Alaska Court Rejects DWI Double Jeopardy Argument

IN THE COURTS October 1995

A ruling by the Alaska Court of Appeals rejected the argument that the immediate seizure of an intoxicated driver's license on arrest for DWI constitutes punishment for the purposes of the Fifth Amendment's Double Jeopardy Clause (State (Alaska) v. Zerkel, 57 CrL 1444, Nos. A-5773, etc. 1995WL444826, July 28, 1995).

As was reported in the September issue of NewsBriefs, many courts are throwing out defendants' drunk driving charges because of earlier license revocations. Lawyers who cite the double jeopardy bar to subsequent prosecutions and punishments argue that their clients are being punished twice -- once for the loss of the license, and then again if they are tried, convicted, and further sentenced. Double jeopardy has been found under these circumstances in drinking and driving cases in 18 states. More than 1000 people have had convictions overturned with the application.

The defense cited U.S. v. Halper, 490 U.S. 435, (1989), in which the U.S. Supreme Court said if the sanction was not for the purpose of compensating the government for expenses, then it is considered punishment. The defendants argued that license revocation upon failure of a breath test is punishment.

The Alaska Court cited Montana Department of Revenue v. Kurth Ranch, 114 S.Ct. 1937, 55 CrL 2144, (1994), and Austin v. U.S., 113 S.Ct. 2801, 53 CrL 2274, (1993), to argue that there are ways to view sanctions against defendants as other than punishment or compensation.

Revocation of a license, the court ruled, is an administrative matter, not an act of punishment. The revocation is similar to a restraining order or an injunction in that it protects the public from future harm.