# Reply Brief — Blanton v. North Las Vegas

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1428%3A05

## Record

- **Collection:** Supreme Court brief
- **Document type:** Reply Brief
- **Published:** January 1, 1989
- **Citation:** 489 U.S. 538

## Text

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

oo
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

Q
?
FFICIAL SEAL §

AOTARY PUBLIC-NEVADA

: ARK COUNTY
eee ‘au Sana niment fxpire us ] 1990 ‘
\\ ——— . moss

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1428%3A05. Public record. Not legal advice.