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State; Dept of Public Safety, Dept of Motor Vehicles v. Niedermeyer (12/15/00) sp-5346

     Notice:  This opinion is subject to correction before publication in
the Pacific Reporter.  Readers are requested to bring errors to the attention of the
Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone (907)
264-0608, fax (907) 264-0878.


             THE SUPREME COURT OF THE STATE OF ALASKA


STATE OF ALASKA, DEPARTMENT   )
OF PUBLIC SAFETY, DIVISION    )    Supreme Court No. S-8239
OF MOTOR VEHICLES,            )    
                              )    Superior Court No.
               Appellant,     )    3AN-95-9156 CI 
                              )         
     v.                       )    
                              )    O P I N I O N
PATRICK NIEDERMEYER,          )    
                              )    [No. 5346 - December 15, 2000]
               Appellee.      )    
______________________________)    



          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                     Eric T. Sanders, Judge.


          Appearances:  Eric A. Johnson and Timothy W.
          Terrell, Assistant Attorneys General, Office
of Special Prosecutions and Appeals, Anchorage, and Bruce M.
Botelho, Attorney General, Juneau, for Appellant.  William H.
Ingaldson, Ingaldson Maassen, P.C., Anchorage, for Appellee.


          Before:  Matthews, Chief Justice, Eastaugh,
          Fabe, and Bryner, Justices.  [Carpeneti,
Justice, not participating.]


          BRYNER, Justice.


I.   INTRODUCTION
          The Department of Motor Vehicles (DMV) revoked Patrick
Niedermeyer's driver's license after Niedermeyer was arrested for
underage consumption of alcohol.  Because DMV's administrative
revocation was punitive, and because DMV acted without the
safeguards that attend a criminal prosecution, Niedermeyer's right
to due process was violated and his suspension must be overturned. 
II.  FACTS AND PROCEEDINGS
          On July 4, 1995, Patrick Niedermeyer was arrested at a
cabin for underage consumption of alcohol.  There was never any
allegation that Niedermeyer had previously driven after consuming
alcohol or intended to drive on the evening of his arrest. 
Following the arrest, Niedermeyer's arresting officer read him the
"Under 21 Notice of Revocation,"in accordance with former
AS 28.15.183.  That notice said:
          YOUR DRIVER'S LICENSE OR PRIVILEGE TO DRIVE IN
THIS STATE IS REVOKED.  THIS IS YOUR OFFICIAL NOTICE OF REVOCATION. 
THIS REVOCATION WILL TAKE EFFECT 7 DAYS AFTER THE DATE SHOWN ABOVE,
UNLESS YOU REQUEST AN ADMINISTRATIVE REVIEW OF THE REVOCATION. 
INFORMATION ON THE REVERSE SIDE OF THIS FORM TELLS YOU HOW TO APPLY
FOR THIS REVIEW.[ [Fn. 1]] 
          Niedermeyer requested administrative review of his
license revocation.  After conducting telephonic hearings, DMV
affirmed the revocation. 
          Niedermeyer appealed to the superior court.  Judge
Eric T. Sanders reversed the revocation, finding former
AS 28.15.183 unconstitutional for the reasons stated in Quinn v.
State, Department of Public Safety, [Fn. 2] a similar case decided
by another superior court judge.  The state appealed the superior
courts' rulings in both the Quinn and Niedermeyer cases.  We
initially stayed the appeal in this case pending our decision in
Quinn, but reactivated this appeal after summarily affirming Quinn 
by an evenly divided vote. [Fn. 3]  On appeal, the state claims
that the superior court erred in declaring Alaska's former AS
28.15.183 unconstitutional. 
III. DISCUSSION
     A.   Standard of Review
          The constitutionality of former AS 28.15.183 is a legal
question to which this court applies its independent judgment. [Fn.
4]
     B.   Mootness
          The state did not prosecute Niedermeyer for unlawful
possession or consumption of alcohol.  Because recent amendments to
AS 28.15.183 now require DMV to reissue a minor's revoked license
if the state fails to prosecute the underlying criminal offense or
if a prosecution ends in dismissal or acquittal, [Fn. 5] the only
live controversy in this case is the award of prevailing-party
attorney's fees.  We must nevertheless address the merits of the
parties' constitutional arguments, for we have previously held that
we "will review an otherwise moot issue to determine who the
prevailing party is if such a determination is necessary for
purposes of awarding attorney's fees."[Fn. 6]  
     C.   Substantive Due Process
          The superior court, incorporating Quinn's reasoning,
found that former AS 28.15.183 violates substantive due process
because its age-based restriction is not rationally related to a
valid legislative purpose.  Niedermeyer urges us to uphold this
ruling.  He insists that there is no close or obvious connection
between underage possession or consumption of alcohol and dangerous
driving.  But substantive due process demands no direct connection
of this kind; the substantive due process requirement allows a law
to pass muster as long as it bears any rational relation to a
legitimate legislative goal:
               Substantive due process is denied when a
legislative enactment has no reasonable relationship to a
legitimate governmental purpose.  It is not a court's role to
decide whether a particular statute or ordinance is a wise one; the
choice between competing notions of public policy is to be made by
elected representatives of the people.  The constitutional
guarantee of substantive due process assures only that a
legislative body's decision is not arbitrary but instead based upon
some rational policy.[ [Fn. 7]]

