NOTICE: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers are
requested to bring typographical or other formal errors to the
attention of the Clerk of the Appellate Courts, 303 K Street,
Anchorage, Alaska 99501, in order that corrections may be made
prior to permanent publication.
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
STATE OF ALASKA, )
) Court of Appeals No. A-5773
Appellant, ) Trial Court No. 3AN-94-8450 Cr
)
v. ) O P I N I O N
)
KYLE J. ZERKEL, )
)
Appellee. ) [No. 1424 - July 28, 1995]
______________________________)
CONSOLIDATED WITH:
JEHU MARISCAL, )
) Court of Appeals No. A-5739
Petitioner, ) Trial Court No. 3AN-95-288 Cr
)
v. )
)
STATE OF ALASKA, )
)
Respondent. )
______________________________)
STATE OF ALASKA, )
) Court of Appeals No. A-5774
Appellant, ) Trial Court No. 3AN-94-2890 Cr
)
v. )
)
KENNETH HARRIS, )
)
Appellee. )
______________________________)
STATE OF ALASKA, )
) Court of Appeals No. A-5775
Appellant, ) Trial Court No. 3AN-94-1534 Cr
)
v. )
)
HOWARD JERUE, JR., )
)
Appellee. )
______________________________)
MUNICIPALITY OF ANCHORAGE, )
) Court of Appeals No. A-5776
Appellant, ) Trial Court No. 3AN-94-8096 Cr
)
v. )
)
ROBERT D. BECK, )
)
Appellee. )
______________________________)
MUNICIPALITY OF ANCHORAGE, )
) Court of Appeals No. A-5777
Appellant, ) Trial Court No. 3AN-94-8561 Cr
)
v. )
)
MARCUS L. CHOQUETTE, )
)
Appellee. )
______________________________)
MUNICIPALITY OF ANCHORAGE, )
) Court of Appeals No. A-5778
Appellant, ) Trial Court No. 3AN-94-9330 Cr
)
v. )
)
RICKY A. HOFF, )
)
Appellee. )
______________________________)
MUNICIPALITY OF ANCHORAGE, )
) Court of Appeals No. A-5779
Appellant, ) Trial Court No. 3AN-94-7412 Cr
)
v. )
)
IRVING J. IGTANLOC, )
)
Appellee. )
______________________________)
MUNICIPALITY OF ANCHORAGE, )
) Court of Appeals No. A-5780
Appellant, ) Trial Court No. 3AN-94-8080 Cr
)
v. )
)
MATTHEW P. KETCHUM, )
)
Appellee. )
______________________________)
MUNICIPALITY OF ANCHORAGE, )
) Court of Appeals No. A-5781
Appellant, ) Trial Court No. 3AN-94-9333 Cr
)
v. )
)
RACHEL M. KONAHOK-McVEY, )
)
Appellee. )
______________________________)
MUNICIPALITY OF ANCHORAGE, )
) Court of Appeals No. A-5783
Appellant, ) Trial Court No. 3AN-94-7831 Cr
)
v. )
)
HAROLD D. JOHNSON, JR., )
)
Appellee. )
______________________________)
MUNICIPALITY OF ANCHORAGE, )
) Court of Appeals No. A-5784
Appellant, ) Trial Court No. 3AN-94-9036 Cr
)
v. )
)
ROBERT C. MURRAY, )
)
Appellee. )
______________________________)
MUNICIPALITY OF ANCHORAGE, )
) Court of Appeals No. A-5785
Appellant, ) Trial Court No. 3AN-94-4667 Cr
)
v. )
)
DANNY P. SHADLE, )
)
Appellee. )
______________________________)
Appeals and petition for review from the District
Court, Third Judicial District, Anchorage, Sigurd E. Murphy and
Michael L. Wolverton, Judges.
Appearances: Eric A. Johnson, Assistant Attorney
General, Office of Special Prosecutions and Appeals, Anchorage,
and Bruce M. Botelho, Attorney General, Juneau, for
Appellant/Respondent State of Alaska. James L. Walker, Assistant
Municipal Prosecutor, and Mary K. Hughes, Municipal Attorney,
Anchorage, for Appellant Municipality of Anchorage. Frederick T.
Slone, Kasmar and Slone, P.C., Anchorage, for Appellees Harris,
Jerue, and Hoff. G. Blair McCune, Assistant 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, Chief Judge, and Coats and Mannheimer,
Judges.
MANNHEIMER, Judge.
BRYNER, Chief Judge, concurring.
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, ___ U.S. ___, 113 S.Ct. 2801,
125 L.Ed.2d 488 (1993); and Montana Department of Revenue v.
Kurth Ranch, ___ U.S. ___, 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 Supreme Court's Decision in 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 rare case, the case such as the one
before us, where a fixed-penalty provision
subjects a prolific but small-gauge offender
to a sanction overwhelmingly disproportionate
to the damages he has caused.
Halper, 490 U.S. at 449, 109 S.Ct. at 1902.
The Court declared that, whenever a defendant has
already suffered a criminal penalty for illegal conduct and the
government later seeks to impose a civil penalty for the same
conduct, the defendant may raise the argument that "the civil
penalty sought in the subsequent proceeding bears no rational
relation to the goal of compensating the Government for its
loss". Such a defendant would be "entitled to an accounting of
the Government's damages and costs to determine if the penalty
sought in fact constitutes a second punishment". The trial judge
would then use this accounting to determine "the size of the
civil sanction the Government may receive without crossing the
line between remedy and punishment". Halper, 490 U.S. at 449-
450, 109 S.Ct. at 1902.2
Halper's Definition of the Distinction Between
"Remedial" and "Punitive" Sanctions, and the Supreme Court's
Later Refusal to Limit Itself to this Definition
Turning to the case before us now, the defendants argue
that, under Halper, the revocation of a driver's license must be
viewed as a "punishment" rather than a "remedy". The defendants
rely on the fact that the Supreme Court worded the test for
distinguishing a remedial sanction from a punitive sanction in
terms of whether "the civil penalty sought [by the government]
bears [any] rational relation to the goal of compensating the
[g]overnment for its loss". The defendants point out that the
government will rarely suffer a monetary loss on account of a
defendant's breath-test result or on account of a defendant's
refusal to take a breath test. Moreover, even if the government
could prove some monetary damage from the arrested driver's
conduct, the act of revoking that person's operator's license
does essentially nothing toward accomplishing the goal of
compensating the government for the monetary loss that might
attend the driver's taking or refusing the breath test. Thus,
the defendants conclude, the revocation of a driver's license
must be classified as a "punishment" rather than a "remedy".
