state's drunk driving laws, saying that the administrative license revocation is part of a continuous procedure arising from a single drunk driving incident.