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State v. Esmailka (7/24/98) ap-1597
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-6674
Appellant, ) Trial Court No. 3AN-97-3425 Cr
)
v. ) O P I N I O N
)
SHARILYNN ESMAILKA, )
)
Appellee. ) [No. 1597 - July 24, 1998]
______________________________)
Appeal from the District Court, Third Judicial
District, Anchorage, Paul E. Olson, Judge.
Appearances: Eric A. Johnson, Assistant
Attorney General, Office of Special Prosecutions and Appeals,
Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for
Appellant. Daniel Lowery, Assistant Public Defender, and Barbara
K. Brink, Public Defender, Anchorage, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
MANNHEIMER, Judge.
The possession or consumption of alcoholic beverages by
a person under the age of 21 is a "violation", an offense punishable
only by a fine (a fine of not less than $100). [Fn. 1] However,
a person under the age of 21 who possesses or consumes alcohol faces
a more substantial civil penalty: the legislature has authorized
the Department of Public Safety to administratively revoke the
driver's license of a person under the age of 21 (and at least 14)
who possesses or consumes alcohol. [Fn. 2]
The defendant in this case, Sharilynn Esmailka, is a 15-
year-old who was arrested for consuming alcoholic beverages. While
Esmailka was awaiting her criminal trial, the Department of Public
Safety notified her that, because she had possessed or consumed
alcoholic beverages, the Department intended to take administrative
action against her driver's license (or, more precisely, the
Department intended to enter an administrative order prohibiting
Esmailka from obtaining a driver's license.) In this same notice,
the Department informed Esmailka that she was entitled to a hearing
to dispute the allegation. Apparently, however, Esmailka chose not
to request a hearing, so the Department proceeded with its planned
administrative action.
After the Department administratively revoked her
privilege to drive, Esmailka asked the district court to dismiss her
criminal case. Esmailka contended that the Department of Public
Safety's action constituted a "punishment" for purposes of the
double jeopardy clauses of the federal and state constitutions. [Fn.
3] Based on this premise (that administrative revocation of a
driver's license is a "punishment"), Esmailka argued that she had
already been punished once for her drinking, and that any further
punishment that might be imposed in the criminal case would
constitute an unlawful second punishment for the same offense.
The district court agreed with Esmailka and dismissed the
criminal charge. The State now appeals.
The task in this appeal is to sort out the various legal
doctrines that collide here. Our analysis begins with the United
States Supreme Court's decision in United States v. Halper. [Fn.
4]
In Halper, the Supreme Court declared that an administra-
tive penalty that is, an ostensibly civil penalty could
constitute a "punishment" under the double jeopardy clause if the
penalty served either a retributive or a deterrent purpose. [Fn.
5] The Halper decision led to wide-spread litigation concerning
whether a state could constitutionally prosecute a driver for
violating a traffic law after the state had administratively revoked
the person's driver's license based on the same conduct. In State
v. Zerkel [Fn. 6], we confronted such litigation; we held that
administrative revocation of a license would not constitute
"punishment" for double jeopardy purposes "so long as the revocation
... 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." [Fn. 7]
Two years later, in Rexford v. State [Fn. 8], a minor who
was charged with consuming alcohol used this passage from Zerkel to
attack the statutes in Title 28 that authorize the Department of
Public Safety to administratively revoke a minor's driver's license
if the minor consumes or possesses alcoholic beverages. Rexford
asserted that minors, just like adults, could drink alcoholic
beverages from time to time and still be safe drivers. Rexford
conceded that there would be a rational basis for revoking the
driver's license of a minor who drank while in control of a vehicle,
but Rexford argued that there was no rational basis for the
legislature's decision to revoke the driver's license of all minors
caught drinking under any circumstances. Thus, Rexford contended,
the legislature exceeded its constitutional powers when it enacted
AS 28.15.183-184.
For these same reasons, Rexford contended that the State
had "punished" him (within the meaning of the double jeopardy
clause) when the Department of Public Safety administratively
revoked his privilege to drive. According to Rexford, the State's
revocation of his license amounted to "punishment" for double
jeopardy purposes because it failed the test set forth in Zerkel:
the basis for the revocation (a minor's possession or consumption
of alcoholic beverages) did not bear "a direct relation to the
government's regulatory goals".