          Under this minimal test, even a modest statistical
increase in accident rates might give the legislature a rational
basis for action aimed at discouraging potential underage drivers
from possessing or drinking alcohol.  And previously recognized
traffic studies seem to suggest that this kind of increased risk
does exist. [Fn. 8]  But even without statistical evidence to
confirm an increased risk, the legislature might have had a

rational basis to enact former AS 28.15.183 as a purely
precautionary measure.  After all, the same concerns that motivate
traditional legal restrictions on the minimum ages for drinking and
for driving -- concerns over immaturity, inexperience, and unsound
judgment -- might also support a logical belief that minors lacking
sufficient judgment to obey laws governing possession and
consumption of alcohol will generally be more likely than others to
lack sufficient judgment to drive carefully or to abstain from
drinking before driving.  
          As the state argues in its briefing, a chain of rational
inferences can be forged to link underage drinking to dangerous
driving: a minor who possesses or consumes alcohol might do so
again in the future; minors cannot be trusted to handle alcohol in
a mature and socially acceptable manner; and minors who consume
alcohol might drive under the influence of alcohol.  Though this
inferential nexus may be tenuous, it is nonetheless rational. 
Accordingly, we cannot dismiss as arbitrary or irrational the
legislature's decision to restrict the driving privileges of minors
cited for illegal possession and consumption. [Fn. 9]
          The state's failure to present affirmative evidence
proving the existence of a nexus between underage drinking and
dangerous driving does not alter this conclusion; rather, the heavy
burden of proving that the legislature acted irrationally falls on
Niedermeyer:  
               A court's inquiry into arbitrariness
begins with the presumption that the action of the legislature is
proper.  The party claiming a denial of substantive due process has
the burden of demonstrating that no rational basis for the
challenged legislation exists.  This burden is a heavy one, for if
any conceivable legitimate public policy for the enactment is
apparent on its face or is offered by those defending the
enactment, the opponents of the measure must disprove the factual
basis for such a justification.[ [Fn. 10]]

