Reply Brief — Blanton v. North Las Vegas

No. 87-1437 _

In The

Supreme Court of the United States

October Term, 1987

=

MELVIN R. BLANTON and

MARK D. FRALEY,

Petitioners,

vs.

CITY OF NORTH LAS VEGAS, NEVADA,

Respondent.

—— >

ON WRIT OF CERTIORARI

TO THE SUPREME COURT OF

THE STATE OF NEVADA

> ae

PETITIONERS’ REPLY BRIEF

> a

Joun J. Graves, Jr.

601 South Sixth Street

Las Vegas, Nevada 89101

(702) 385-7277

Attorney for Blanton

Joun G. WarKINsS

333 North Rancho Rd., #633

Las Vegas, Nevada 89106

(702) 646-3155

Attorney for Fraley

Counsel for Petitioners

COCKLE LAW BRIEF PRINTING CO., (600) 225-6964

OR CALL COLLECT (402) 42-283)

QUESTION PRESENTED FOR REVIEW

Whether the misdemeanor offense of driving a vehi-

cle while intoxicated under Nevada state law is a

“serious” crime to which the right to jury trial applies.

il

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW ..........-. i

TABLE OF CONTENTS. ........-- 0 ceeeeeeeeeeeeees ii

TABLE OF AUTHORITIES...........-+-0eeeeeeeeee iii

ARGUMENT. .......ccccccccccccccscccscssccssssess 1

I Post-Baldwin Tests Used to Determine and

Analyze the Right to Trial by Jury............ 1

II This Court Has Determined That DWI is a

Serious Offense ..........cccccecccccrsscvcces 3

III The Impact of Nationwide DWI Jury Trials... 6

IV The “Bright-Line” Test........-----++seeeeeees 9

V Classification of the Offense by the States and

Federal Government....... ‘scccceeseeennnnene 10

CONCLUSION .... 0. ccs ccccccccccccccscssssssssses 13

iii

TABLE OF AUTHORITIES

Page

Cases

Baldwin v. New York, 399 U.S. 66 (1970). 2, 3, 6, 8, 9, 11

Brady v. Blair, 427 FSupp. 5 (SD Ohio 1976).......... 2

Callan v. Wilson, 127 U.S. 540 (1888)................5. 4

Codispoti v. Pennsylvania, 418 U.S. 506 (1974) ...... 1,2

District of Columbia v. Colts, 282 U.S. 63, 51 S.Ct.

| re meyer 2

Duncan v. Louisiana, 391 U.S. 145 (1968)........... 7,9

Landry v. Hoepfner, 840 F.2d 1201 (CA5 1988)...... ~o

Martin v. Ohio, 480 U.S. 228, 107 S.Ct. 1098 (1987) ....11

Mathews v. Eldridge, 424 U.S. 319 (1976) .............. 7

McMillan v. Pennsylvania, 477 U.S. 79 (1986)....... 7, 8

Morrisette v. United States, 342 U.S. 246 (1952)........ 5

Muniz v. Hoffman, 422 U.S. 454 (1975)............ 1, 11

South Dakota v. Neville, 459 U.S. 553 (1983) ........ 4, 6

United States v. Craner, 652 F.2d 23 (CA9 1981) .... 2, 3

United States v. Jenkins, 780 F.2d 472 (CA4 1986)......2

United States v. Woods, 450 F.Supp. 1335 (Md. 1978) ..... 2

Welsh v. Wisconsin, 466 U.S. 740 ( 984).......... 2, 5, 6

FeperaAt CONSTITUTION

De es Cicer ecesesesencoesacens 6

STATUTES

aah pGbGadeeddteccececcuescsccecscce: 11

Labor Management Relations Act §10(1).............. 1

ARGUMENT

Post-Baldwin Tests Used to

Determine and Analyze the Right to Trial by Jury

In Muniz v. Hoffman, 422 U.S. 454 (1975), this Court,

in determining whether a right to trial by jury existed for

criminal co. ° ~ _pt pursuant to §10(1) of the Labor Man-

agement Relations Act, as amended, “capsulated” consti-

tutional doctrine at 422 U.S. 475-76:

(1) Like other minor crimes, “petty” contempts may

be tried without a jury, but contemnors in serious

contempt cases in the federal system have a Sixth

Amendment right to a jury trial;

(2) criminal contempt, in and of itself and without

— to the punishment imposed, is not a serious

offense absent legislative declaration to the contrary;

(3) lacking legislative authorization of more serious

punishment, a sentence of as much as six months in

prison, plus normal periods of probation, may be

imposed without a jury trial;

(4) but imprisonment for longer than six months is

constitutionally impermissible unless the contemnor

has been given the opportunity for a jury trial.

