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McCormick v. Municipality of Anchorage3/10/2000
ever been enacted, municipalities would have been authorized to enact sentencing provisions for DWI and breath-test refusal that included discretionary forfeiture of vehicles.
McCormick's interpretation also overlooks the first sentence of AS 28.35.038, which declares that municipalities may adopt ordinances "providing for the impoundment or forfeiture of a motor vehicle ... involved in the commission of an offense under AS 28.35.030, 28.35.032, or an ordinance with elements substantially similar to AS 28.35.030 or 28.35.032." That is, AS 28.35.038 not only authorizes municipalities to adopt ordinances for the forfeiture of a vehicle used in violation of a municipal DWI or breath-test refusal law; the statute also expressly authorizes municipalities to adopt ordinances for the forfeiture of vehicles used in violation of the state DWI or breath-test refusal laws.
Given this legislative context, we conclude that the purpose of the final sentence of AS 28.35.038 is to authorize municipalities to enact vehicle impoundment and vehicle forfeiture laws that are harsher than their state-law counterparts. We further conclude that these harsher penalties can include the mandatory forfeiture of a vehicle involved in either the offense of driving while intoxicated or the offense of breath-test refusal. The legislature has enacted mandatory minimum punishments for these two offenses, thus restricting the courts' authority to suspend sentence for these two crimes. Given this legislative policy, and given our conclusion that the final sentence of AS 28.35.038 was intended to authorize municipalities to impose even more onerous impoundments and forfeitures, we conclude that the legislature's failure to specifically mention AS 12.55.080 - 085 in the wording of AS 28.35.038 does not manifest a legislative intent to bar municipalities from enacting mandatory forfeitures.
McCormick raises two final attacks on the mandatory forfeiture provision. First, he notes that his vehicle was worth more than $5000, and that he received a separate fine ($1500 with $750 suspended). McCormick therefore argues that he was subjected to a total monetary penalty exceeding the maximum fine for driving while intoxicated ($5000). We rejected this same argument in Hillman v. Anchorage. In Hillman, we held that a vehicle forfeiture is not the equivalent of a fine, nor is a vehicle forfeiture to be combined with a fine for purposes of determining whether a defendant's fine exceeds the $5000 limit. We reaffirm our decision in Hillman.
Second, McCormick asserts that forfeiture of a $5000 vehicle is grossly disproportionate to the offense of driving while intoxicated, and that therefore the forfeiture represents an "excessive fine" of the kind prohibited by the Eighth Amendment.
In Hillman, we held that forfeiture of a vehicle worth $8000 did not represent an excessive punishment for a defendant convicted of his third DWI. We noted that the Ohio courts had upheld the forfeiture of a vehicle valued at between $23,000 and $30,000 when the defendant was convicted of his fourth DWI. Here, McCormick is a repeat DWI offender who has suffered forfeiture of a vehicle worth $5000. This forfeiture is not so "grossly disproportionate" as to run afoul of the Eighth Amendment.
Conclusion
The judgment of the district court is AFFIRMED.
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