Thus, absent convincing evidence refuting any potential correlation
between underage drinking and driving safety -- and Niedermeyer
presents no such evidence -- we find no basis for declaring that
former AS 28.15.183 denies substantive due process. [Fn. 11] 
     D.   Procedural Due Process
          The superior court also found former AS 28.15.183
unconstitutional because it violates procedural due process by not
adhering to constitutionally prescribed criminal procedures.  In
reaching this conclusion, the court found that the statute is
punitive in nature, rather than remedial, and that Niedermeyer
therefore has a right to the procedural safeguards that normally
protect the rights of a person accused in a criminal proceeding.  
          On appeal, Niedermeyer argues that the superior court
correctly decided this issue.  DMV responds that criminal
safeguards are unnecessary because former AS 28.15.183's purpose
was to remove unfit drivers from the roads, not to punish underage
drinking.  But at best the statute sends a mixed message, for it
accomplishes its purported regulatory goal by punishing criminal
conduct that has no obvious connection to driving. 
          To be sure, revoking a driver's license does not always
equate to imposing a criminal sanction.  In Baker v. City of
Fairbanks, [Fn. 12] we defined criminal prosecutions to include the
trial of offenses that "may result in the loss of a valuable
license, such as a driver's license."[Fn. 13]  We then qualified
this definition by carving out an exception for administrative
revocations based on conduct that demonstrates unfitness to drive:
          [The category of "criminal"prosecutions] 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.[ [Fn. 14]]

          Baker thus establishes that when an agency revokes a
driver's license, its action can be either a criminal sanction or
an administrative measure, depending on whether the revocation is
based on the commission of an offense or on conduct that
demonstrates unfitness to drive.  But Baker leaves open a difficult
question: should a revocation be treated as a criminal sanction or
an administrative measure when the DMV bases its action on conduct
that amounts to the commission of a criminal offense but that also
reflects on the offender's fitness to drive?  This is the critical
question at issue here.  
          The Alaska Court of Appeals took a long stride toward
resolving this question in State v. Zerkel. [Fn. 15]  There, that
court considered whether an administrative license suspension is a
criminal penalty for double jeopardy purposes when the suspension
is based on an arrest for driving while intoxicated (DWI) or on a
charge of refusal to take a breath test following an arrest for
DWI. [Fn. 16]  After examining this court's decision in Baker and
the United States Supreme Court's recent double jeopardy case law,
[Fn. 17] the Zerkel court turned to the purpose and impact of
license suspensions based on DWI offenses, ultimately concluding
that suspensions for DWI or breath-test refusals did not amount to
criminal sanctions. [Fn. 18]  In holding that such suspensions are
regulatory actions despite being based on criminal conduct, the
court identified the determining factor to be the direct
relationship between the criminal conduct -- drunken driving -- and
the DMV's primary regulatory goal -- removing unfit drivers from
the road: 
          [W]hen 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.[ [Fn. 19]]