The trial judge in Rexford rejected the minor's arguments
because she found, based on published studies of teenage driving
behavior, that there was a significant link between teenage drinking
and teenagers' likelihood of engaging in dangerous driving. [Fn.
9] On appeal, Rexford did not attempt to rebut these studies;
indeed, he did not even address them. [Fn. 10] We affirmed
Rexford's conviction based on the district court's findings. [Fn.
11]
We now reach the present day, and the present case. The
State argues that Rexford controls Esmailka's case and that, under
Rexford, the district court should not have dismissed the criminal
prosecution against Esmailka. Esmailka, for her part, argues that
Rexford was wrongly decided. She asserts that the studies
underlying Rexford are outdated and flawed, and that there really
is no rational relationship between a minor's willingness to engage
in under-age drinking and the same minor's ability to safely drive
motor vehicles.
Regardless of what the statistics show, Esmailka's
argument ultimately rests on the "direct relation" test announced
in Zerkel the concept that an administrative penalty is not a
"punishment" if it bears a rational relationship to the state's
regulatory aims. This Zerkel test was an attempt to clarify the
limits of the new double jeopardy doctrine announced by the United
States Supreme Court in Halper: the doctrine that an administrative
penalty would be deemed a "punishment" if it served a deterrent
purpose. But the Supreme Court has now recognized that Halper's
"deterrent purpose" double jeopardy analysis was bad law.
In Hudson v. United States [Fn. 12], the Court declared
that "Halper's deviation from longstanding double jeopardy
principles was ill[-]considered". [Fn. 13] The Court concluded that
"subsequent cases have demonstrated [that] Halper's test for
determining whether a particular sanction is 'punitive' ... has
proved unworkable[, since] all civil penalties have some deterrent
effect." [Fn. 14] Disavowing Halper, the Court returned to its pre-
Halper analysis of civil penalties the analysis exemplified in
United States v. Ward. [Fn. 15]
Under the double jeopardy analysis employed in Ward and
Hudson [Fn. 16], it appears that the federal double jeopardy clause
would apply to few (if any) administrative revocations of driver's
licenses. This sea change in federal double jeopardy law suggests
that we should carefully scrutinize any proposal to interpret
Zerkelin a way that expands double jeopardy analysis past its current
federal boundaries. As explained above, Zerkel was an attempt to
deal with the novel federal double jeopardy analysis announced in
Halper. Now that the Supreme Court has repudiated Halper, it would
be ironic if Zerkel were interpreted to call for a different, more
intrusive double jeopardy analysis than is currently required under
federal law.
Ultimately, the task at the heart of Esmailka's appeal is
to determine what legal consequences flow from Esmailka's primary
claim her contention that the Alaska Legislature had no rational
basis for authorizing the Department of Public Safety to revoke the
driving privileges of minors who possess or consume alcohol (in
circumstances unconnected to driving or control of motor vehicles).
Phrased another way: if Esmailka is correct when she asserts that
there is no demonstrable relationship between under-age drinking and
dangerous driving, what is her remedy?
Upon reflection, we believe that we adopted a mistaken
approach to this issue when we confronted it before in Rexford. In
Rexford, we implicitly adopted the legal position argued by the
parties the position that, if there was no rational relation
between under-age possession or consumption of alcohol and dangerous
driving, then revocation of a minor's driver's license for
possessing or consuming alcohol would constitute a "punishment" for
double jeopardy purposes, thus barring any subsequent criminal
prosecution for an offense based on the same conduct. This approach
does not make sense.
We first take one mental step backward, to put the problem
in perspective. No one questions the authority of the legislature
to prohibit and punish under-age possession or consumption of
alcoholic beverages. The question is whether the legislature can
lawfully impose a loss of driving privileges as an administrative
penalty for this conduct.
Let us assume for purposes of argument that, as Esmailka
contends, the legislature has no rational basis for revoking the
driving privilege of minors who possess or consume alcohol.