The defendants' argument ignores the factual context of
Halper. Halper involved a civil proceeding instituted against a
person who defrauded the government of money, and it involved a
monetary penalty imposed on that person, ostensibly to compensate
the government for its loss. In such a situation, the Supreme
Court could readily frame the test for a "remedy" in terms of
whether the monetary penalty imposed on Halper in the civil
proceeding bore any relation to the monetary harm the government
had suffered.
But there are other remedies besides restoration of
lost money. According to Webster's New World Dictionary (Third
College Edition, 1988), p. 1135, a "remedy" is "[any]thing that
corrects, counteracts, or removes an evil or wrong". In its
specialized legal sense, "remedy" is defined as "a means ... by
which violation of a right is prevented or compensated for". Id.
(Emphasis added.) Thus, restraining orders, injunctions, orders
granting rescission, declaratory judgements concerning the
constitutionality or construction of statutes, and coercive fines
or imprisonment imposed under a court's civil contempt power are
all "remedies". Dan B. Dobbs, Handbook on the Law of Remedies
(1973), pp. 1-2. See Helvering v. Mitchell, 303 U.S. 391, 399;
58 S.Ct. 630, 633; 82 L.Ed. 917 (1938) ("Remedial sanctions may
be of varying types").
The Supreme Court's later decisions in Austin v. United
States and in Montana Department of Revenue v. Kurth Ranch
confirm that the "compensat[ion] ... for ... loss" phrasing used
in Halper was not intended to be the sole criterion for
determining whether a sanction should be deemed "punitive" or
"remedial". In both Austin and Kurth Ranch, the Supreme Court
used completely different criteria for evaluating whether the
challenged sanction was "remedial" or "punitive".
In Austin, the defendant was convicted of drug
offenses. In a contemporaneous civil action, the government
sought forfeiture of the defendant's mobile home and his auto
body shop under 21 U.S.C. 881(a), a federal statute authorizing
forfeiture of conveyances and real property used to commit or
facilitate the commission of drug offenses. Austin, 113 S.Ct. at
2803.
The defendant claimed that such a forfeiture violated
the Eighth Amendment's prohibition on "excessive fines", while
the government argued that the "excessive fines" clause only
applied to criminal sentences. The Supreme Court held that
"fines" for purposes of the Eighth Amendment encompassed not only
criminal fines but also any forfeiture that constituted a
"punishment". Id. at 2806 & 2810.
However, rather than using Halper's formulation and
asking whether the forfeiture could reasonably be construed as
compensating the government for loss, the Austin Court embarked
on an extended examination of the historical roots of forfeiture
as a penalty. Austin, 113 S.Ct. at 2806-2810. The Court
concluded that, with the exception of the forfeiture of
contraband, forfeiture was traditionally viewed as a type of
punishment, and the Court found nothing "in [the forfeiture]
provisions [of 21 U.S.C. 881(a)] or their legislative history
to contradict the historical understanding of forfeiture as
punishment." Id. at 2810.
Concededly, we have recognized that the
forfeiture of contraband itself may be
characterized as remedial because it removes
dangerous or illegal items from society. See
United States v. One Assortment of 89
Firearms, 465 U.S. 354, 364, 104 S.Ct. 1099,
1105, 79 L.Ed.2d 361 (1984). [We have],
however, previously ... rejected [the]
government's attempt to extend that reasoning
to [the forfeiture of] conveyances used to
transport illegal liquor. See One 1958
Plymouth Sedan v. Pennsylvania, 380 U.S. 693,
699, 85 S.Ct. 1246, 1250, 14 L.Ed.2d 170
(1965). In that case [we] noted: "There is
nothing even remotely criminal in possessing
an automobile." Ibid. The same, without
question, is true of the properties involved
here, and the Government's attempt to
characterize these properties as
"instruments" of the drug trade must meet the
same fate as Pennsylvania's effort to
characterize the 1958 Plymouth Sedan as
"contraband".
Austin, 113 S.Ct. at 2811. The Court continued:
Fundamentally, even assuming that 881
(a)(4) and (a)(7) serve some remedial
purpose, the Government's argument must fail.
"[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, as we have come to understand the
term." Halper, 490 U.S. at 448, 109 S.Ct. at
1902 (emphasis added). In light of the
historical understanding of forfeiture as
punishment, the clear focus of 881(a)(4)
and (a)(7) on the culpability of the owner,
and the evidence that Congress understood
those provisions as serving to deter and to
punish, we cannot conclude that forfeiture
under 881(a)(4) and (a)(7) serves solely a
remedial purpose. We therefore conclude that
forfeiture under these provisions constitutes
"payment to a sovereign as punishment for
some offense" [citation omitted], and, as
such, is subject to the limitations of the
Eighth Amendment's Excessive Fines Clause.
Austin, 113 S.Ct. at 2812 (footnote omitted).
Thus, Austin did not rely on Halper's "compensation for
loss" test when evaluating whether the forfeiture of a drug
offender's house and business was "remedial" or "punitive".
Rather, the Supreme Court examined "the historical understanding
of forfeiture", the "focus of [the forfeiture statute] on the
culpability of the [property] owner", and the "evidence that [the
legislature] understood [the forfeiture] provisions as serving to
deter and punish". Id.
In Montana Department of Revenue v. Kurth Ranch, the
Supreme Court made the limitations of the Halper test even more
explicit. Kurth Ranch involved a Montana family who used their
farm for the cultivation of marijuana. Each family member was
prosecuted for either possessing or conspiring to possess
marijuana with intent to sell. 114 S.Ct. at 1942. In addition,
the county instituted a forfeiture action against the cash and
equipment used in the marijuana operation. Id. Then, the State
of Montana filed suit to collect that state's tax on illegal
drugs. Under Montana law, this tax was assessed at ten percent
of the market value of the illegal drugs, or $100 per ounce of
marijuana and $250 per ounce of hashish, whichever was greater.
