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Haynes v. State5/13/1998
3818 NOTICE
Memorandum decisions of this court do not create legal precedent. See Alaska Appellate Rule 214(d) and Paragraph 7 of the Guidelines for Publication of Court of Appeals Decisions (Court of Appeals Order No. 3). Accordingly, this memorandum decision may not be cited for any proposition of law, nor as an example of the proper resolution of any issue.
MEMORANDUM OPINION AND JUDGMENT
No. 3818
Mark E. Haynes was arrested in Ketchikan on November 24, 1994 and charged with both driving while intoxicated, AS 28.35.030(a), and driving with a suspended license, AS 28.15.291(a). He submitted to a chemical test of his breath, which showed his blood-alcohol level to be .186 percent.
The State of Alaska commenced criminal proceedings against Haynes. At the same time, based on Haynes's breath test result, the Department of Public Safety took administrative action against Haynes's (already suspended) driver's license. See AS 28.15.165-166. In addition, the City of Ketchikan impounded Haynes's vehicle and held it pending the outcome of a forfeiture proceeding (Ketchikan v. One 1985 Maroon Ford Bronco, No. 1KE-94-1146 Civ.) brought under Ketchikan Municipal Ordinance 10.40.045. (This forfeiture proceeding never went to judgment; it was ultimately dismissed by agreement of the parties, with each side bearing its own costs.)
Haynes filed a motion in his criminal case seeking dismissal of the count charging him with driving while intoxicated. He argued that, because the State had taken administrative action against his driver's license, he had already suffered one "punishment" for his act of driving while intoxicated, and thus any additional punishment that might ultimately be imposed on him in the criminal prosecution would amount to an illegal second punishment for purposes of the double jeopardy clauses of the United States and Alaska Constitutions. The district court denied Haynes's motion, and he ultimately pleaded no contest to the charge of driving while intoxicated, reserving his right to appeal the district court's denial of his double jeopardy claim. See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974). In return for Haynes's plea, the State dismissed the charge of driving with a suspended license.
This was not a valid Cooksey plea. Haynes's double jeopardy attack, even if successful, would not have affected the validity of the count charging Haynes with driving while his license was suspended. See State v. Zerkel, 900 P.2d 744, 746 n.1 (Alaska App. 1995). From the record of the district court proceedings, it appears that the State's only reason for dismissing this count was to facilitate Haynes's no contest plea by insuring that Haynes's double jeopardy argument would be dispositive of the entire case, as required by Cooksey. We have repeatedly disapproved of such plea arrangements. See Wells v. State, 945 P.2d 1248, 1250 (Alaska App. 1997); Spinka v. State, 863 P.2d 251 (Alaska App. 1993).
Nevertheless, because this appellate case has been pending so long (since the autumn of 1995), we exercise our authority to treat Haynes's appeal as a petition for review, which we now grant. See Juneau v. Thibodeau, 595 P.2d 626, 631 (Alaska 1979); Moore v. State, 895 P.2d 507, 509 n.2 (Alaska App. 1995). We therefore turn to the merits of Haynes's appellate argument.
Haynes attacks his DWI conviction on double jeopardy grounds, but his current double jeopardy argument is substantially different from the one he presented to the district court. With respect to the double jeopardy claim that Haynes did raise in the district court, we affirm the district court's ruling (its refusal to dismiss the DWI
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