Esmailka asks us to uphold this irrational license revocation, deem
it a "punishment" for double jeopardy purposes, and then prohibit
the State from prosecuting Esmailka for a concededly valid criminal
offense under-age possession or consumption of alcohol. This does
not follow. If, as Esmailka argues, the legislature's action lacks
any rational basis if the legislature violated the guarantee of
substantive due process or equal protection when it enacted
AS 28.15.183-184 and authorized administrative revocation of
Esmailka's privilege to drive then Esmailka's remedy would be to
invalidate the license revocation, not uphold the license revocation
and invalidate the criminal prosecution.
We faced a similar contention in Aaron v. Ketchikan. [Fn.
17] The defendant in Aaron refused to submit to a breath test when
he was arrested for driving while intoxicated. Based on his
refusal, Aaron suffered administrative revocation of his driver's
license, and he was also charged with the criminal offense of
refusing the breath test. Aaron argued that, because of certain
procedural infirmities, he had been denied due process during the
Department of Public Safety's administrative proceedings, and thus
the administrative revocation of his license had been unlawful.
Aaron then asserted that, because he had been subjected to an
unlawful license revocation, the district court should have
dismissed the DWI prosecution. We rejected this contention:
[T]he procedural infirmity in the Department's
administrative actions would not affect the question of whether the
administrative loss of [a] driver's license constitute[s] a "punish-
ment" for double jeopardy purposes. [The aggrieved person's] remedy
would be to seek re-opening or review of the Department's
administrative action.
Aaron, 927 P.2d at 337 n.2.
Applying this reasoning to Esmailka's case, we conclude
that even if the legislature exceeded its constitutional powers when
it authorized the Department of Public Safety to administratively
revoke the driving privileges of minors who possess or consume
alcoholic beverages, Esmailka's remedy would be to seek judicial
review and invalidation of the legislature's action. (We note that
such litigation is currently before the Alaska Supreme Court; the
case is State v. Quinn, File No. S-8003.) The asserted unconstitu-
tionality of the legislature's action (and the asserted unlawfulness
of the administrative revocation of Esmailka's privilege to drive
motor vehicles) should not immunize Esmailka from the criminal
consequences of her illegal use of alcoholic beverages.
For these reasons, we disavow our suggestion in Rexford
that an irrational or otherwise unconstitutional administrative
revocation of a person's driver's license will immunize that person
from prosecution for the underlying criminal conduct. If the
license revocation is unconstitutional, the aggrieved person's
remedy is to attack the license revocation.
It follows that we need not resolve Esmailka's contention
that the statistical studies summarized in Rexford are flawed.
Regardless of what the statistics show, and regardless of whether
there was a rational basis for the legislature's enactment of
AS 28.15.183-184, the criminal prosecution against Esmailka for
under-age consumption of alcohol should and can proceed.
The judgement of the district court is REVERSED. This
case is remanded to the district court for further proceedings on
the criminal complaint filed against Esmailka.
FOOTNOTES
Footnote 1:
AS 4.16.050.
Footnote 2:
AS 28.15.183-184.
Footnote 3:
United States Constitution, Fifth and Fourteenth Amendments;
Alaska Constitution, Article I, Section 9.
Footnote 4:
490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989).
Footnote 5:
490 U.S. at 448-49, 109 S.Ct. at 1901-02.
Footnote 6:
900 P.2d 744 (Alaska App. 1995).
Footnote 7:
900 P.2d at 757.
Footnote 8:
941 P.2d 906 (Alaska App. 1997).
Footnote 9:
Rexford, 941 P.2d at 907.
Footnote 10:
Id.
Footnote 11:
Id.
Footnote 12:
___ U.S. ___, 118 S.Ct. 488 (1997).
Footnote 13:
118 S.Ct. at 494.
Footnote 14:
Id.
Footnote 15:
448 U.S. 242, 248-49; 100 S.Ct. 2636, 2641-42; 65 L.Ed.2d 742
(1980).
Footnote 16:
See Hudson, 118 S.Ct. at 495-96.
Footnote 17:
927 P.2d 335, 337 n.2 (Alaska App. 1996).