Id. at 1941.
According to the State of Montana's calculations, the
Kurth family's tax liability for possessing illegal drugs was
almost $900,000. This tax assessment prompted the Kurth family
to file for bankruptcy protection. Id. at 1942-43. The
bankruptcy court first decided that the proper tax assessment was
only $181,000. Then, the bankruptcy court ruled that even this
lesser tax liability was unconstitutional because collection of
the tax would violate the double jeopardy clause. Id. at 1943.
Following two more adverse rulings in higher federal courts, the
State of Montana brought its case to the Supreme Court.
The Supreme Court recognized that its decision in
Halper "does not decide the ... question whether Montana's tax
should be characterized as punishment". Kurth Ranch, 114 S.Ct.
at 1944. "Whereas fines, penalties, and forfeitures are readily
characterized as [punitive] sanctions, taxes are typically
different because they are usually motivated by revenue-raising
rather than punitive purposes." Id. at 1946.
[T]ax statutes serve a purpose quite
different from civil penalties, and Halper's
method of determining whether the exaction
was remedial or punitive "simply does not
work in the case of a tax statute". [Citing
with approval an assertion in Chief Justice
Rehnquist's dissenting opinion, 114 S.Ct. at
1950] Subjecting Montana's drug tax to
Halper's test for civil penalties is
therefore inappropriate.
Kurth Ranch, 114 S.Ct. at 1948.
For example, the Supreme Court recognized that when
evaluating a tax law it would not make sense to apply Halper's
broad statement that a civil penalty should be deemed
"punishment" if the penalty ineluctably served a "deterrent"
purpose. The Court noted that "many taxes ... such as [the]
taxes on cigarettes and alcohol" are obviously "motivated to some
extent by an interest in deterrence". 114 S.Ct. at 1946. Thus,
the Court conceded, "neither a high rate of taxation nor an
obvious deterrent purpose automatically marks [Montana's] tax
[as] a form of punishment". Id. "[W]hile a high tax rate and
deterrent purpose lend support to the characterization of the
drug tax as punishment, these features, in and of themselves, do
not necessarily render the tax punitive." Id. at 1947.
The Court then noted several "unusual features" of the
Montana tax statute that "set [it] apart from most taxes".
First, liability under Montana's tax law "is conditioned on the
commission of a crime ... and is exacted only after the taxpayer
has been arrested for the precise conduct that gives rise to the
tax obligation in the first place." 114 S.Ct. at 1947. Next,
the Court noted that taxes on illegal activities "differ ... from
mixed-motive taxes that governments impose both to deter a
disfavored [but legal] activity and to raise money". Id.
By imposing cigarette taxes, for example, a
government wants to discourage smoking. But
because the product's benefits _ such as
creating employment, satisfying consumer de-
mand, and providing tax revenues _ are
regarded as outweighing the [product's] harm,
[the] government will allow the manufacture,
sale, and use of cigarettes as long as the
manufacturers, sellers, and smokers pay high
taxes that reduce consumption and increase
government revenue. [But these]
justifications vanish when the taxed activity
is completely forbidden, for the legitimate
revenue-raising purpose that might support
such a tax could be equally well served by
increasing the fine imposed upon conviction.
Kurth Ranch, 114 S.Ct. at 1947 (footnote omitted).
Finally, the Supreme Court noted that Montana's
marijuana and hashish tax "is exceptional" because, "[a]lthough
it purports to be a species of property tax[,] ... it is levied
on goods that the taxpayer neither owns nor possesses when the
tax is imposed" _ goods that presumably have already been
destroyed before the tax is assessed. The Court concluded:
A tax on [the] "possession" of goods that no
longer exist and that the taxpayer never
lawfully possessed has an unmistakable
punitive character. This tax, imposed on
criminals and no others, departs so far from
normal revenue laws as to become a form of
punishment.
Kurth Ranch, 114 S.Ct. at 1948.
Thus, in Kurth Ranch, the Supreme Court again refused
to employ Halper's "compensation for loss" test when deciding
whether Montana's marijuana and hashish taxes were "remedial" or
"punitive". The Court recognized that, in the context of
taxation, it did not make sense to try to gauge the government's
"loss" from the defendant's activity, nor was it fruitful to ask
whether the tax was intended to deter the defendant from engaging
in the taxed activity (since many traditional taxes have
precisely this aim). Rather, the Supreme Court asked whether
Montana's tax "depart[ed] so far from normal revenue laws as to
become a form of punishment".
We therefore reject the defendants' argument that a
license revocation must be "punitive" since it does not
compensate the government for monetary loss. Just as the Supreme
Court did in Austin and Kurth Ranch, we, too, conclude that
Halper's "compensation for loss" formula simply does not apply in
the context of the case before us.
Rather, as the Supreme Court did in Austin and Kurth
Ranch, we will examine the historical background and
understanding of license revocation to determine whether license
revocation has traditionally been viewed as punitive or remedial,
and we will examine the structure and operation of Alaska's
license revocation statutes to determine what goals these
statutes advance.
Administrative Revocation of Driver's Licenses for
Driving Offenses Has Traditionally Been Viewed as Remedial, not
Punitive
The defendants argue that a driver's license is a form
of property and that revocation of the license is tantamount to a
forfeiture of property. The defendants then rely upon Austin and
United States v. $405,089.23 in U.S. Currency, 33 F.3d 1210 (9th
Cir. 1994), for the proposition that any forfeiture of property
imposed as a penalty for the commission of a crime constitutes
"punishment" for purposes of the double jeopardy clause.
The due process clauses of both the Fourteenth
Amendment to the United States Constitution and Article I,
Section 7 of the Alaska Constitution protect "life", "liberty",
and "property".3 To insure that citizens receive fair treatment
in a broad range of their dealings with government, both the
United States Supreme Court and the Alaska Supreme Court have
employed a broad definition of "property" in due process cases.
For example, the Alaska Supreme Court has classified a
driver's license as "an important property interest" for purposes
of Alaska's due process clause; the state must therefore grant a
hearing to a driver before his or her license can be revoked.
