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MUNICIPALITY OF ANCHORAGE v. SKAGEN6/21/1996
William M. Skagen was charged with two violations of the Anchorage Municipal Code: driving while intoxicated, AMC § 9.28.020A, and refusing to take a breath test, AMC § 9.28.022C. While Skagen awaited trial, the Municipality commenced a civil forfeiture proceeding against his automobile pursuant to AMC § 9.28.026C. Skagen (who was the registered owner of the vehicle) failed to enter an appearance in the forfeiture action. As a consequence, the Municipality obtained a default judgement of forfeiture against the vehicle.
After the vehicle was forfeited to the Municipality, Skagen filed a motion seeking dismissal of the two criminal charges pending
against him. Skagen asserted that the forfeiture of his vehicle, based on his acts of driving while intoxicated and refusing to take the breath test, constituted a "punishment" for double jeopardy purposes. Because he had already suffered this punishment, Skagen argued, the double jeopardy clause of the Federal Constitution barred the Municipality from prosecuting him for these two crimes.
District Court Judge William H. Fuld agreed with Skagen in part. He ruled that the forfeiture of Skagen's vehicle constituted a punishment for double jeopardy purposes, but he found that the vehicle forfeiture had been based solely on Skagen's refusal to take the breath test, not his act of driving while intoxicated. For this reason, Judge Fuld dismissed the breath-test refusal charge but he maintained the driving while intoxicated charge.
The Municipality filed a petition for review, asking us to reinstate the breath-test refusal charge. Skagen filed a cross-petition, asking us to dismiss the driving while intoxicated charge. We granted both petitions, and we now hold that the Municipality is entitled to pursue both of the criminal charges.
There is support for Skagen's assertion that the forfeiture of a vehicle based on criminal acts of the driver constitutes a "punishment" for federal double jeopardy purposes. See One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 699, 85 S.Ct. 1246, 1250, 14 L.Ed.2d 170 (1965), cited in Austin v. United States, 509 U.S. 602, 619, 113 S.Ct. 2801, 2811, 125 L.Ed.2d 488 (1993), and United States v. Perez, 70 F.3d 345 (5th Cir. 1995). There is also legal authority against Skagen. See City of New Hope v. One 1986 Mazda 626, 546 N.W.2d 300 (Minn. App. 1996) (holding that the forfeiture of a vehicle operated by an intoxicated driver does not constitute "punishment" for double jeopardy purposes, and that such a forfeiture can be imposed in addition to the criminal penalties for DWI); State v. Johnson, 667 So.2d 510 (La. 1996) (holding that the forfeiture of a vehicle used in drug offenses does not, per se, constitute "punishment" for double jeopardy purposes — that, with the possible exception of extraordinarily valuable vehicles, such a forfeiture can be imposed irrespective of whether the owner has already been convicted and sentenced for the drug offenses); State ex rel. McGehee v. One 1989 Ford F-150 Pickup, 888 P.2d 1036 (Okla. App. 1994) (indicating that the forfeiture of a vehicle used in drug offenses does not constitute "punishment" for double jeopardy purposes). See also United States v. Salinas, 65 F.3d 551, 553-54 (6th Cir. 1995), and United States v. Tilley, 18 F.3d 295, 300 (5th Cir. 1994), cert. denied ___ U.S. ___, 115 S.Ct. 574, 130 L.Ed.2d 490 (forfeiture of property purchased with the proceeds of illegal narcotics transactions is not "punishment" for double jeopardy purposes).
Despite the allure of this double jeopardy issue, we conclude that we need not resolve it to decide Skagen's case. The federal circuits uniformly hold that, even when the government
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