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DAVIS v. MUNICIPALITY OF ANCHORAGE9/19/1997
The Municipality of Anchorage undertook an in rem forfeiture proceeding against a vehicle owned by John K. Davis. This forfeiture action was prosecuted under former Anchorage Municipal Code (AMC) 9.28.026, an ordinance which declared that any vehicle operated by an intoxicated driver, or any vehicle operated by a driver who refused to submit to a breath test, was subject to forfeiture as a "public nuisance". Based on proof that Davis had driven while intoxicated and had refused to submit to a breath test, the Municipality obtained forfeiture of Davis's vehicle. The Municipality also pursued criminal charges against Davis for these same two offenses.
In this appeal, Davis contends that once the Municipality secured forfeiture of his vehicle in the civil proceeding, the double jeopardy clauses of the federal and the Alaska constitutions prohibited the Municipality from pursuing the criminal charges against him. For the reasons explained in this opinion, we hold that the Municipality was entitled to pursue both the in rem forfeiture action and the criminal charges.
Facts of the case
Davis was arrested in Anchorage on February 17, 1995, for driving while intoxicated and refusing to submit to a breath test. His vehicle, a 1982 Ford, was seized at the time of his arrest. While Davis awaited trial on the two criminal charges, the Municipality pursued an in rem forfeiture action against the vehicle, and on May 12, 1995, Davis's vehicle was declared forfeit to the Municipality.
Davis asked the district court to dismiss the still-pending criminal charges. He argued that the forfeiture of his vehicle amounted to a "punishment" for his acts of driving while intoxicated and refusing the breath test. Davis further contended that, because he had been punished once for these acts (by the forfeiture of his vehicle), the constitutional guarantees against double jeopardy prohibited the government from punishing him again for the same acts (by imprisonment or fine in the criminal case). See the Fifth Amendment to the United States Constitution and Article I, Section 9 of the Alaska Constitution.
The district court rejected Davis's arguments and refused to dismiss the criminal charge. Davis then pleaded no contest to driving while intoxicated, preserving his double jeopardy argument for appeal. See Cooksey v. State, 524 P.2d 1251, 1255-57 (Alaska 1974).
The forfeitures imposed under former AMC 9.28.026 were in rem forfeitures
In his brief to this court, Davis renews his argument that the forfeiture of his vehicle was a "punishment" for double jeopardy purposes. Under the United States Supreme Court's decision in United States v. Ursery, 518 U.S. 267, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996), it is clear that forfeiture of a person's property in an in rem civil forfeiture proceeding does not constitute "punishment" for purposes of the federal double jeopardy clause. Davis attempts to avoid this result by arguing that vehicle forfeiture proceedings under former AMC 9.28.026 were not really in rem proceedings, but were instead in personam forfeitures, a type of forfeiture generally recognized as "punishment". See Ursery, 518 U.S. at ___, 116 S.Ct. at 2147 (majority opinion) and 518 U.S. at ___-___, 116 S.Ct. at 2150-51 (concurring opinion of Justice Kennedy).
The law distinguishes between in personam forfeitures, which are inflicted as punishment for a crime, and in rem forfeitures, which can be inflicted on property owners who are themselves innocent of crime, if the government proves that the property is contraband or is connected to the commission of
a criminal act. See Calero-Toledo v. Pearson Yacht Leasing Co.
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