Graham v. State, 633 P.2d 211, 216 (Alaska 1981). The United
States Supreme Court has similarly ruled that a driver's license
is "property" for purposes of the Fourteenth Amendment. State
governments must observe certain procedural formalities before
they can take away a person's driver's license.
This is but an application of the general
proposition that [the due process clause]
limit[s] state power to terminate an
entitlement[,] whether the entitlement is
denominated a "right" or a "privilege".
Bell v. Burson, 402 U.S. 535, 539; 91 S.Ct. 1586, 1589; 29
L.Ed.2d 90 (1971).4
Nevertheless, a driver's license obviously is not
"property" in the everyday sense. The word "license" means "a
formal permission to do something; especially, authorization by
law to do some specified thing". Webster's New World Dictionary
(Third College Edition 1988), p. 779. A driver's license
authorizes a person to operate motor vehicles. The license can
not be purchased (except from the government), and it can not be
sold or transferred or inherited. The physical object that we
often call a "driver's license" is only a piece of plastic that
stands as evidence of the real license _ the government's
authorization. If the government has revoked a person's
authorization to drive, that person's continued possession of the
piece of plastic means nothing.
Thus, revocation of a person's license to drive motor
vehicles can not easily be equated with forfeiture of a person's
land, money, or other tangible possessions. Revocation of a
driver's license is not the equivalent of a "payment to a
sovereign", Austin, 113 S.Ct. at 2812, for it does not diminish
the driver's wealth. Rather, license revocation is akin to a
restraining order or injunction, protecting the public from
future harm by depriving an unsafe or irresponsible driver of his
or her authority to continue to operate motor vehicles.5
The government regulates many activities and
occupations. The rationale for this system of regulation is that
the public is exposed to an unacceptable risk of harm if the
activity or occupation is performed incompetently, recklessly,
dishonestly, or with intent to injure. Under these regulatory
schemes, a person must obtain a license to pursue the regulated
activity or occupation, and the government possesses the power to
revoke the license of someone whose conduct demonstrates his or
her unfitness to continue in that activity or occupation.
Driver's licenses are perhaps the most familiar example, but
attorney's licenses to practice law are similarly regulated (see
Alaska Bar Rule 15, which lists the grounds on which an
attorney's license may be revoked), and Title 8 of the Alaska
Statutes contains license revocation provisions for many other
professions.6
In many instances, the conduct that demonstrates a
person's unfitness to pursue the regulated activity or occupation
is also potentially criminal. Nevertheless, courts have
traditionally declared that administrative action to revoke a
license is distinct from any possible criminal prosecution, and
administrative revocation of the person's license is not
considered punishment for a crime.
For example, in Baker v. Fairbanks, 471 P.2d 386
(Alaska 1970), the Alaska Supreme Court extended the right of
jury trial to a defendant in any "criminal prosecution". The
court defined "criminal prosecution" to encompass any offense for
which a conviction "may result in the [defendant's] loss of a
valuable license, such as a driver's license or a license to
pursue a common calling, occupation, or business." 471 P.2d at
402. Nevertheless, the court was careful to explain that
administrative proceedings were not "criminal prosecutions" even
though they might result in revocation of a license:
This [definition of "criminal
prosecution"] does not cover revocation of
licenses pursuant to administrative
proceedings where lawful criteria other than
criminality are a proper concern in
protecting public welfare and safety, as the
basis of revocation or suspension in such
instances is not that one has committed a
criminal offense, but that the individual is
not fit to be licensed, apart from
considerations of only guilt or innocence of
crime.
Baker, 471 P.2d at 402 n.28. Twenty years later, in Wik v.
Department of Public Safety, 786 P.2d 384, 387 (Alaska 1990), the
Alaska Supreme Court echoed this view: "A [driver's] license is
not suspended to visit additional punishment on an offender, 'but
in order to protect the public against incompetent and careless
drivers.'" (quoting Robinson v. Texas Department of Public
Safety, 586 S.W.2d 604, 606 (Tex. Civ. App. 1979)).
Even after Halper, judicial consideration of this issue
remains unchanged. A person who loses a professional license in
an administrative proceeding is not subjected to "punishment" for
double jeopardy purposes, even though the revocation or
suspension is based on misconduct that could be (or has been)
prosecuted as a criminal offense. See Loui v. Board of Medical
Examiners, 889 P.2d 705, 711 (Hawai'i 1995) ("While the
imposition of the one-year revocation of Loui's license to
practice medicine [for the attempted rape of his medical
assistant] may 'carry the sting of punishment' ... [i]t is clear
that the statute in question is not designed to 'punish' Loui;
rather, it is designed to protect the public from unfit
physicians."); Kvitka v. Board of Registration In Medicine, 551
N.E.2d 915, 918 n.4 (Mass. 1990), cert. denied, 498 U.S. 823, 111
S.Ct. 74, 112 L.Ed.2d 47 (1990) ("revocation of [a] physician's
license [for unlawfully dispensing controlled substances] is
considered to be remedial under the double jeopardy clause").
See also United States v. Hudson, 14 F.3d 536, 541-42
(10th Cir. 1994) (an administrative order barring defendants from
future banking activities was not "punishment" for their illegal
activities); United States v. Payne, 2 F.3d 706, 710-11 (6th Cir.
1993) (suspension of a mail carrier for illegal conduct was not
"punishment" for double jeopardy purposes); United States v.
Furlett, 974 F.2d 839, 844 (7th Cir. 1992) (A commodities broker
defrauded his clients. In an administrative proceeding, his
license to deal commodities was revoked. He was later indicted
for con-spiracy, mail fraud, obstruction of justice, and
subornation of perjury. The broker objected that this criminal
prosecution violated the double jeopardy clause. Held: the
administrative order prohibiting the broker from engaging in
commodities trading was not "punishment" for purposes of the
double jeopardy clause); United States v. Bizzell, 921 F.2d 263,
267 (10th Cir. 1990) (Two contractors committed fraud in the sale
of various properties whose mortgages were held by the Department
of Housing and Urban Development (HUD). The Tenth Circuit ruled
that an order barring the two contractors from participating in
HUD contracts for 18 and 24 months was not "punishment" for their
fraudulent conduct. The court said, "Removal of persons whose
participation in those programs is detrimental to public purposes
is remedial by definition.").
