# State v. Pickering

> Supreme Judicial Court of Maine · July 1, 1983 · 462 A.2d 1151

URL: https://www.frixlaw.com/law-library/cases/9761176

## Case

- **Full name:** STATE of Maine v. Jeffrey PICKERING
- **Court:** Supreme Judicial Court of Maine
- **Decided:** July 1, 1983
- **Citations:** 462 A.2d 1151; 1983 Me. LEXIS 714
- **Precedential status:** Published
- **Opinion:** Dissent by Nichols
- **Judges:** Godfrey, Nichols, Roberts, Carter, Violette and Wathen
- **Cited by:** 22 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9761176

## How later opinions describe it (automated extraction)

- rejecting due process and equal protection challenges to a drunk driving law that created both civil and criminal liability

## Opinion text

NICHOLS, Justice,
dissenting.
When Maine’s operating-under-the-influence statute was revised two years ago a radical innovation was the option given to every prosecutor, in his or her unfettered discretion, to treat certain violations of this law as civil offenses rather than as criminal *1164 offenses. 29 M.R.S.A. § 1312 (Supp.1982-1983). Confronted on this Defendant’s appeal with a challenge to the law’s constitutionality, today’s majority mount their defense to the duplicative aspects of this statute on the decision of the United States Supreme Court in United States v. Batchelder, 442 U.S. 114 , 99 S.Ct. 2198 , 60 L.Ed.2d 755 (1979). That case upheld overlapping, but not duplicative, statutes on possession of a firearm by a felon.
Batchelder is inapposite. The majority’s reliance is misplaced.
It is unfortunate, I suggest, that they did not instead follow the line of cases led by State v. Pirkey, 203 Or. 697 , 281 P.2d 698 (1955). This case struck down duplicative statutes on drawing bank checks with insufficient funds in the bank.
One commentator has observed:
In spite of Batchelder , identical statutes are unconstitutional. No case has ever upheld statutes which are totally identical except for punishment. 1
The decision by today’s majority appears to represent the first instance in which a court has held otherwise. We are starting down a lonely road.
Section 1312-B and section 1312-C of our operating-under-the influence statute proscribe identical conduct in identical terms. The sections differ only with respect to punishment. The criminal offense is a Class D crime which carries a minimum jail sentence of 48 hours, a minimum fine of $350 and a ninety-day license suspension. 29 M.R.S.A. § 1312-B(2) (Supp.1982-1983). By contrast, the traffic infraction carries no jail term, imposing only a $250-$500 fine and a forty-five day license suspension. 29 M.R.S.A. § 1312-C(3) & (4) (Supp.1982-1983). In all but a narrow range of cases where criminal prosecution is mandatory, the decision as to whether a defendant gains a criminal record, goes to jail and receives a stiffer fine and license suspension, or whether, treated merely as a civil violator, he receives a lesser fine and a shorter suspension, is one which rests ultimately with the prosecutor.
This statutory scheme violates the constitutional guarantees of both the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment. 2
Batchelder did not involve identical statutes. The two federal statutes there at issue overlapped only to the degree of prohibiting some of the same conduct. In the case before us, on the other hand, there is a total redundancy in terms of both the substance of the offense and the language employed in the two sections. It is impossible for a motorist to violate section 1312-B without also violating section 1312-C, and it is impossible for a motorist to violate section 1312-C without also violating section 1312-B.
A second point of distinction is that the penalties under the two federal statutes challenged in Batchelder were roughly the same. The first statute provided a greater maximum prison sentence than the second, while the second authorized a greater maximum fine than the first. 3 Moreover, there was a very real possibility that a defendant would end up with the same penalty regardless of the statute under which he was charged. In contrast, in our operating-under-the-influence statute, there is a great disparity between the penalty for the traffic infraction and the penalty for the criminal offense. Stiffer fines, longer license *1165 suspensions and mandatory prison terms ride in the balance. There is no possibility of equivalent punishment.
