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Negron v. State1/17/2001
MEMORANDUM OPINION AND JUDGMENT
[No. 4342- January 17, 2001]
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Mary E. Greene, Judge.
MANNHEIMER, Judge, concurring.
After the police arrested Angel L. Negron for driving while intoxicated, driving with a suspended license, and refusing to take a breathalyzer test, they found a baggie in the police car in which Negron had been transported. This baggie contained a substance which field tested positive for cocaine. Negron pled no contest to driving while intoxicated (DWI) and driving while his license was suspended (DWLS) at his arraignment. The state dismissed the refusal charge. Two months later, the state charged Negron with possession of cocaine. Negron argues that the double jeopardy clause of the Alaska Constitution required the state to join all of the offenses which arose out of the same criminal episode and that the state therefore could not bring the later cocaine possession charge. We conclude that prior authority from the Alaska Supreme Court has rejected this interpretation of the double jeopardy clause of the Alaska Constitution and affirm Negron's conviction.
I. Facts and Proceedings
On October 16, 1998, Fairbanks Police Officer John Terland approached Angel L. Negron at his vehicle, which was stopped on the side of the road. Officer Terland saw signs of intoxication. After Officer Terland questioned Negron and had him perform field sobriety tests, he arrested him. Officer Terland transported Negron to the police station where Negron refused to take the intoximeter test. Officer Terland then took Negron to the Fairbanks Correctional Center on charges of DWI, DWLS, and refusing to take the breathalyzer test (refusal). After he returned to his patrol car, Officer Terland searched the seat where Negron had been sitting and found a baggie that contained a substance which a field test indicated was cocaine. The officer added a charge of fourth- degree misconduct involving a controlled substance (possession of cocaine) to the remand slip and sent the baggie and the cocaine to the crime lab for analysis.
Negron was arraigned on the DWI, DWLS, and refusal charges the same day and pleaded no contest to the DWI and DWLS charges. The state dismissed the refusal charge. At that hearing, the district attorney's office filed a notice indicating that the drug charge was not being filed "at this time." The court sentenced Negron, who served his sentence and was released from custody.
On December 17, 1998, after receiving the laboratory report which confirmed that the substance in question was cocaine, the state indicted Negron on one count of fourth-degree misconduct involving a controlled substance. The state attempted to serve Negron with a summons after he was indicted on the drug charge, but Negron, after agreeing to pick up the summons at the Judicial Services office, failed to show up. In February 1999 Negron was arrested on the possession of cocaine charge.
Negron filed a motion to have this charge dismissed, arguing that the serial prosecution of the cases violated his double jeopardy right under the Alaska Constitution. The court denied Negron's motion in a written decision. Negron entered a no contest plea to the drug offense, reserving his right to appeal from the trial court's order denying his motion to dismiss. This appeal follows.
II. Discussion
A. Model Penal Code "same transaction" test
Negron urges the court to adopt the "same transaction" test for compulsory joinder, which is the Model Penal Code approach. The "same transaction" test requires the prosecutor to charge
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