Courts view administrative suspension or revocation of
a driver's license in exactly the same way. The license
revocation is "remedial" for double jeopardy purposes. State v.
Savard, ___ A.2d ___, 1995 WL 354210, *3 (Maine, June 6, 1995)
("We analogize the driver's license to professional licensing and
certification, which, if abused, may be revoked in the name of
public safety."); State v. Higa, ___ P.2d ___, 1995 WL 297073, *6
(Hawai'i, May 17, 1995) ("Hawai'i's [administrative license
revocation] proceedings serve legitimate, nonpunitive, and purely
remedial functions."); State v. Funke, 531 N.W.2d 124, 126 (Iowa
1995) ("This court has traditionally regarded the civil
proceedings under our habitual [driving] offender statute as
remedial, not punitive, in nature. We have repeatedly observed
that the license suspension of habitual offenders is designed not
to punish the offender but to protect the public.") (internal
quotation omitted) (citation omitted); Davidson v. MacKinnon, ___
So.2d ___, 1995 WL 325955, *2 (Fla. App., June 2, 1995) ("[T]he
administrative remedy of suspending a driver's license because of
drunk driving or other related behavior ... continues to be
primarily for the purpose of enhancing safe driving on the public
highways. Its effect is remedial in a general or universal
sense, because it removes dangerous drivers from the highways.
And, it can also be viewed as remedial for the individual driver
involved, since[,] in an intoxicated state, a driver poses a
serious danger to him or herself, as well as to others. As such,
[revocation of an intoxicated driver's license] is no more
punitive than denying a person who is legally blind a driver's
license. Both will live longer and healthier lives if they do
not drive."); State v. Young, 530 N.W.2d 269, 278 (Neb. App.
1995) ("The purpose of license revocation is to protect the
public, and not to punish the licensee. The revocation of a
driver's license is not a penalty for the violation of the
statutes or ordinances involved. ... [C]ivil license revocation
is therefore remedial and not a punishment, even though the loss
of a driver's license in our society carries a considerable
'sting'.") (internal quotation and citation omitted); Johnson v.
State, 622 A.2d 199, 205 (Md. App. 1993) ("We believe ... that
Halper leaves undisturbed cases, such as the one at bar, that
have found the revocation of voluntarily granted privileges to be
civil in nature, not punitive, and merely remedial."); Butler v.
Department of Public Safety and Corrections, 609 So.2d 790, 797
(La. 1992) ("Butler's license suspension, in contrast to Halper's
fine, bears a rational relationship to the legitimate
governmental purpose of promoting public safety on Louisiana
highways."); State v. Strong, 605 A.2d 510, 514 (Vt. 1992) ("[A]
'bright line' has developed because the nonpunitive purpose of
the license suspension is so clear and compelling."); Freeman v.
State, 611 So.2d 1260, 1261 (Fla. App. 1992), cert. denied, ___
U.S ___, 114 S.Ct. 415, 126 L.Ed.2d 361 (1993) ("[T]he purpose of
the statute providing for revocation of a driver's license upon
conviction of a licensee for driving while intoxicated is to
provide an administrative remedy for public protection and not
for punishment of the offender."); State v. Maze, 825 P.2d 1169,
1174 (Kan. App. 1992) ("The revocation of a driver's license is
part of a civil/regulatory scheme that serves a vastly different
governmental purpose from criminal punishment. Our State's
interest is to foster safety by temporarily removing from public
thoroughfares those licensees who have exhibited dangerous
behavior[.]"); Ellis v. Pierce, 282 Cal.Rptr. 93, 95 (Cal. App.
1991) ("Just as the purpose of attorney disbarment or suspension
is to protect the public by keeping unfit lawyers from practicing
law, the long-range purpose of a driver's license suspension is
to protect the public by keeping unfit drivers from driving.");
State v. Nichols, 819 P.2d 995, 999 (Ariz. App. 1991) ("[T]he
suspension of the license of an individual found guilty of
[driving while intoxicated] 'is not a criminal penalty to punish
the driver but a civil and administrative remedy to protect the
public from the impaired driver.'") (quoting Loughran v. Superior
Court, 699 P.2d 1287, 1289 (Ariz. 1985).7
Administrative Revocation of a License to Pursue a
Regulated Profession or Activity Can Serve Deterrent Purposes and
Still Be "Remedial"
From the above authorities, it is clear that
administrative suspension or revocation of a driver's license has
traditionally been viewed, not as punishment for a driver's
criminal offenses or traffic violations, but as remedial action
prompted by the need to protect the public by removing dangerous
drivers from the roads. The defendants in this appeal
nevertheless argue that, despite this historical understanding,
administrative license revocation must now be viewed as
"punishment" under Halper, Austin, and Kurth Ranch. The
defendants rely on the following language from Halper:
[T]he determination whether a given
civil sanction constitutes punishment [for
double jeopardy purposes] requires a
particularized assessment of the penalty
imposed and the purposes that the penalty may
fairly be said to serve. ... [A civil]
sanction constitutes punishment when the
sanction[,] as applied in the individual
case[,] serves the goals of punishment.
These goals are familiar[:] the twin
aims of retribution and deterrence. ...
From these premises, it follows that 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[.]
Halper, 490 U.S. at 448, 109 S.Ct. at 1901-02 (reiterated in
Austin, 113 S.Ct. at 2812).
The defendants point out that the possibility of having
one's driver's license revoked obviously serves to deter people
from driving while intoxicated and from refusing to take the
breath test. This has been recognized by the Alaska Supreme
Court. See Lundquist v. Department of Public Safety, 674 P.2d
780, 785 (Alaska 1983), where the supreme court declared that
administrative revocation of a driver's license for refusal to
take the breath test is "a non-violent means of compelling
submission to a test that provides evidence of intoxication".
