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correction before publication in the Pacific
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
WILLIAM O. AARON, )
) Court of Appeals No. A-6067
Appellant, ) Trial Court No. 1KE-95-415 Cr
)
v. ) O P I N I O N
)
CITY OF KETCHIKAN, )
)
Appellee. ) [No. 1499 - November 22, 1996]
______________________________)
Appeal from the District Court, First Judicial
District, Ketchikan, Patricia A. Collins,
Judge.
Appearances: Michael J. Zelensky, Ketchikan,
for Appellant. Steven H. Schweppe, City Attor-
ney, Ketchikan, for Appellee.
Before: Bryner, Chief Judge, and Coats and
Mannheimer, Judges.
MANNHEIMER, Judge.
William O. Aaron appeals his conviction for refusing to
submit to a chemical test of his breath following his arrest for
driving while intoxicated, Ketchikan Municipal Code  10.40.040(d).
Aaron's basic contention is that the City of Ketchikan could not
prosecute him for refusing to take the breath test because the
Alaska Department of Public Safety had already taken administrative
action against Aaron's driver's license based on the same incident.
We affirm Aaron's conviction.
Aaron asserts that, after his driver's license was
administratively suspended, his prosecution for breath-test refusal
constituted a second jeopardy for the same conduct. Aaron
recognizes that we rejected this same double jeopardy argument in
State v. Zerkel, 900 P.2d 744 (Alaska App. 1995), and that, under
the doctrine of stare decisis, Zerkel is dispositive of his double
jeopardy claim under the federal Constitution. (EN1) Aaron argues,
however, that the double jeopardy clause of the Alaska Constitution
(Article I, Section 9) should be interpreted differently on this
issue from its federal counterpart.
In Zerkel, we expressly declined to decide this double
jeopardy issue under the Alaska Constitution. 900 P.2d at 758 n.8.
However, we did explain the rule governing such claims under the
state 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 justi-
fies 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).
Zerkel, 900 P.2d at 758 n.8. Aaron has failed to meet this require-
ment; he has not provided us with any authority to support his
argument that the Alaska guarantee against double jeopardy was
intended to be interpreted differently from its federal counterpart
on the question of whether the government may subject a person to
both administrative proceedings and a criminal prosecution based on
the same conduct.
Although Aaron fails to present any argument based on the
text or history of the Alaska double jeopardy clause, he neverthe
less argues that our double jeopardy clause should be interpreted
to give greater protection than the corresponding federal clause
when a person suffers the loss of a driver's license. Aaron points
out that a driver's license is often important to a person's
livelihood, and he asserts that deprivation of a driver's license
infringes upon a person's constitutional right to travel.
While Aaron's arguments certainly support the conclusion
that the government must provide a person with a fair opportunity
to be heard before it takes action against the person's driver's
license, Aaron cites no authority pertinent to the question before
this court: whether a state inflicts þpunishmentþ on a driver when
it suspends or revokes his license in administrative proceedings
based upon evidence that he has violated the rules governing this
licensed activity. In Zerkel, we answered this question in the
negative, and we reiterate that conclusion here. (EN2)
We hold that Alaska's double jeopardy clause should be
interpreted in the same manner as we interpreted the federal double
jeopardy clause in Zerkel. The fact that the Department of Public
Safety had previously taken administrative action against Aaron's
driver's license (based on his refusal to submit to the breath test)
did not preclude the City of Ketchikan from prosecuting Aaron for
the crime of refusing to submit to the breath test. The judgement
of the district court is AFFIRMED.
ENDNOTES:
1. We note that the United States Supreme Court recently rejected
the primary argument presented by the defendants in Zerkel þ that
civil forfeiture must be considered þpunishmentþ for double
jeopardy purposes because it serves a deterrent purpose. See
United States v. Ursery, 518 U.S. ___, 116 S.Ct. 2135, 135 L.Ed.2d
549 (1996).
2. In his brief, Aaron asserts that the Department of Public
Safety often gives little or no notice before it takes
administrative action against the license of a driver arrested for
driving while intoxicated or refusing the breath test. However,
Aaron does not assert that he himself was denied adequate notice of
the administrative proceedings in his case. Moreover, even if
Aaron had been denied administrative due process, the procedural
infirmity in the Department's administrative actions would not
affect the question of whether the administrative loss of Aaron's
driver's license constituted a þpunishmentþ for double jeopardy
purposes. Aaron's remedy would be to seek re-opening or review of
the Department's administrative action.
