Petition for Writ of Certiorari — Blanton v. North Las Vegas

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IN THE SUPREME COURT OF THE

UNITED STATES

October Tern,

Supreme Court, US.

1987 FILED

MELVIN R. BLANTON,

MARK D. FRALEY,

FEB 276 1988

JOSEPH F. SPANIOL, JR.

CLERK

)

) NSCT.

Petitioners, ) (Blanton)

) NSCT. NO. 18065

vs. ) (Fraley)

)

CITY OF NORTH )

LAS VEGAS, STATE OF )

NEVADA, )

)

Respondent. )

)

On Writ of Certiorari To The

GRAVES, LEAVITT & KOCH

JOHN J. GRAVES, JR., ESQ.

601 S. Sixth Street

Las Vegas, NV 89101

(702) 385-7277

Counsel for Blanton

JOHN G. WATKINS,

333 N. Rancho Rd.,

Las Vegas, Nevada 89106

(702) 646-3155

Counsel for Fraley

Counsel for

Petitioners

#633

CITY OF NORTH

LAS VEGAS

City Attorney's

Office-Criminal

1301 E. Lake

Mead

N. Las Vegas, NV

ATTORNEY GENERAL

State Mailroom

Complex

Las Vegas, NV

89158

Counsel for

Respondent

Whether the misdemeanor offense of

driving under the influence of intoxicating

liquor ("D.U.I") under Nevada state law is

a “serious” crime allowing a right to jury

trial.

Il.

TABLE OF CONTENTS

QUESTION PRESENTED

FOR REVIEW

TABLE OF CONTENTS

TABLE OF AUTHORITIES

GROUNDS UPON WHICH THE

JURISDICTION OF THIS COURT

IS INVOKED

A. The Date of The Judgment

Sought to be Reviewed

B. Date of Order Denying

Rehearing

Cc. Statutory Provision

Conferring Jurisdiction

On This Court to Review

The ent by Writ

Of Certiorari

D. Statutory Provisions

E. Statement of Facts

(Blanton)

(Fraley)

F. Stage In State Proceedings

That Federal Issue

Was First Presented

Contentions Relied On

For Allowance of Writ of

Certiorari

(1.) D.U.I. Is A "Serious"

Crime Which Should Be

Triable By Jury

(2.) The Standard For A

Jury Trial Set out in

Duncan V. Louisiana Has

Been Met

(3.) Unequal Application

Of the law Is Resulting

Because of This Unresolved

Issue

CONCLUSION

CERTIFICATE OF SERVICE BY MAIL

CERTIFICATE OF MAILING BY

COUNSEL FOR PETITIONER

28 U.S.C. §1257

N.R.S. 484.379

N.R.S. 484.3792

N.R.S. 483.460

Cases Cited:

427 U.S. 463 (1976)

472 U.S. 372 (1985)

399 U.S. 66 (1970)

(plurality opinion)

648 F.Supp. 1094 (D.Nev. 1986)

300 U.S. 617 (1937)

282 U.S. 63 (1930)

391 U.S. 145 (1968)

435 U.S. 333 (1978)

415 U.S. 250 (1974)

United States v. Best

573 F.2d 1095 (CA9 1978)

652 F.2d 23 (CA9 1981)

Ward v. Illinois

431 U.S. 767 (1977)

The Date of Judgment

Sought to be Reviewed

The Supreme Court of the State of

Nevada on December 31, 1987, denied the

Appeal of Defendant, Blanton, and further

reversed the Order of the Eighth Judicial

Court, Clark County, Nevada, granting

Defendant, Fraley, a jury trial. Both

Defendants were thereby denied jury trials

for their D.U.I. offenses. (See Appendix,

Tab "A", copy of the Decision).

Date of Order Denying Rehearing

No petition for rehearing was filed

by either Defendant in the Supreme Court of

Nevada.

Statutory Provision Conferring

Jurisdiction On This Court to

Review the Judgment by Writ of Certiorari

28 U.S.C. §1257 provides:

State courts; appeal;

certiorari

Final judgments or decrees

rendered by the highest

court of a State in which a

decision could be had, may

be reviewed by the Supreme

Court as follows:

(1) By appeal, where is

drawn in question the

validity of a treaty or

statute of the United

States and the decision is

against its validity.