Because of this deterrent purpose and effect, the
defendants argue, administrative revocation of a driver's license
serves one of the goals of punishment and therefore must be
deemed "punishment" under Halper and Austin. We conclude,
however, that the defendants have read Halper and Austin too
broadly. As explained in more detail below, we conclude that
when the legislature employs a licensing scheme to regulate a
profession or an activity affecting the public health or safety,
a statute that authorizes a regulatory body to revoke these
licenses is "remedial" for double jeopardy purposes even though
the law serves to deter licensees from engaging in conduct that
is inconsistent with their duties as licensees or that is
inconsistent with the public welfare.
The statutes challenged in the present appeal allow
administrative revocation of a person's driver's license if that
person has a blood-alcohol level of .10 percent or greater, or if
that person refuses to take the breath test. As phrased by the
Supreme Court in Halper, the question this court faces is whether
administrative license revocation on these two bases is "so
divorced from any remedial goal that it constitutes 'punishment'
[under] double jeopardy analysis." Halper, 490 U.S. at 443, 109
S.Ct. at 1899. We have no difficulty concluding that substantial
remedial purposes underlie the challenged statutes.
A person who operates a motor vehicle when his or her
blood-alcohol level is .10 percent or higher poses a clear danger
to the public welfare. A person's willingness to engage in such
dangerous conduct justifies the inference that his or her
continued authorization to drive will likewise pose a danger to
the public. The government may act to remedy this danger by
revoking the person's driver's license.
While one might suspect that drivers who refuse the
breath test believe themselves to be intoxicated, the Alaska
Supreme Court has declared that a different remedial goal
justifies revoking a driver's license on account of a breath-test
refusal. Under Alaska law, all persons who apply for a driver's
license are deemed to have consented to a police-administered
chemical test of their breath if they are ever lawfully arrested
for driving while intoxicated. AS 28.35.031(a). If a driver
refuses to take this breath test, then (regardless of whether the
driver is actually intoxicated or not) the driver has broken his
or her agreement with the government, and the government can
revoke his or her license. Lundquist, 674 P.2d at 783 & 785.
For these reasons, we conclude that the administrative
revocation of the defendants' driver's licenses is premised on
remedial goals. We further conclude that the remedial character
of administrative license revocation is not defeated by the fact
the license revocation statutes also play a role in deterring
misconduct.
We accept the defendants' assertion that administrative
revocation of a driver's license may serve to deter that driver
from future misconduct and may have a deterrent effect on other
drivers who contemplate either driving while intoxicated or
refusing the breath test. Indeed, it would be naive to suggest
that the legislature did not hope to deter misconduct when it
enacted the statutes that allow administrative revocation of
licenses _ not only driver's licenses, but also the many
professional and business licenses covered by Title 8. It is
obvious that deterrence of misconduct will be one practical
effect of any regulatory scheme that allows the government to
revoke a license that authorizes a person to drive motor vehicles
or to pursue a livelihood. But this deterrent purpose does not
mean that administrative revocation of these licenses is
"punishment" for purposes of the double jeopardy clause.
True, Halper declares that if a civil monetary penalty
can not be explained wholly in terms of remedial goals but must
be explained, at least in part, as serving the goal of
deterrence, then that civil monetary penalty constitutes
"punishment" for double jeopardy purposes. But the monetary
penalty at issue in Halper was ostensibly intended to compensate
the government for monetary loss stemming from Halper's fraud.
In such a context, the Supreme Court could justifiably state that
the government's declared aim of restitution had to be divorced
from the aim of deterrence.
In Kurth Ranch, on the other hand, the Supreme Court
acknowledged that other types of non-punitive sanctions could
legitimately include deterrent aspects. Analyzing the double
jeopardy status of Montana's tax on illegal drugs, the Supreme
Court recognized that normal taxes are often intended, at least
in part, to deter people from engaging in the taxed activity.
The Court therefore declared that the Halper test did not apply
to the situation before it. Instead of asking whether Montana's
tax was intended to deter people from using illegal drugs, the
Supreme Court asked instead whether Montana's tax "depart[ed] so
far from normal revenue laws as to become a form of punishment".
Kurth Ranch, 114 S.Ct. at 1948.
Returning to administrative revocation of driver's
licenses, the courts that have dealt most cogently with this
problem have acknowledged that revocation of a driver's license
based on the driver's misconduct does have a deterrent aspect.
Nevertheless, these courts have held that administrative
revocation remains "remedial". See State v. Savard, ___ A.2d
___, 1995 WL 354210, *4 (Me., June 6, 1995) ("Although we
acknowledge that any suspension may have a deterrent effect on
the law-abiding public, our analysis does not focus on that
perspective. In the eyes of the defendant[,] even remedial
sanctions may carry a 'sting of punishment.'") (quoting Halper,
490 U.S. at 447 & n.7; 109 S.Ct. at 1901 & n.7); State v. Strong,
605 A.2d at 513 ("Although there is an element of deterrence to
the summary suspension of an operator's license, this element is
present in any loss of [a] license or privilege[;] [it] is not
the primary focus of this statutory scheme."); Butler v.
Department of Public Safety, 609 So.2d at 797 ("While this court
recognizes that the Implied Consent Law, like the Motor Vehicle
Habitual Offender Law, is to some extent deterrent ... because
the statute attempts to discourage the repetition of criminal
acts, this court has previously stated that ... deterrence may be
a valid objective of a regulatory statute. The statute's primary
effect is remedial; it removes those drivers from our state
highways who have been proven to be reckless or hazardous.")
(internal citation omitted).
We, too, conclude that administrative revocation of a
driver's license is "remedial" even though it may have a
deterrent goal and may achieve some deterrent effect. We hold
that, when the government employs a licensing scheme to regulate
a profession or an activity that affects the public welfare,
administrative revocation or suspension of that license can
legitimately serve to deter conduct and still remain "remedial"
for double jeopardy purposes so long as the revocation or
suspension is based on conduct that bears a direct relation to
the government's regulatory goals or to the proper administration
and enforcement of the regulatory scheme.
Our conclusion is consistent with, and based upon, the
Supreme Court's decisions in Austin and Kurth Ranch. In Austin,
the Supreme Court acknowledged that, even though most forfeitures
are understood as "punitive", the forfeiture of dangerous
substances and contraband is "remedial". Austin, 113 S.Ct. at
2811. Implicit in Austin's treatment of these remedial
forfeitures is the idea that forfeiture of dangerous substances
or contraband remains "remedial" even though such a forfeiture or
the threat of such a forfeiture (that is, the threat of losing
property that one has paid money for) may deter people from
purchasing or dealing in dangerous substances or contraband.