Paragraph 2 is a restatement of the “nature of the

offense” test, while paragraph 3 leaves the door open to

consider punishment or penalties other than potential

incarceration and fine. Muniz was decided the year after

Codispoti v. Penr:sylvania, 418 U.S. 506 (1974) which stated

at 418 U.S. 512:

Since that time, our decisions have established a

fixed dividing line between petty and serious

offenses: those crimes carrying a sentence of more

than six months are serious crimes and those carry-

ing a sentence of six months or less are petty crimes.

This author concludes that this Court utilized the

Baldwin, infra, test in the Codispoti case because only a

fine and incarceration were at issue. Further, Baldwin v.

New York, 399 U.S. 66 (1970) was relied upon as authority,

which case preserved the “nature of the offense” test.

Baldwin, 399 U.S. at 69, n.6. The “nature of the offense”

test, therefore, remains viable, and the consideration of

penalties other than incarceration and fine has been

legitimated.

In Welsh v. Wisconsin, 466 U.S. 740 (1984), a warrant-

less home DWI arrest case, Justice White joined by Justice

Rehnquist, in dissent, set out certain factors which indi-

cated the “seriousness” of the DWI offense under consid-

eration there. 466 U.S. at 763. Going beyond mere

incarceration and fine, one factor was found to be the

right to trial by jury set by the legislature, and another

factor was the consequence of mandatory driver’s license

revocation upon conviction of DWI. Cases relied upon as

authority were United States v. Craner, 652 F.2d 23, 24-27

(CA9 1981); United States v. Woods, 450 F.Supp. 1335, 1340

(Md. 1978); Brady v. Blair, 427 F.Supp. 5, 9 (SD Ohio 1976),

all DWI jury trial cases. The “nature of the offense” case

of District of Columbia v. Colts, 282 U.S. 63, 51 S.Ct. 52, 75

L.Ed. 177 (1930) was also cited.

These lower federal court decisions, supra, as well as

analysis set out in United States v. Jenkins, 780 F.2d 472

(CA4 1986) and Landry v. Hoepfner, 840 F.2d 1201 (CAS

1988), never rely solely on a six-month incarceration

“pright-line” standard. Invariably, the “nature of the

offense” test, penalties beyond incarceration and fine,

and the right to trial by jury in other State jurisdictions

are placed into the mix, and balanced against the six-

<

month standard. The lower federal courts seem reticent

to adopt a rigid, fixed test, as Respondent and its amici

would have this Court do. Even Landry v. Hoepfner, supra,

a decision which denied the right to trial by jury in a

Louisiana state case, parsed each and every non-“bright-

line” test, and argued it away.

Amicus State of Nevada complains that Petitioners’

authority, United States v. Craner, supra, aid not legitimate

a “collateral consequences” test because the DWi offense

there at issue arises from a federal regulation, not Con-

gress as the Nation’s surrogate. Petitioners urge this case

to the Court’s attention because it weighs maximum pen-

alty and other factors about equally in determining the

seriousness of the offense.

This Court is urged by Petitioners to retain the reli-

able, clear-cut Baldwin test, but to allow the lower State

and Federal courts, at need, as in the case at bar, to

evaluate the right to trial by jury by other criteria, supra.

There are certain offenses, like the Nevada DWI law,

which cannot be properly catalogued under the “bright-

line” umbrella solely; such offenses cannot be isolated

from other real, societal factors and forces that unques-

tionably gauge them “serious.” These hybrid crimes seek-

ing “serious” status, sharing elements of the petty and

the serious, should be far and few between. To even

imagine a petty crime that would burst onto the Ameri-

can landscape as this DWI offense has done, is difficult,

and even that offense has taken 10 years to ripen.

Il.