(2) By appeal, where is

drawn in question the

validity of a statute of

any state on the ground of

its being repugnant to the

Constitution, treaties or

laws of the United States,

and the decision is in

favor of its validity.

(3) By writ of certiorari,

where the validity of a

treaty or statute of the

United States is drawn in

question or where the

validity of a State statute

is drawn in question on the

ground of its being

repugnant to the

Constitution, treaties of

laws of the United States,

or where any title, right,

privilege or immunity is

specially set up or claimed

under the Constitution,

treaties or statutes of, or

commission held or

authority exercised under,

the United States.

Statutory Provisions

Nevada Revised Statute 484.379

provides:

484.379. Driving while

intoxicated: Unlawful acts.

1. It is unlawful for

any person who:

(a) Is under the

influence of intoxicating

liquor; or

(b) Has 0.10 percent

or more by weight of

alcohol in his blood, to

drive or be in actual

physical control of a

vehicle on a highway or on

premises to which the

public has access.

2. It is unlawful for

any person who is an

habjtual user of or under

the influence of any

controlled substance, or is

under the combined

influence of intoxicating

liquor and aée controlled

substance, or any person

who inhales, ngests,

applies or otherwise uses

any chemical, poison or

organic solvent, or any

compound or combination of

of these, to a degree

which renders him incapable

of safely driving or

exercising actual physical

control of a vehicle to

drive or be in actual

physical control of a

vehicle on a highway or on

premises to which the

public has access. The

fact that any person

charged with a violation of

this subsection is or has

been entitled to use that

drug under the laws of this

state is not a defense

against pon J charge of

violating this subsection.

Nevada Revised Statute 484.3792

provides:

484.3792. Driving while

intoxicated: Penalties;

segregation of offender;

probation, suspension of

sentence and plea

bargaining prohibited;

intermittent confinement;

consecutive sentences.

1. Any person who

violates the provisions of

NRS 484.379:

(a) For the first

offense within 7 years, is

guilty of a misdemeanor.

Unless he is allowed to

undergo treatment as

provided in NRS 484.3794,

the court shall:

(1) Order him

to pay tuition for an

educational course on the

abuse of alcohol and

controlled substances

approved by the department

and complete the course

within the time specified

in the order, and the court

shall notify the department

if he fails to complete the

=— within the specified

time;

(2) Unless the

sentence is reduced

pursuant to NRS 484.3794,

sentence him to

imprisonment for not less

than 2 days nor more than 6

months in jail, or to

perform 48 hours of work

for the community while

dressed in distinctive

garb which identifies him

as having violated the

provisions of NRS 484.379;

and

(3) Fine him

not less than $200 nor more

than $1,000.

The teacher of the

educational course shall

evaluate the offender and,

if he finds the offender is

an abuser of alcohol or

controlled substances, he

shall promptly report his

findings to the court for

its use.

(b) For a second

offense within 7 years, is

guilty of a misdemeanor.

Except as provided in NRS

484.3794, the court shall

sentence him to

imprisonment for not less

than 10 days nor more than

6 months in jail and fine

him not less than $500 nor

more than $1,000.

subsequent offense within 7

years, shall be punished by

imprisonment in the state

prison for not less than 1

year nor more than 6 years

and must be further

punished by a fine of not

less than $2,000 nor more

than $5,000. An offender

so imprisoned must be

segregated insofar as

practicable from offenders

whose crimes were violent,

and must be assigned to an

institution of minimum

security or, if space is

available, to an honor

camp, restitution center or

similar facility.

2. Any offense which

occurred within 7 years

immediately preceding the

date of the principal

offense or after the

principal offense

constitutes a prior offense

for the purposes of this

section when evidenced by a

conviction, without regard

to the sequence of the

offenses and convictions.

The facts concerning a

prior offense must be

alleged in the complaint,

indictment or information,

must not be read to the

jury or proved at trial but

must be proved at the time

of sentencing, if the

principal offense is

alleged to be a felony,

must also be shown at the

preliminary examination or

presented to the grand

jury.

3. No person convicted

of violating the provisions

of NRS 484.379 may be

released on probation, and

no sentence imposed for

violating those provisions

may be suspended. No

prosecuting attorney may

dismiss a charge of

violating the provisions of

NRS 484.379 in exchange for

a plea of guilty or nolo

contendere to a lesser

charge or for any other

reason unless he knows or

it is obvious that the

charge is not supported by

probable cause or cannot be

proved at the time of

trial.

