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State v. Zerkel7/28/1995
BRYNER, Chief Judge, Concurring.
These consolidated appeals all involve defendants who were arrested for driving while intoxicated. In each case, the defendant either refused to take the breath test required by AS 28.35.031(a) or else took the test and the test results showed that the defendant's blood-alcohol level was .10 percent or higher. Based on either the defendant's refusal to take the test or the defendant's test result, the Department of Public Safety conducted administrative proceedings under AS 28.15.165-166 and, ultimately, revoked each defendant's driver's license.
At the same time, each defendant was also facing criminal prosecution in the district court. (Some of the defendants were prosecuted by the State of Alaska; the others were prosecuted by the Municipality of Anchorage.) Each defendant was charged with either driving while intoxicated (DWI), AS 28.35.030(a), or refusing to submit to a breath test, AS 28.35.032(f), or both. Moreover, a few of the defendants had been driving even though their licenses previously had been suspended or revoked. These defendants, in addition to being charged with DWI and/or breath-test refusal, were also charged with driving while their license was suspended or revoked (DWLS or DWLR), AS 28.15.291(a).
After the defendants lost their driver's licenses (or had their license revocations extended) in the Department of Public Safety's administrative proceedings, they filed motions asking the district court to dismiss the pending criminal prosecutions. In each case, the defendants asserted that the pending criminal prosecutions violated the double jeopardy clause -- the constitutional guarantee that no person be placed in jeopardy more than once for the same offense. See the Fifth and Fourteenth Amendments to the United States Constitution, and Article I, Section 9 of the Alaska Constitution. The defendants argued that, because they had already lost their driver's licenses for the same conduct that formed the basis of the criminal prosecutions (either testing at .10 percent blood alcohol or higher, or refusing the breath test), they had already been punished once for this conduct and could not be punished again.
With one exception (file number A-5739), the district court granted the defendants' motions and dismissed the criminal prosecutions. The State and the Municipality of Anchorage now appeal those dismissals. In file number A-5739, the district court denied the defendant's motion to dismiss, and we granted the defendant's petition to review the district court's decision. For the reasons explained in this opinion, we reinstate the prosecutions that were dismissed and we affirm the district court's refusal to dismiss the prosecution in file number A-5739.
The defendants' double jeopardy argument rests on a trio of cases decided by the United States Supreme Court: United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989); Austin v. United States, ___ U.S. ___, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993); and Montana Department of Revenue v. Kurth Ranch, ___ U.S. ___, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994). In these cases, the Supreme Court expanded the scope of the double jeopardy clause, construing it to protect people from the imposition of certain "penalties", "forfeitures", and "taxes" -- monetary impositions that traditionally had not been considered criminal punishments.
For purposes of analyzing the defendants' argument, it makes the most sense to begin by discussing United States v. Halper.
The Supreme Court's Decision in Halper
The defendant in Halper perpetrated a scheme of Medicare fraud. Halper was the manager of a laboratory
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