This Court Has Determined That DWI

is a Serious Offense

In cases decided by this Court after Baldwin v. New

York, 399 Us. 66 (1970), the offense of DWI and its

societal consequences has been painted in somber tones.

In South Dakota v. Neville, 459 U.S. 553, 558-59 (1983), a

DWI case allowing the use of a Defendant's refusal to

submit to a blood-alcohol test before the trier of fact as

evidence of guilt, the majority prefaced its decision with

these words:

The situation underlying this case - that of the drunk

driver — occurs with tragic frequency on our Nation’s

highways. The carnage caused by drunk drivers is

well documented and needs no detailed recitation

here. This Court, although not having the daily con-

tact with the problem that the state courts have, has

repeatedly lamented the tragedy. See Breithaupt v.

Abram, 352 U.S. 432, 439, 77 S.Ct. 408, 412, 1 L.Ed.2d

448 (1957) (“The increasing slaughter on our high-

ways, most of which should be avoidable, now

reaches the astounding figures only heard of on the

battlefield”); Tate v. Short, 401 U.S. 395, 401, 91 S.Ct.

668, 672, 28 L.Ed.2d 130 (1971) (BLACKMUN, J., con-

curring) (deploring “traffic irresponsibility and the

frightful carnage it spews upon our hi hways”);

Perez v. Campbell, 402 U.S. 637, 657, 672, 91 S.Ct. 1704,

1715, 1722, 29 L.Ed.2d 233 (1971) (BLACKMUN, J.,

concurring) (footnote omitted) (“The slaughter on the

highways of this Nation exceeds the death toll of all

our wars”); Mackey v. Montrym, 443 U.S. 1, 17-19, 99

S.Ct. 2612, 2620-2621, 61 L.Ed.2d 321 (1979) (recog-

nizing the “compelling interest in highway safety’ ).

These vivid passages illuminate “ . . . an offense of a

grave nature, affecting the public at large; ...”. Callan v.

Wilson, 127 U.S. 540, 556 (1888). This section of the Neville

case, its«'f amply answers amicus State of Nevada's asser-

tion (Br. 21) that “ . . . Driving under the influence of

liquor is not an inherently evil and injurious act as the act

itself does not necessarily injure another person and is

not universally considered as immoral . . . “

This Court has also expressed the belief that the

prevention of drunken driving was properly a major con-

cern to the States. Welsh v. Wisconsin, 466 U.S. 740, 754

n.14 (1984); Welsh, supra, 466 U.S. at 755 (Blackmun, J.,

concurring), “” .. . the child (drunk driver) is engaging in

an act that is dangerous to others who are law abiding

and helpless in the face of the child’s (drunk driver’s)

act.” (Parentheses and content added); see also, Welsh,

supra, 466 U.S. at 762-63 (White, J., dissenting).

Amicus State of New Jersey (Br. 21-22) concludes,

without authority, that the alternate method of prosecut-

ing drunk driving cases which focuses on 0.10% or more

by weight of alcohol in the driver’s blood, and de-empha-

sizes evidence of driving difficulty, field sobriety tests,

and physical signs of intoxication. indicates that drunk

driving is not a malum in se offense. On the contrary, this

alternate, easily provable method of conviction attests the

firm intent of every State to convict drunk drivers and

deter others. See Welsh, supra, 466 U.S. at 763 (White, J.,

dissenting). It does not follow that an offense ceases to be

“serious” or one malum in se just because a State makes

the imminently logical choice to crack down on offenders

by a surer, more efficient method of proof.

The cases of this Court, as few as they are, on DWI-

related issues, clearly reflect the Nation’s perception that

the nature of the offense of DWI is “serious”, a malum in

se crime that is “immoral in its nature and injurious in its

consequences.” Compare, Morrisette v. United States, 342

U.S. 246 (1952). Indeed, Respondent and its amici cite no

case from this Court which states that DWI, as presently

constructed in most State jurisdictions and by the federal

government, is not a crime malum in se; Petitioners have,

—

felony status carrying one to six years in

the Nevada State Prison, one year of which

is non-probationable.

These draconian "collateral

consequences" are set out in N.R.S.

484.3792 and N.R.S. 483.460 (mandatory

revocation of driver's license), petition

for writ of certiorari filed herein (pp.