4. Any term of

confinement imposed under

the provisions of this

section may be served

intermittently at the

discretion of the judge or

justice of the peace,

except that a pexson who is

convicted of a second or

subsequent offense within 7

years must be confined for

at least one segment of not

less than 48 consecutive

hours. This discretion

must be exercised after

considering all the

circumstances’ surrounding

the offense, and the family

and employment of the

offender, but any sentence

of 30 days or less must be

served within 6 months

after the date of

conviction or within 6

months after the date of

sentencing if the offender

underwent treatment

pursuant to NRS 484.3794.

Any time for which the

offender is confined must

consist of not less than 24

consecutive hours.

5. Jail sentences

simultaneously imposed

under this section and NRS

483.560 or 485.330 must run

consecutively.

6. As used in this

section, unless the context

otherwise requires,

"offense" means a violation

of NRS 484.379 or 484.3795

or homicide resulting from

the driving of a vehicle

while under the influence

of intoxicating liquor or a

controlled substance, or

the violation of a law of

any other jurisdiction

which prohibits the same

conduct.

’

Nevada Revised Statute 483.460

provides:

483.460. Mandatory

revocation of license,

permit or privilege to

drive; periods of

revocation.

1. Unless otherwise

provided by statute, the

department shall revoke the

license, permit or

privilege of any driver

upon receiving a record of

his conviction of any of

the following offenses,

when that conviction has

become final, and the

driver is not eligible for

a license, permit or

privilege to drive for the

period indicated:

(a) For a period of

3 years if the offense is:

(1) Violation

of NRS 484.3795 or

subsection 2 of NRS 484.377

or homicide resulting from

driving a vehicle while

under the influence of

intoxicating liquor or a

controlled substance.

(2) A third or

subsequent violation within

7 years of NRS 484.379.

(b) For a period of

1 year if the offense is:

(1) Any other

manslaughter resulting from

the driving of a motor

vehicle or felony in the

commission of which a motor

vehicle is used, including

the unlawful taking of a

motor vehicle.

(2) Failure to

stop and render aid as

required under the laws of

this state in the event of

a motor vehicle accident

resulting in the death or

bodily injury of another.

(3) Perjury or

the making of a false

affidavit or statement

under oath to the

department under NRS

483.010 to 483.630,

inclusive, or under any

other law relating to the

ownership or driving of

motor vehicles.

(4) Conviction,

or forfeiture of bail not

vacated, upon three charges

of reckless driving

committed within a period

of 12 months.

(5) A second

violation wichin 7 years of

NRS 484.379 and the driver

is not eligible for a

restricted license during

any of that period.

90 days, if the offense is

a first violation within 7

years of NRS 484.379.

2. The department shall

revoke the license, permit

or privilege of a driver

convicted of violating NRS

484.379 who fails to

complete the educational

course on the use of

alcohol and controlled

substances within the time

ordered by the court and

shall add a period of 90

days during which the

driver is not eligible for

a license, permit or

privilege.

3. When the department

is notified by a court that

a person who has been

permitted to enter a

program of treatment

pursuant to NRS 484.3794

the department shall reduce

by half the period during

which he is not eligible

for a license, permit or

privilege to drive, but

shall restore that

reduction in time if

notified that he was not

accepted for or failed to

complete the treatment.

Statement of Facts

(Blanton)

Defendant, Blanton, was arrested for

D.U.I. in North Las Vegas, Nevada, on July

18, 1926, and charged by citation with a

Violation of N.R.S. 484.379 (D.U.I.).

Written demand for jury trial was denied by

the North Las Vegas Municipal Court, and an

Original petition for writ of mandamus was

filed in the Eighth Judicial District

Court, Clark County, State of Nevada, which

later denied the same. Appeal was taken to

the Nevada Supreme Court which affirmed the

lower court's decision denying the jury

trial.

(Fraley)

Defendant, Fraley, was arrested on

June 29, 1986, in North Las Vegas, Nevada,

and charged with a violation of N.R.S.

484.379 (D.U.I.). Written demand for jury

trial was denied by the North Las Vegas

Municipal Court, and Fraley plead guilty.