What was implicit in Austin was made explicit in Kurth Ranch.
There, the Supreme Court acknowledged that a proceeding to
collect taxes is normally not "punishment" even though one
legitimate purpose of taxation is deterrence of a disfavored
activity. Kurth Ranch, 114 S.Ct. at 1946-47.
Reading Halper, Austin, and Kurth Ranch together, the
Supreme Court has said that deterrence is not a legitimate goal
of the kind of civil penalty at issue in Halper (a penalty
designed to achieve "rough" restitution for monetary loss), but
deterrence can be a legitimate component of other sorts of non-
punitive sanctions. Just as the Supreme Court declined to
unreflectively apply the Halper test in Austin and Kurth Ranch,
we conclude that Halper's statements about deterrence do not
govern the cases before us.
Administrative license revocation is premised on
substantial remedial purposes. Even though administrative
license revocation has always contained an element of deterrence,
the case law demonstrates that it has traditionally been viewed
as remedial rather than punitive. We conclude that
administrative license revocation continues to be a "remedial"
sanction, not a "punitive" sanction, for purposes of the federal
double jeopardy clause.8 Therefore, the administrative
revocation of the defendants' licenses is no impediment to their
later prosecution for driving while intoxicated, refusing the
breath test, or both.9
Conclusion
In the appeals brought by the State of Alaska and the
Municipality of Anchorage, the judgements of the district court
are REVERSED. In the petition for review (file number A-5739),
the judgement of the district court is AFFIRMED. All of these
cases are remanded to the district court for further proceedings
on the complaints or informations filed against the defendants.
Bryner, Chief Judge, concurring.
I agree with the court's opinion and I write separately
only to emphasize what I see as its core rationale. Whenever the
public welfare justifies regulating an activity by implementing
and enforcing a licensing requirement, the state will necessarily
have a legitimate regulatory _ that is, non-punitive _ interest
in encouraging compliance with the regulations upon which the
original issuance and continued validity of the license are
conditioned. Conversely, the state will necessarily have a
legitimate regulatory interest in deterring noncompliance with
these regulations. Thus, in the particular context of a licensed
activity, enforcement efforts by the state will always play an
essentially remedial role, even if one of the avowed purposes of
those efforts is deterrence.
This is not to say that all measures aimed at deterring
noncompliance with the laws regulating a licensed activity must
be deemed non-punitive. The imposition of sanctions having no
direct connection to the regulation of the licensed activity
certainly might be deemed punitive in some cases. But the
sanction of suspending or revoking a license for noncompliance
with the conditions governing its very issuance or continued
existence necessarily bears an inherent relationship to the
remedial goal of restoring regulatory compliance. Indeed, it is
difficult to conceive of any sanction that could more directly
remedy a licensee's noncompliance with the regulations governing
a licensed activity than suspending or revoking the license
itself. Accordingly, under the standards set out in Halper,
Austin, and Kurth Ranch, the sanction at issue in the current
cases _ suspension or revocation of a driver's license for
violation of the laws governing the licensed activity of driving
_ is necessarily remedial, not punitive.
_______________________________
1 It appears that the district court acted inadvertently when it dismissed the
charges of driving with a suspended or revoked license. The defendants'
motions addressed only the double jeopardy implications of the DWI and/or
breath-test refusal charges. The district court's written decision was
likewise limited to this issue.
Driving with a suspended or revoked license is a separate offense from refusing
to take a breath test or driving with a blood-alcohol level of .10 percent
or higher. Whether or not the administrative revocation of the defendants'
licenses constituted "punishment" for the latter two offenses, the
defendants charged with driving with a suspended or revoked license had not
previously faced sanctions (either civil or criminal) for that conduct.
Those charges should not have been dismissed.
2 In their brief, the defendants argue that any "sanction" is necessarily
punitive _ that a sanction can never be "remedial" for purposes of federal
double jeopardy analysis. However, as exem-plified by the just-quoted
portion of Halper, (in which the Court refers to the permissible "size of
the civil sanction the Government may receive") (emphasis added), the
Supreme Court has not chosen to employ the word "sanction" in the limited
sense suggested by the defendants. Rather, throughout the Halper opinion,
the Court uses the word "sanction" in its broader sense of "whatever the
government does to someone".
Halper repeatedly refers to sanctions as capable of being either punitive or
remedial. For example, when discussing its previous decision in Helvering
v. Mitchell (which held that the statutory fifty-percent penalty on
delinquent taxes was not a second criminal punishment), the Halper Court
said:
Whether the statutory sanction was criminal in nature, the [Mitchell] Court
held, was a question of statutory interpretation; and, applying traditional
canons of construction, the Court had little difficulty concluding that ...
the deficiency sanction was in fact remedial[.] Since "in the civil
enforcement of a remedial sanction there can be no double
jeopardy", id. at 404, 58 S.Ct. at 636, the Court rejected Mitchell's claim.
Mitchell ... makes clear that the Government may impose both a criminal and
a civil sanction with respect to the same act or omission[.]
Halper, 490 U.S. at 442-43, 109 S.Ct. at 1898-99 (discussing Helvering v. Mitchell,
303 U.S. 391, 58 S.Ct. 630, 82 L.Ed.2d 917 (1938)) (internal citations
omitted).
3 The pertinent portion of the Fourteenth Amendment declares, "nor shall any
state deprive any person of life, liberty, or property without due process
of law". The pertinent portion of Article I, Section 7 states, "No person
shall be deprived of life, liberty, or property without due process of
law."
4 Alaska's due process clause affords drivers greater procedural protection
than drivers enjoy under federal constitutional law. Although the
Fourteenth Amendment requires states to provide a hearing to a person whose
driver's license is revoked because of a breath-test refusal, states may
nevertheless summarily revoke the person's license at the time of the
breath-test refusal and schedule the hearing later. Mackey v. Montrym, 443
U.S. 1, 99 S.Ct. 2612, 61 L.Ed.2d 321 (1979). Under the Alaska
Constitution, on the other hand, a driver is entitled to demand a hearing
before the revocation. Graham, 633 P.2d at 216.