          Zerkel's insistence on this narrowly tailored means-to-
end fit -- on the existence of a direct relation between the DMV's
regulatory goals and the conduct that triggers the agency's
licensing action -- successfully harmonizes Alaska's administrative
treatment of DWI license suspensions with Baker. 
          Zerkel's direct-relationship test also fits well with the
United States Supreme Court's bright-line view of punitive action. 
In Austin v. United States, [Fn. 20] the Supreme Court explained
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, as
we have come to understand the term.'"[Fn. 21]  The court in
Zerkel acknowledged that despite the direct relationship between
drunk driving and the DMV's remedial goal of removing unfit drivers
from the road, administrative DWI revocations can have a punitive
effect that deters DWI offenders from committing further offenses.
[Fn. 22]  But the court deemed this effect to be incidental to the
direct, remedial effect of the DMV action. [Fn. 23]  Zerkel thus
held that administrative license revocation for DWI offenses is in
essence solely a remedial measure. [Fn. 24]   
          We agree with Zerkel's interpretation.  Because driving
while intoxicated necessarily demonstrates poor driving judgment,
there is no inferential leap -- no intermediate logical gap that
needs bridging -- between the driver's conduct and the
administrative goal served by license revocation.  The act of
driving while intoxicated is by definition an act of impaired
driving, and the attendant criminal sanctions for the crime
accurately reflect the resulting risk to public safety.  Thus, an
indelible inference of unfitness to drive arises directly from the
conduct comprising the offense.  Simply put, driving while
intoxicated is unfit driving.   Consequently, commission of the
offense necessarily justifies DMV licensing action. [Fn. 25]  
          By contrast, the direct connection between the alleged
offense and DMV's regulatory goal of removing unfit drivers from
the road vanishes when the agency revokes a license for underage
possession or drinking.  Under former AS 28.15.183, a minor's
possession or consumption of alcohol need have no connection to
driving; hence, the conduct triggering revocation does not
necessarily, or even probably, reflect on the arrested minor's
fitness to drive.  
          At most, the minor's unlawful conduct reflects a
possibility of increased danger: it suggests that the minor belongs
to a class of young drivers who generally pose a higher statistical
risk than other young drivers.  Thus, while the behavioral gap
between underage drinking and unfit driving can be bridged by a
chain of rational inferences that is strong enough to withstand the
minimal test of substantive due process, [Fn. 26] this roundabout
connection is not the direct and necessary link that must exist
before an administrative revocation will be considered non-
punitive.  
          In the case at hand, for example, former AS 28.15.183 did
nothing to tailor its sanction to the specific facts of
Niedermeyer's case.  There is no case-specific evidence suggesting
that Niedermeyer, who was arrested in a cabin, posed any risk of
bad driving -- or that he intended to drive at all.  The challenged
statute did not require the state produce such evidence.  Beyond
that, it explicitly forbade Niedermeyer from offering, in his own
defense, any case-specific evidence of fitness to drive or sound
judgment. [Fn. 27]  
          Traffic studies do suggest that Niedermeyer's conduct
places him in a class of minors who tend to drive more carelessly
than other minors. [Fn. 28]  But the statistics contained in those
studies only describe the general behavior of a broad class of
young drivers.  Naked numbers cannot predict the conduct of any
individual driver; they do not address the specific circumstances
of Niedermeyer's case; and they say nothing concerning his personal
driving behavior.  Because statistics that generally correlate
underage drinking and bad driving fail to establish that
Niedermeyer himself is unfit to drive, they cannot, standing alone,
justify remedial action based on his demonstrated unfitness to
drive.   
          Thus, by relying on such tenuous and generalized
inferences of unfitness, former AS 28.15.183 assumed the attributes
of a punitive measure; for it "cannot fairly be said solely to
serve a remedial purpose."[Fn. 29]  Underage drinking has
traditionally been regarded as criminal misconduct; [Fn. 30] many
members of the community attach significant social and moral
opprobrium to the conduct; and the statutorily prescribed
consequence of immediate license revocation unquestionably amounts
to a severe sanction.  Because the statute imposes a harsh,
mandatory penalty for misconduct that has no necessary or close
relation to bad driving, its sanction will naturally be seen not as
a remedial measure addressing traffic safety, but as punishment
aiming directly at the underlying offense -- underage possession or
consumption of alcohol or drugs.  Punishment of this kind "is the
implicit sine qua non of a 'criminal prosecution.'"[Fn. 31] 
          Given these circumstances, our case law interpreting the
Alaska Constitution compels the conclusion that former AS 28.15.183
imposed a criminal sanction. [Fn. 32]  To revoke a license under
circumstances amounting to criminal punishment, the state must
offer appropriate procedural safeguards; as we explained in Baker,
the state may not impose criminal punishment without criminal
process. [Fn. 33]  
          Courts in other states have allowed license suspension to
follow automatically from drug or underage drinking offenses. [Fn.
34]  But the laws in those states uniformly require that a
conviction precede the punishment.  In upholding their statutes as
constitutional, the courts in those states have explained that the
revocation of a driver's license is rationally related to a
legitimate state interest precisely because it punishes and deters
illegal alcohol or drug use. [Fn. 35]  Thus, those decisions tend
to confirm our conclusion that former AS 28.15.183 must be viewed
as imposing a criminal penalty. [Fn. 36]
          Here, because the state failed to offer Niedermeyer the
safeguards of criminal process that normally apply to criminal
punishment, we affirm the superior court's conclusion that
Niedermeyer's license was revoked without due process of law. 
     E.   Vagueness
          Niedermeyer further argues that, by basing license
revocation on the act of "possession"of alcohol, former
AS 28.15.183 introduces an element of unconstitutional vagueness. 
A statute may be void for vagueness if its language fails to "give
adequate notice of the conduct that is prohibited"or if its
"imprecise language encourages arbitrary enforcement by allowing
prosecuting authorities undue discretion to determine the scope of
its prohibitions."[Fn. 37]  Applying this standard, we find no
constitutional deficiency here.  "Possession"is a common term with
a generally accepted meaning: [Fn. 38] having or holding property
in one's power; the exercise of dominion over property.  This
meaning provides adequate notice of the prohibited conduct. [Fn.
39]  Niedermeyer asserts that the statute's use of the undefined
term "possession"is sufficiently vague to invite inconsistent
enforcement.  But we will not invalidate a statute on this basis
"'absent evidence of a history of arbitrary or capricious
enforcement.'"[Fn. 40]  Since Niedermeyer failed to present
evidence suggesting a history of arbitrary enforcement, we must
overturn the superior court's finding of vagueness.  
IV.  CONCLUSION
          Although former AS 28.15.183 has an indirect remedial
purpose sufficient to insulate it from a substantive due process
challenge, its direct effect is to punish underage possession and
consumption of alcohol and drugs -- conduct traditionally
punishable only by criminal process.  Because Niedermeyer's license
was revoked without attendant criminal process, we AFFIRM the
superior court's judgment.