Third, Batchelder involved two criminal statutes. A conviction under either would result in a criminal record. Here, Section 1312-C is nothing more than a traffic infraction, while a conviction under section 1312-B brands the defendant as a criminal. In addition to the greatly increased penalties obtaining under section 1312-B, a defendant convicted thereunder cannot escape the opprobium of criminality.
Thus, Batchelder is factually and legally distinguishable from the case before us. Those courts which have heretofore dealt with this question have uniformly adhered to the principle that, consistent with equal protection guarantees, a state may not employ identical statutes with different penalties to disparately punish those who commit identical acts. See People v. Mumaugh, 644 P.2d 299, 301 (Colo.1982); People v. Marcy, 628 P.2d 69, 74-75 (Colo.1981); State v. Modica, 58 Hawaii 249, 251 , 567 P.2d 420, 422 (1977); State v. Wilson, 60 Ohio App.2d 377, 380-81 , 397 N.E.2d 1206, 1209 (1978), aff’d 58 Ohio St. 52 , 388 N.E.2d 745 (1979). Spillers v. State, 84 Nev. 23 , 436 P.2d 18, 23 (Nev.1968); State v. Pirkey, 203 Or. at 704 , 281 P.2d at 702 ; State v. Jessup, 31 Wash.App. 304, 307-08 , 641 P.2d 1185, 1188 (1982).
The Colorado Supreme Court has articulated the guarantee of equal protection in this way:
Equal protection of the law is a guarantee of like treatment of all those who are similarly situated. Classification of persons under the criminal law must be under legislation that is reasonable and not arbitrary. There must be substantial differences having a reasonable relationship to the persons involved and the public purpose to be achieved.
People v. Marcy, 628 P.2d at 74 (quoting People v. Calvaresi, 188 Colo. 277, 281-82 , 534 P.2d 316, 318 (1975)).
The Maine statute by its terms permits unequal punishment for those who commit the same act. The conduct of two citizens, both convicted of operating-under-the-influence, may be identical in all respects. Although there may be no rational justification for treating these citizens differently, the statute authorizes for one, jail, and for the other, merely a fine. Such patently unequal treatment of identically situated persons violates the guarantee of equal protection of the law afforded all citizens by the United States Constitution.
There is still another constitutional infirmity in the manner in which the decision of whether to prosecute a given defendant civilly or criminally is delegated to the prosecutor. In Justice Cardozo’s historic phrase, this approaches the level of “delegation running riot.” Schechter Poultry Corp. v. United States, 295 U.S. 495, 553 , 55 S.Ct. 837, 853 , 79 L.Ed. 1570 (1935) (concurring opinion). Such delegation is also a violation of the separation of powers doctrine. State v. Pirkey, 203 Or. at 706-07 , 281 P.2d at 703 .
Although the Legislature has provided prosecutors with a list of “circumstances” which may be considered in deciding whether to prosecute a defendant criminally, it is made clear that these are no more than advisory in nature. 29 M.R.S.A. § 1312-C(7) (Supp.1982-1983). Such “circumstances” have little meaning when the consideration of them is entirely within the prerogative of the prosecutor. Furthermore, because criminal prosecution is permitted “in any other circumstances,” the enumerated circumstances have little real significance as prosecutorial guidelines. Moreover, the statute concludes with the provision that: “The discretion of the attorney for the State under this subsection shall not be subject to review.” Even if the decision to proceed under one section or the other should be made for clearly impermissible reasons, the prosecutor’s decision is purportedly insulated from judicial review. The prosecutor’s caprice is substituted for the adjudicatory process. Berra v. United States, 351 U.S. 131, 140 , 76 S.Ct. 685, 691 , *1166 100 L.Ed. 1013 (1956) (Black, J., dissenting). 4