Notice of Appeal to the Eighth Judicial

District Court was timely filed for Trial

de novo. This latter court granted

Defendant's demand for jury trial and

remanded; the City of North Las Vegas,

Nevada, filed a petition for writ of

certiorari with the Supreme Court of

Nevada, which Court later, on December 31,

1987, reversed the lower court, thereby

denying Fraley's jury trial.

Blanton's Appeal (NSCT No. 17940) and

Fraley's Case (NSCT No. 18065) were

considered along with 9 other cases upon

the same issue by the Nevada Supreme Court.

Stage In State Proceedings That

Federal Issue Was First Presented

The federal issues were first

formally considered orally and in writing

before the Eighth Judicial District Court,

Clark County, State of Nevada, and later

before the Supreme Court of the State of

Nevada which addressed the federal issues

in its Decision.

Contentions Relied On for

Allowance of Writ of Certiorari

(1.)

D.U.I. Is A "Serious" Crime

Which Should Be Triable By Jury

N.R.S. 484.3792 requires a person

convicted of first offense D.U.I. to:

(a) 2 days incarceration or 48

hours (six (6) eight (8) hour days) of

cowmunity service work; 6 months maximum

incarceration is allowed by statute

(b) a mandatory minimum $200

fine, and up to $1,000 maximum

ee ee ee et a

which costs the Defendant about $150, and

(d) NRS 484.384 requires a

mandatory driver's lic»nse revocation for

90 days upon DUI conviction by the State of

Nevada Department of Motor Vehicles.

(e) As a practical matter,

automobile insurance premiums skyrocket for

a person convicted of D.U.I.

(f) Upon a second conviction

for misdemeanor D.U.I. within a 7-year

period, a mandatory 10 days incarceration

and a mandatory minimum fine of $500.

(g) A third arrest for D.U.I.

within 7 years is a felony carrying, upon

conviction, a mandatory minimum prison term

of 1 year (up to 6 years) and a fine of not

less than $2000 up to $5000.

The direct and collateral

consequences of conviction for D.U.I.

require the option of a jury trial to a

Defendant so charged. Duncan v. Louisiana,

391 U.S. 145 (1968). It is equally clear

that our society considers a charge of

D.U.I. to be a "serious" crime, thereby

mandating the option of a jury trial.

Baldwin v. New York, 399 U.S. 66, 68 (1970)

(plurality opinion); District of Columbia

v. Clawans, 300 U.S. 617, 628 (1937).

(2.)

The Standard for A Jury Trial Set Out

In Duncan v. Louisiana Has Been Met

Duncan v. Louisiana, supra, indicates

that a national standard is the test for

jury trial. See Appendix, Tab "B", for a

listing of States which allow D.U.I. jury

trials. The State of Nevada is a part of a

minority of States which deny a jury trial

in a D.U.I. prosecution.

((3.)

Unequal Application of the Law Is

The Supreme Court of Nevada has ruled

that a jury trial is not allowed in D.U.I.

prosecutions by either the State of Federal

Constitutions in State or City courts in

the State of Nevada.

The federal district court for the

District of Nevada has recently ruled that

a jury trial is allowed in the State of

Nevada pursuant to federal law. See

Appendix, Tab "C", Decision in Bronson v.

Swinney, 648 F.Supp. 1094 (D. Nev. 1986),

now on Appeal to the Court of Appeals for

the Ninth Circuit.

The Ninth Circuit Court of Appeals

itself has ruled that D.U.I. is a "serious"

charge carrying a right to jury trial.

United States v. Craner, 652 F.2d 23 (CA9

1981); United States _v. Best, 573 F.2d

1095, 1099 (CA9 1978). Compare, District

of Columbia v. Colts, 282 U.S. 63 (1930)

where this Court held that reckless driving

was both indictable at common law and Malem

in se, and thereby "serious".

The way things stand now in Nevada is

that a Defendant cannot obtain a jury trial

in a State or city court, but can obtain a

jury trial in federal court for D.U.I. if

he happens to be arrested on federal land.

But more importantly, a Defendant who is

convicted of D.U.I. in State court can

simply file a petition for writ of habeas

corpus pursuant to 28 U.S.C. §2254 in

federal court where, as a matter of federal

law, the state conviction is vacated and

remanded to the State or city court for

Trial before a jury. Defendants who cannot

afford legal fees for a federal petition

for writ of habeas corpus are denied a jury

trial, while more affluent Defendants can

have their convictions vacated.