                            FOOTNOTES


Footnote 1:

     Former AS 28.15.183 stated that

          [i]f a peace officer has probable cause to

believe that a person who is at least 14 years of age but not yet
21 years of age has possessed or used [alcohol or illegal drugs,
driven drunk or refused a breath test] and the peace officer has
cited the person or arrested the person for a violation [of
underage consumption or drug laws], the peace officer shall read a
notice and deliver a copy to the person.  The notice must advise
that
          (1)  the department intends to revoke the

person's driver's license or permit, privilege to drive, or
privilege to obtain a license or permit;
          (2)  the person has the right to

administrative review of the revocation;
          (3)  if the person has a driver's license or

permit, the notice itself is a temporary driver's license or permit
that expires seven days after it is delivered to the person;
          (4)  revocation of the person's driver's

license or permit, privilege to drive, or privilege to obtain a
license or permit, takes effect seven days after delivery of the
notice to the person unless the person, within seven days, requests
an administrative review.


Footnote 2:

     No. 3AN-95-8805 CI (Alaska Super., February 13, 1997).


Footnote 3:

     State of Alaska v. Quinn, No. S-8003, Alaska Supreme Court
Order dated March 3, 1999.


Footnote 4:

     See Rollins v. State, Dep't of Revenue, Alcoholic Beverage
Control Bd., 991 P.2d 202, 206 (Alaska 1999); Turney v. State, 936
P.2d 533, 538 (Alaska 1997).


Footnote 5:

     See AS 28.15.183(i)(2). 


Footnote 6:

     Bruner v. Petersen, 944 P.2d 43, 47 n.4 (Alaska 1997).


Footnote 7:

     Concerned Citizens of S. Kenai Peninsula v. Kenai Peninsula
Borough, 527 P.2d 447, 452 (Alaska 1974) (citation omitted).


Footnote 8:

     See, e.g., Rexford v. State, 941 P.2d 906, 907 (Alaska App.
1997).  But cf. State v. Esmailka, 961 P.2d 432, 434 (Alaska App.
1998) (involving a defendant who challenged the validity of the
studies underlying Rexford).


