State v. Zerkel
| Decision Date | 28 July 1995 |
| Docket Number | Nos. A-5773,A-5774,A-5785,KONAHOK-M,A-5739,s. A-5773 |
| Citation | 900 P.2d 744 |
| Parties | STATE of Alaska, Appellant, v. Kyle J. ZERKEL, Appellee. Jehu MARISCAL, Petitioner, v. STATE of Alaska, Respondent. STATE of Alaska, Appellant, v. Kenneth HARRIS, Appellee. STATE of Alaska, Appellant, v. Howard JERUE, Jr., Appellee. MUNICIPALITY OF ANCHORAGE, Appellant, v. Robert D. BECK, Appellee. MUNICIPALITY OF ANCHORAGE, Appellant, v. Marcus L. CHOQUETTE, Appellee. MUNICIPALITY OF ANCHORAGE, Appellant, v. Ricky A. HOFF, Appellee. MUNICIPALITY OF ANCHORAGE, Appellant, v. Irving J. IGTANLOC, Appellee. MUNICIPALITY OF ANCHORAGE, Appellant, v. Matthew P. KETCHUM, Appellee. MUNICIPALITY OF ANCHORAGE, Appellant, v. Rachel M.cVEY, Appellee. MUNICIPALITY OF ANCHORAGE, Appellant, v. Harold D. JOHNSON, Jr., Appellee. MUNICIPALITY OF ANCHORAGE, Appellant, v. Robert C. MURRAY, Appellee. MUNICIPALITY OF ANCHORAGE, Appellant, v. Danny P. SHADLE, Appellee. to |
| Court | Alaska Court of Appeals |
Eric A. Johnson, Asst. Atty. Gen., Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Atty. Gen., Juneau, for appellant/respondent State of Alaska.
James L. Walker, Asst. Mun. Prosecutor, and Mary K. Hughes, Mun. Atty., Anchorage, for appellant Municipality of Anchorage.
Frederick T. Slone, Kasmar and Slone, P.C., Anchorage, for appellees Harris, Jerue, and Hoff.
G. Blair McCune, Asst. Public Defender, and John B. Salemi, Public Defender, Anchorage, for petitioner Mariscal.
Eugene B. Cyrus, Anchorage, for appellee Zerkel.
Michael B. Logue, James E. Gorton & Associates, Anchorage, for appellees Beck and Choquette.
William B. Oberly, Anchorage, for appellee Igtanloc.
Michael J. Keenan, Anchorage, for appellee Ketchum.
William D. Artus, Anchorage, for appellee Konahok-McVey.
W. Grant Callow, II, Anchorage, for appellee Johnson.
Ben J. Esch, Garretson & Esch, Anchorage, for appellee Murray.
Richard D. Kibby, Anchorage, for appellee Shadle.
Before: BRYNER, C.J., and COATS and MANNHEIMER, JJ.
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. 1 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, 509 U.S. 602, 113 S.Ct. 2801, 125 L.Ed.2d 488 (1993); and Montana Department of Revenue v. Kurth Ranch, 511 U.S. 767, 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 defendant in Halper perpetrated a scheme of Medicare fraud. Halper was the manager of a laboratory that performed medical procedures covered by Medicare. He submitted 65 claims in which he falsely described the medical procedure that his laboratory had performed, so that the government paid him $12.00 per procedure instead of $3.00. Thus, Halper defrauded the government of $585 (65 times $9.00). Halper, 490 U.S. at 437, 109 S.Ct. at 1895-96.
Halper was criminally prosecuted and convicted of 65 counts of fraud; he was sentenced to 2 years' imprisonment and a $5000 fine. 490 U.S. at 437, 109 S.Ct. at 1896. The federal government then commenced a civil action against Halper under the federal False Claims Act, 31 U.S.C. §§ 3729-3731. Under Section 3729 of this act, a person who submits a false claim against the government is "liable to the United States Government for a civil penalty of $2000, [plus] an amount equal to 2 times the amount of damages the Government sustains because of the [false claim], and [the] costs of the civil action". The federal district court construed this statute to require a separate $2000 penalty for each of Halper's false claims; thus, the court believed itself obligated to impose a total penalty of $130,000 (65 times $2000) for fraudulent claims involving only $585. Halper, 490 U.S. at 438, 109 S.Ct. at 1896-97.
The federal district court refused to impose this penalty. The court ruled that such a penalty would constitute a second punishment (in violation of the double jeopardy clause) because the penalty so exceeded the government's actual loss. 490 U.S. at 439-440, 109 S.Ct. at 1896-97. The government appealed.
The Supreme Court noted that the double jeopardy clause embodies three distinct protections: the protection against a successive prosecution after a defendant has been acquitted, the protection against a successive prosecution after the defendant has been convicted, and the protection against multiple punishments for the same offense. Halper, 490 U.S. at 440, 109 S.Ct. at 1897. Because "proceedings and penalties under the civil False Claims Act are indeed civil in nature", 490 U.S. at 442, 109 S.Ct. at 1898, the proceedings against Halper under the False Claims Act did not constitute a successive prosecution. Rather, the Court declared, "[t]he third of [the double jeopardy] protections [is] the one at issue here". 490 U.S. at 440, 109 S.Ct. at 1897. "The sole question here is whether the statutory penalty authorized by the civil False Claims Act ... constitutes a second 'punishment' for the purpose of [the] double jeopardy [clause]." 490 U.S. at 441, 109 S.Ct. at 1898.
The Supreme Court held that, under the facts of a particular case, the "civil penalty authorized by the Act may be so extreme and so divorced from the Government's damages and expenses as to constitute [a] punishment" for double jeopardy purposes. Halper, 490 U.S. at 442, 109 S.Ct. at 1898.
[A] civil as well as a criminal sanction [may constitute] punishment when the sanction as applied in the individual case serves the goals of punishment[,] ... the twin aims of retribution and deterrence.... [A] civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes, is punishment [for purposes of double jeopardy analysis].... We therefore hold that under the Double Jeopardy Clause a defendant who already has been punished in a criminal prosecution may not be subjected to an additional civil sanction to the extent that the second sanction may not fairly be characterized as remedial, but only as a deterrent or [as] retribution.
Halper, 490 U.S. at 448-49, 109 S.Ct. at 1901-02 (internal citations omitted).
The Court expressly disavowed any intention of limiting civil penalties to the precise measure of the government's loss. Instead, the Court recognized that "the process of affixing a sanction that compensates the Government for all its costs inevitably involves an element of rough justice"; the Court pointed out that it had previously upheld statutes that imposed "reasonable liquidated damages" or "fixed-penalt[ies]" plus "double-damages". 490 U.S. at 449, 109 S.Ct. at 1902.
We cast no shadow on these time-honored judgments. What we announce now is a rule for the...
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