Municipality of Anchorage v. Skagen

920 P.2d 284, 1996 Alas. App. LEXIS 26, 1996 WL 339886
CourtCourt of Appeals of Alaska
DecidedJune 21, 1996
DocketNos. A-5765, A-5795
StatusPublished
Cited by1 cases

This text of 920 P.2d 284 (Municipality of Anchorage v. Skagen) is published on Counsel Stack Legal Research, covering Court of Appeals of Alaska primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Municipality of Anchorage v. Skagen, 920 P.2d 284, 1996 Alas. App. LEXIS 26, 1996 WL 339886 (Ala. Ct. App. 1996).

Opinion

OPINION

MANNHEIMER, Judge.

William M. Skagen was charged with two violations of the Anchorage Municipal Code: driving while intoxicated, AMC § 9.28.020A, and refusing to take a breath test, AMC § 9.28.022C. While Skagen awaited trial, the Municipality commenced a civil forfeiture proceeding against his automobile pursuant to AMC § 9.28.026C.1 Skagen (who was the registered owner of the vehicle) failed to enter an appearance in the forfeiture action. As a consequence, the Municipality obtained a default judgement of forfeiture against the vehicle.

After the vehicle was forfeited to the Municipality, Skagen filed a motion seeking dismissal of the two criminal charges pending [286]*286against him. Skagen asserted that the forfeiture of his vehicle, based on his acts of driving while intoxicated and refusing to take the breath test, constituted a “punishment” for double jeopardy purposes. Because he had already suffered this punishment, Ska-gen argued, the double jeopardy clause of the Federal Constitution barred the Municipality from prosecuting him for these two crimes.

District Court Judge William H. Fuld agreed with Skagen in part. He ruled that the forfeiture of Skagen’s vehicle constituted a punishment for double jeopardy purposes, but he found that the vehicle forfeiture had been based solely on Skagen’s refusal to take the breath test, not his act of driving while intoxicated. For this reason, Judge Fuld dismissed the breath-test refusal charge but he maintained the driving while intoxicated charge.

The Municipality filed a petition for review, asking us to reinstate the breath-test refusal charge. Skagen filed a cross-petition, asking us to dismiss the driving while intoxicated charge. We granted both petitions, and we now hold that the Municipality is entitled to pursue both of the criminal charges.

There is support for Skagen’s assertion that the. forfeiture of a vehicle based on criminal acts of the driver constitutes a “punishment” for federal double jeopardy purposes. See One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 699, 85 S.Ct. 1246, 1250, 14 L.Ed.2d 170 (1965), cited in Austin v. United States, 509 U.S. 602, 619, 113 S.Ct. 2801, 2811, 125 L.Ed.2d 488 (1993), and United States v. Perez, 70 F.3d 345 (5th Cir.1995). There is also legal authority against Skagen. See City of New Hope v. One 1986 Mazda 626, 546 N.W.2d 300 (Minn.App.1996) (holding that the forfeiture of a vehicle operated by an intoxicated driver does not constitute “punishment” for double jeopardy purposes, and that such a forfeiture can be imposed in addition to the criminal penalties for DWI); State v. Johnson, 667 So.2d 510 (La.1996) (holding that the forfeiture of a vehicle used in drug offenses does not, per se, constitute “punishment” for double jeopardy purposes—that, with the possible exception of extraordinarily valuable vehicles, such a forfeiture can be imposed irrespective of whether the owner has already been convicted and sentenced for the drug offenses); State ex rel. McGehee v. One 1989 Ford F-150 Pickup, 888 P.2d 1036 (Okla.App.1994) (indicating that the forfeiture of a vehicle used in drug offenses does not constitute “punishment” for double jeopardy purposes). See also United States v. Salinas, 65 F.3d 551, 553-54 (6th Cir.1995), and United States v. Tilley, 18 F.3d 295, 300 (5th Cir.1994), cert. denied — U.S. -, 115 S.Ct. 574, 130 L.Ed.2d 490 (forfeiture of property purchased with the proceeds of illegal narcotics transactions is not “punishment” for double jeopardy purposes).

Despite the allure of this double jeopardy issue, we conclude that we need not resolve it to decide Skagen’s case. The federal circuits uniformly hold that, even when the government files suit to obtain forfeiture of property based on a person’s criminal acts, the double jeopardy clause is not implicated when the forfeiture is entered by default after the defendant fails to file an appearance in the forfeiture action and assert an interest in the property.

For instance, in United States v. Washington, 69 F.3d 401 (9th Cir.1995), government agents arrested Washington for narcotics offenses and seized over $1000 from him. When the government commenced forfeiture proceedings against this money, ‘Washington decided [on the advice of counsel] not to file a claim stating his interest in the seized money”. 69 F.3d at 402.

After the money was forfeited to the government, Washington sought dismissal of the drug charges against him. He relied on United States v. $405,089.23 in U.S. Currency, 33 F.3d 1210 (9th Cir.1994), a case in which the Ninth Circuit held that the forfeiture of money connected with narcotics offenses constituted “punishment” for double jeopardy purposes, thus prohibiting the government from later trying the defendant on criminal charges arising from the same conduct. However, the Ninth Circuit found that Washington’s case was not governed by U.S. Currency:

[287]*287[While] [c]riminal [prosecution] and civil forfeiture proceedings based on the same facts may subject a defendant to double jeopardy[,] [j]eopardy does not attach ... whenever the Government seizes property.
In the recent decision in [United States v.] Cretacci [62 F.3d 307, 310-11 (9th Cir.1995) ], we concluded that an owner who receives notice of an intended forfeiture and fails to claim an ownership interest in the property has effectively abandoned that interest. Because abandonment constitutes a relinquishment of all rights in the property, we held in Cretacci that the taking of such property imposes no “punishment” on the former owner and thus does not place him or her in jeopardy.
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Washington failed to contest the propriety of the seizure [of the money] by filing a claim of ownership [or] by filing a petition for remission or mitigation. Under Cre-tacci the Government’s forfeiture of the monies found on Washington’s person therefore imposed no punishment on him and he thus was never placed in jeopardy. Accordingly, we reject Washington’s claim that his subsequent criminal prosecution constitutes double jeopardy.

United States v. Washington, 69 F.3d at 403-04 (citations omitted).

Accord: United States v. James, 78 F.3d 851, 855 (3rd Cir.1996); United States v. Wilson,

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920 P.2d 284, 1996 Alas. App. LEXIS 26, 1996 WL 339886, Counsel Stack Legal Research, https://law.counselstack.com/opinion/municipality-of-anchorage-v-skagen-alaskactapp-1996.