The defendants in this case argue that the license revocation procedure codified
in AS 28.15.165-166 can not possibly be "remedial" because the statutes do
not impose immediate license revocation on a driver who refuses to take the
breath test or who tests at .10 or greater. The defendants argue that
these statutes can not be intended to rid the highways of dangerous drivers
because the statutes allow a driver to keep his or her license for at least
7 days (longer, if the driver requests a hearing). However, both the 7-day
grace period and the continuing authorization to drive pending the
administrative hearing appear to be directly attributable to the Alaska
Supreme Court's decision in Graham.
5 Moreover, even if we were to draw an analogy between revocation of a driver's
license and forfeiture of tangible property, this does not lead to the
conclusion that the government inflicts "punishment" (for purposes of the
double jeopardy clause) whenever the government revokes a person's driver's
license for driving misconduct. Not all forfeitures of property are
punitive. A forfeiture can be "remedial" if it is limited to seizing items
that are themselves unlawful or dangerous.
For example, in Austin, the Court expressly distinguished forfeiture of
contraband from forfeiture of a contraband dealer's home or business
property:
[W]e have recognized that the forfeiture of contraband itself may be
characterized as remedial because it removes dangerous or illegal items
from society. See United States v. One Assortment of 89 Firearms, 465 U.S.
354, 364, 104 S.Ct. 1099, 1105, 79 L.Ed.2d 361 (1984).
Austin, 113 S.Ct. at 2811. The Court in Austin concluded that forfeiture of a
contraband dealer's home and business could only be viewed as "payment to a
sovereign as punishment for [his or her] offense". Id. at 2812. But
neither Austin nor Kurth Ranch questions the pre-existing rule that
forfeiture of dangerous items themselves is a "remedial" sanction.
Thus, even if we were to liken revocation of a driver's license to forfeiture of
property, the closest forfeiture analogy would be forfeiture of contraband
_ forfeiture of items that are themselves hazardous to the public welfare.
When a person's conduct shows that he or she is unwilling to abide by the
terms of a driver's license, or shows that he or she can not be trusted to
drive safely, then that person's continuing authorization to drive is
itself a hazard to the public welfare, a potential instrument of public
harm. Revocation or "forfeiture" of this authorization is remedial.
6 Under AS 8.04.450, the Board of Public Accountancy may revoke the license of
an accountant for violation of the statutes and regulations governing the
profession, as well as for "dishonesty or gross negligence in the practice
of public accounting", for conviction of any felony, and for conviction of
any crime "an essential element of which is dishonesty or fraud". Under AS
8.06.070, the Department of Commerce and Economic Development may revoke an
acupuncturist's license for "deceit, fraud, or intentional
misrepresentation in the course of providing professional services", as
well as for conviction of "a felony or other crime that affects the
licensee's ability to continue to practice competently and safely". And
see AS 8.11.080 (similar license revocation provisions for audiologists);
AS 8.20.170 (chiropractors); AS 8.32.160 (dental hygienists); AS 8.36.315
(dentists); AS 8.45.060 (naturopaths); AS 8.64.326 (physicians,
podiatrists, and osteopaths); AS 8.68.270 (nurses); AS 8.70.155 (nursing
home administrators); AS 8.72.240 (optometrists); AS 8.80.261
(pharmacists); AS 8.84.120 (physical therapists and occupational
therapists); AS 8.86.204 (psychologists); AS 8.87.210 (real estate
appraisers); AS 8.98.235 (veterinarians).
See also AS 8.18.123 (contractors can have their licenses revoked for
"engag[ing] in fraudulent practices"); AS 8.40.170 (similar provision for
electrical administrators); AS 8.40.320 (mechanical administrators); AS
8.42.090 (morticians); AS 8.48.111 (architects); AS 8.54.500 (hunting
guides); AS 8.55.130 (hearing aid dealers); AS 8.62.150 (marine pilots); AS
8.71.170 (dispensing opticians); AS 8.88.071 (real estate brokers).
7 The only reported case to the contrary is Johnson v. State Hearing Examiner's
Office, 838 P.2d 158 (Wyo. 1992), involving a statute that called for
automatic suspension of a minor's driver's
license if the minor was convicted of consuming alcohol. The Wyoming Supreme Court
ruled that this statute subjected the minor to an unlawful second
punishment. The Wyoming court decided this constitutional question even
though the issue was "generally not briefed by the litigants" and even
though the Wyoming court could find "only one Halper case ... of [any]
relevance" (the California Court of Appeal's decision in Ellis v. Pierce,
supra). Johnson, 838 P.2d at 179.
8 In one exhortatory paragraph that cites no pertinent legal authority, the
defendants urge us to declare that administrative revocation of driver's
licenses constitutes "punishment" for purposes of the double jeopardy
clause of the Alaska Constitution (Article I, Section 9), even if we
conclude that administrative revocation is remedial for purposes of the
Federal Constitution.
When a defendant asserts that the Alaska Constitution affords greater
protection than the corresponding provision of the Federal Constitution, it
is the defendant's burden to demonstrate something in the text, context, or
history of the Alaska Constitution that justifies this divergent
interpretation. See e.g., Abood v. League of Women Voters, 743 P.2d 333,
340-43 (Alaska 1987); State v. Wassillie, 606 P.2d 1279, 1281-82 (Alaska
1980); Annas v. State, 726 P.2d 552, 556 n.3 (Alaska App. 1986); State v.
Dankworth, 672 P.2d 148, 151 (Alaska App. 1983). Given the defendants'
inadequate briefing, this argument is waived.
9 Our resolution of this issue makes it unnecessary for us to address the
Municipality of Anchorage's argument that the Municipality is a distinct
sovereign government, separate from the State of Alaska, for purposes of
the double jeopardy clause. See, however, Waller v. Florida, 397 U.S. 387,
90 S.Ct. 1184, 25 L.Ed.2d 435 (1970) (a state and its municipalities are
not separate sovereigns for double jeopardy purposes), and Article X of the
Alaska Constitution.