Footnote 9:

     Accord In re Appeal in Maricopa County Juvenile Action No. JV-
114428, 770 P.2d 394, 395 (Ariz. App. 1989).  


Footnote 10:

     Concerned Citizens of S. Kenai Peninsula, 527 P.2d at 452
(citations omitted).


Footnote 11:

     Accord Maricopa County, 770 P.2d at 396-97.  The superior
court also ruled that because the conduct sanctioned by former
AS 28.15.183 bears no relationship to the sanction imposed, a 90-
day license revocation amounts to cruel and unusual punishment, in
violation of the Eighth Amendment.  Although Niedermeyer does not
pursue his claim of cruel and unusual punishment on appeal, our
conclusion that the statute is sufficiently rational to comply with
the requirements of substantive due process compels us to reverse
on this point, as well.  For constitutional purposes, punishments
are cruel and unusual only if they are "inhuman or barbarous, or so
disproportionate to the offense committed as to be completely
arbitrary and shocking to the sense of justice."  Thomas v. State,
566 P.2d 630, 635 (Alaska 1977) (quoting Green v. State, 390 P.2d
433, 435 (Alaska 1964)).  Under this stringent standard, a three-
month license revocation for the crime of underage drinking is not
cruel and unusual.


Footnote 12:

     471 P.2d 386 (Alaska 1970).


Footnote 13:

     Id. at 402.


Footnote 14:

     Id. at 402, n.28.


Footnote 15:

     900 P.2d 744 (Alaska App. 1995).


Footnote 16:

     See id. at 745-46.


Footnote 17:

     See id. at 749-51 (discussing Montana Dep't of Revenue v.
Kurth Ranch, 511 U.S. 767 (1994), Austin v. United States, 509 U.S.
602 (1993), and United States v. Halper, 490 U.S. 435 (1989)).


Footnote 18:

     See id. at 755-58.


Footnote 19:

     Id. at 757 (emphasis added).


Footnote 20:

     509 U.S. 602 (1993).


Footnote 21:

     Id. at 621 (quoting Halper, 490 U.S. at 448 (emphasis added in
Austin)).


Footnote 22:

     Zerkel, 900 P.2d at 755-57.


Footnote 23:

     See id. at 755-58.


Footnote 24:

     Although Austin dealt with the United States Constitution's
excessive fines clause rather than with double jeopardy, Zerkel
read that case as supporting its conclusion that an administrative
license suspension in a DWI case does not qualify as a criminal
sanction for double jeopardy purposes.  See Zerkel, 900 P.2d at
749-51.  We note that, more recently, the United States Supreme
Court has made it clear that the excessive fines clause analysis it
set forth in Austin does not apply in the double jeopardy context. 
See United States v. Ursery, 518 U.S. 267, 287 (1996).  Since
Niedermeyer's case presents no double jeopardy issue, the point is
immaterial here.


Footnote 25:

     An administrative license suspension serves a somewhat
different regulatory goal in breath-test refusal cases, but a goal
that connects just as seamlessly to the conduct comprising the
offense.  In such cases, because a motorist who obtains a driver's
license impliedly consents to take a breath test, "[r]efusal to
submit to the test [is] deemed tantamount to a withdrawal of the
consent upon which the privilege to drive [has] been conditioned,
justifying state revocation of the driver's license."  Lundquist v.
Department of Pub. Safety, 674 P.2d 780, 783 (Alaska 1983).


Footnote 26:

     See discussion of Niedermeyer's substantive due process
argument, supra Part III.C.


Footnote 27:

     AS 28.15.184(g) provides: 

               The hearing for review of a revocation by
the department under AS 28.15.183 shall be limited to the issues of
whether the person was at least 14 years of age but not yet 21
years of age and whether the person possessed or used a controlled
substance . . . or possessed or consumed alcohol . . . .

(Emphasis added.)