11-18).

The offense of drunk-driving, at

least as defined by Nevada statute, does

not neatly fit under the “bright line"

Duncan wmhrella; a more introspective

analysis is needed here.

Lastly, the City relies on this

Court's dismissa) of the appeal in

airnsfather v. Louisiana, __ U.S.

; 107 S.Ct. 1620, 95 L.Ed.2d 195

(1987), for want of a substantial federal

question. There Bairnsfather argued in his

Jurisdictional Statement that drunk-driving

was a “malum in se" offense and that this

5

; . —— — =~ -

‘ t gqgecner with Statutory

5 | ~~ » § «= «= -

ind loss Oo f driver's license

onviction made the offense "serious."

The present petition uses the classic

"nose counting" test of Duncan as well as

~

Specific Nevada statutory punishment, and

therein lies the

difference between this

case and Bairnsfather, supra.

Iil.

CONCLUSION

For the above-cited reasons, this

Court should grant the Petition and set the

issue for briefing and oval argument.

Respectfully submitted:

GRAVES, LEAVITT & KOCH

GRAVES, JB&., ESQ.

-601 South Sixth Street

Las Vegas, Nevada 89101

(702) 385-7277

Counsel for BLANTON

JOHN G. WATKINS, ESQ.

a

j

l CLA ,

er ae, Vitbane

/ JOHN G. WATKINS, ESQ.

/333 North Rancho Rd., #633

Las Vegas, Nevada 89106

(702) 646-3155

Counsel for FRALEY

Attorneys for Defendants/Petitioners

IV.

F SERVICE BY MAIL

MELVIN R. BLANTON, )

MARK D. FRALEY, )

)

Petitioners, ) No. 87-1437

)

vs. ) NSCT. NO. 17940

) (Blanton)

CITY OF NORTH )

LAS VEGAS, STAYE OF )

NEVADA, )

)

)

)

NSCT. NO. 18065

(Fraley)

Respondent.

STATE OF NEVADA )

) ss:

COUNTY OF CLARK )

The undersigned hereby certifies and

affirms that = am an Employee of the law

office of JOHN J. GRAVES, JR.

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 May ,/7/%, 1988, I served

three (3) copies of the foregoing REPLY

BRIEF IN SUPPORT OF PETITION FOR WRIT OF

10

CERTIORARI by depositing same in an

enclosed envelope, first-class postage

fully prepaid in the United States Mails,

addressed as follows:

City of North Las Vegas

City Attorney's Office

400 East Stewart Avenue

Las Vegas, Nevada 89101

ATTORNEY GENERAL'S OFFICE

300 South Fourth #1100

Las Vegas, Nevada 89158

STATE OF NEVADA ATTORNEY GENERAL'S

OFFICE

Heroes Memorial Building

Carson City, Nevada 89710

7 Cee

LAMA LLA F bathe

Theresa J. Cole, An Employee of

JOHN J. GRAVES, JR., ESQ.

11

Vv.

CERTIFICATE OF MAILING BY

COUNSEL FOR PETITIONER

MELVIN R. BLANTON,

MARK D. FRALEY,

Petitioners, No. 87-1437

)

)

)

)

)

vs. ) NSCT. NO. 17940

) (Blanton)

CITY OF NORTH )

LAS VEGAS, STATE OF )

NEVADA, )

)

)

)

NSCT. NO. 18065

(Fraley)

Respondent.

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 Reply Brief in Support of

Petition for Writ of Certiorari was mailed

to this Court on the 27-day of May, 1988,

within the permitted time to file said

Reply, 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

12

levada Attorney General's Office, Carson,

" : : t f (eo)

DATED this 27" aay of May, 1988.

chen 2. x ranete, Sp

JOHN J7GRAVES,

/ OC)

- mol.

ws

7

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SUBSCRIBED AND SWORN to before me

STlAayv o vy 22

this ./7/*day of May, 1986.

/ j

=. hice a er eZee

NOTARY PUBLTC in and for

Clark County, State of Nevada.

~ ~ OP

TWERESA J. COLE

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FFICIAL SEAL §

AOTARY PUBLIC-NEVADA

: ARK COUNTY

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