To provide a prosecutor with such sweeping discretionary powers and to then preclude any judicial review of the exercise of that discretion sets the stage for possible abuse. For example, as the Supreme Court has observed, it “furnishes a convenient tool for ‘harsh and discriminatory enforcement by local prosecuting officials against particular groups deemed to merit their displeasure.’ ” Kolender v. Lawson, U.S. ——, -, 103 S.Ct. 1855 , 75 L.Ed.2d 903 (1983) (quoting Papachristou v. City of Jacksonville, 405 U.S. 156, 170 , 92 S.Ct. 839, 847-48 , 31 L.Ed.2d 110 (1972) and Thornhill v. Alabama, 310 U.S. 88, 97-98 , 60 S.Ct. 736, 741-42 , 84 L.Ed. 1093 (1940)). Standardless and unreviewable discretion invites arbitrary and discriminatory enforcement of the law. It violates the basic notions of fundamental fairness and even-handed justice which in our system underlie the constitutional guarantees of due process and equal protection.
When a motorist of ordinary intelligence cannot foresee whether conduct which the Maine statute proscribes may amount to a criminal offense or be only a traffic infraction, this statutory scheme may suffer the further infirmity of vagueness, which amounts to a denial of due process of law. A defendant is constitutionally protected against being “required at the peril of life, liberty or property to speculate as to the meaning of penal statutes.” Lanzetta v. New Jersey, 306 U.S. 451, 453 , 59 S.Ct. 618, 619 , 83 L.Ed. 888 (1939) (statute penalizing “gangsters”).
It is not enough that the prohibitions of the statute be set forth in plain language understandable by the average person; 5 this guarantee applies as much to the penalty provisions of a statute. Commonwealth v. Gagnon, 387 Mass. 567 ,-, 441 N.E.2d 753, 755 (1982) (statute prohibiting distribution of heroin held unconstitutionally vague in that its penalty clause comprehended two inconsistent penalty schemes). See generally Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U.Pa.L.Rev. 67 (1960).
I conclude, then, that the duplicative features of Maine’s operating-under-the-influence statute do not pass constitutional muster. These sections, as we have seen, proscribe identical conduct in identical terms but prescribe for the defendant convicted of the criminal offense penalties substantially higher than the penalties prescribed for the defendant found guilty of a mere traffic violation. The choice between these sections is left to the whim of a prosecutor. Such a statutory pattern, I submit, not only offends the constitutional doctrine of separation of powers 6 but also violates both the Equal Protection and Due Process Clauses of the Fourteenth Amendment. 7
Therefore, I would see no recourse but to vacate the judgment of the court below.
. Comment, Duplicative Statutes, Prosecutorial Discretion, and the Illinois Armed Violence Statute, 71 Journal of Criminal Law and Criminology 226, 236 (1980).
. Helvering v. Mitchell, 303 U.S. 391, 399 , 58 S.Ct. 630, 633 , 82 L.Ed. 917 (1938), relied upon in the concurring opinion, was a case in which double jeopardy was the only question raised. The case has no relevance to the equal protection and the due process issues which are paramount here.
.Violators of 18 U.S.C. § 922 (h) are subject to a maximum prison term of five years and maximum fine of $5,000; violators of 18 U.S.C.App. § 1202(a) are subject to a maximum two-year term and a maximum fine of $10,000. See Batchelder, 442 U.S. at 118-19 , 99 S.Ct. at 2201-02 .
. With the elements of the civil and criminal offenses identical, in some circumstances the prosecutor may deny a defendant a jury trial by opting to go the route of the traffic infraction.
. Cf. People v. Alfaro, 144 Cal.App.3d 683 , 192 Cal.Rptr. 178 (Cal.Ct.App. June 2, 1983) (striking down the 0.10% blood alcohol standard of a remarkably similar California statute as unconstitutionally vague).
. Implicit in the federal constitution, the doctrine of separation of powers is explicitly set forth in our state constitution. Me.Const. art. Ill, §§ 1-2.
.For a thoughtful comment canvassing the constitutional problems inherent in this statute and concluding that the duplicative aspects must be eliminated to safeguard the constitutional rights of defendants, see Comment, Constitutional Issues Raised by the Civil-Criminal Dichotomy of the Maine OUI Law, 35 Me.L. Rev. 385 (1983).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9761176. Public record. Not legal advice.