Footnote 28:

     See, e.g., Rexford v. State, 941 P.2d 906, 907 (Alaska App.
1997).


Footnote 29:

     Austin v. United States, 509 U.S. 602, 620 (1993) (quoting
United States v. Halper, 490 U.S. 435, 448 (1989) (emphasis added
in Austin)).


Footnote 30:

     See, e.g., State v. District Court, 927 P.2d 1295, 1296-97
(Alaska App. 1996).


Footnote 31:

     State, Dep't of Revenue v. Beans, 965 P.2d 725, 730 n.8
(Alaska 1998).


Footnote 32:

     See Baker v. City of Fairbanks, 471 P.2d 386, 393 (Alaska
1970).  Our conclusion does not conflict with the court of
appeals's decision in Rexford v. State, 941 P.2d 906 (Alaska App.
1997).  Although the court in Rexford held that an administrative
revocation under AS 28.15.183 did not amount to criminal punishment
for double jeopardy purposes, Niedermeyer's case does not present
a  double jeopardy issue and therefore does not require us to
consider the point decided in Rexford.  See id. at 907; see also 
supra note 24.  Moreover, the court in Rexford limited its decision
to the unique procedural circumstances of the case before it,
noting that Rexford had not submitted any appellate briefing and
had consequently failed to challenge the trial court's findings
concerning the statute's remedial purpose.  Rexford, 941 P.2d at
907.  


Footnote 33:

     471 P.2d at 401.


Footnote 34:

     See, e.g., In re Appeal in Maricopa County Juvenile Action No.
JV-114428, 770 P.2d 394, 395 (Ariz. App. 1989); People v.
Valenzuela, 5 Cal. Rptr. 2d 492, 493 (Cal. App. Dep't Super. 1991);
People v. Zinn, 843 P.2d 1351, 1353-55 (Colo. 1993); Plowman v.
Commonwealth, Dep't of Transp., Bureau of Driver Licensing, 635
A.2d 124, 127-28 (Pa. 1993); Commonwealth v. Strunk, 582 A.2d 1326,
1326-27 (Pa. Super. 1990); State v. Shawn P., 859 P.2d 1220, 1221
(Wash. 1993) (en banc).  But see Johnson v. State Hearing
Examiner's Office, 838 P.2d 158, 177-78 (Wyo. 1992) (determining
such an arrangement violated prohibitions on cruel and unusual
punishment).


Footnote 35:

     See, e.g., Maricopa County, 770 P.2d at 397; Valenzuela, 5
Cal. Rptr. 2d at 492-93; Zinn, 843 P.2d at 1354; Plowman, 635 A.2d
at 127; Strunk, 582 A.2d at 1329-30; Shawn P., 859 P.2d at 1222.  


Footnote 36:

     We note that AS 28.15.183, as recently amended, appears to
move in the direction taken in these other states, since Alaska's
statute now requires the DMV to reinstate a revoked driver's
license if the underlying offense is not prosecuted, is dismissed,
or results in a not guilty verdict.  See AS 28.15.183(i)(2). 
Because the amended version of the statute is not at issue in this
case, we express no opinion concerning its validity. 


Footnote 37:

     Summers v. Anchorage, 589 P.2d 863, 867 (Alaska 1979)
(citations omitted).


Footnote 38:

     "[U]nless otherwise defined, words will be interpreted as
taking their ordinary, contemporary, common meaning."Bachlet v.
State, 941 P.2d 200, 205 (Alaska App. 1997) (quoting Perrin v.
United States, 444 U.S. 37, 42 (1979)).


Footnote 39:

     Cf. State v. Rice, 626 P.2d 104, 109 (Alaska 1981) (statute
prohibiting illegal possession or transportation of game not
unconstitutionally vague).


Footnote 40:

     Summers, 589 P.2d at 868 (quoting Levshakoff v. State, 565
P.2d 504, 507 (Alaska 1977)).