Not only is the State of Nevada

seemingly in conflict with most States

(which allow jury trials in D.U.I. cases),

but is in conflict with the Ninth Circuit

Court of Appeals as to the allowance of a

jury trial in D.U.I. cases pursuant to

federal law. It has been held that a

direct conflict between a decision of a

Court of Appeals and that of the highest

court of a State where that conflict

concerns a federal question, is an

established reason for a grant of

certiorari. Anderson v. Maryland, 427 U.S.

463 n.5 (1976); Lakeside _v. Oregon, 435

U.S. 333, 336 & N.3 (1978); Baldwin v.

Alabama, 472 U.S. 372 -(1985).

Likewise, the Supreme Court of the

State of Nevada's decision in the within

cases is at a precise loggerhead with the

decision of the federal court of the

District of Nevada in Bronson v. Swinney,

supra. Such a conflict is also a

recognized reason for a grant of

certiorari. Cf. Memorial Hospital v.

Mericopa County, 415 U.S. 250 (1974) (this

Court noted probable jurisdiction of an

appeal from the highest state court to

resolve a conflict between that court and a

federal 3-judge court, both having ruled on

the constitutionality of the same state

statute); see also Ward v. Illinois, 431

U.S. 767, 770-71 (1977). |

Certiorari should be granted in these

cases to resolve this intolerable federal-

state conflict over jury trials in Nevada

ne ey ee Bet

state D.U.I. cases.

IV.

CONCLUSION

For the above-cited reasons, this

Court should grant certiorari in these

cases to consider the issue on the merits.

DATED this “day of February, 1988.

GRAVES, LEAVITT & KOCH

ESQ.

Las Vegas, Nevada 89101

(702) 385-7277

Counsel for BLANTON

JOHN G. WATKINS, ESQ.

33 North Rancho Rd., #633

Las Vegas, Nevada 89106

(702) 646-3155

Counsel for FRALEY

Attorneys for Defendants/Petitioners

MELVIN R. BLANTON,

MARK D. FRALEY,

Petitioners,

vs. NSCT. NO. 17940

(Blanton)

NSCT. NO. 18065

‘Praley)

CITY OF NORTH

LAS VEGAS, STATE OF

NEVADA,

Respondent.

ee ee Ne ee ee ee ee ee es se Se

STATE OF NEVADA )

COUNTY OF CLARK ; ae

The undersigned hereby certifies and

affirms that I am an Employee of the law

office of JOHN J. GRAVES, JR., ESQ.,

attorney for Petitioner in the above-

entitled matter, and a person of such age

and discretion as to be competent to serve

papers.

That on February -<¥"%, 1988, I

served a copy of the foregoing and

attached PETITION FOR WRIT OF CERTIORARI

by depositing same in an enclosed in an

envelope, first-class postage fully

prepaid in the United States Mails,

addressed as follows:

City of North Las Vegas

City Attorney's Office

Criminal Division

1301 East Lake Mead

North Las Vegas, Nevada 89030

ATTORNEY GENERAL'S OFFICE

300 South Fourth #1100

Las Vegas, Nevad~ 89158

STATE OF NEVADA ATTORNEY GENERAL'S

OFFICE

Heroes Memorial Building

Carson City, Nevada 89710

Theresa J. Ao An Employee of

JOHN J. GRAVES, JR., ESQ.

MELVIN R. BLANTON,

MARK D. FRALEY,

Petitioners,

vs. NSCT. NO. 17940

(Blanton)

NSCT. NO. 18065

(Fraley )

CITY OF NORTH

LAS VEGAS, STATE OF

NEVADA,

Respondent.

me ee ee ee ee ee ee ee ee ee ee

Pursuant to Rule 28.2 of the Rules of

the Supreme Court of the United States,

Counsel for Petitioner herein, a member of

the Bar of this Court, Certifies that to

his knowledge the Petition for Writ of

Certiorari was mailed to this Court on the

ay aay of February, 1988, within the

permitted time to file said Petition, and

that copies of the same were, on that date

mailed to the North Las Vegas City

Attorney's Office, Attorney General's

Office, Las Vegas, Nevada,and State of

Nevada Attorney General's Office, Carson,

City, Nevada.

DATED this ~/“day of February, 1988.

RAVES, J ESO.

SUBSCRIBED AND SWORN to before me

this .”//Sday of February, 1988.

NOTARY Lt in and for

Clark County, State of Nevada.

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