Joint Appendix — Blanton v. North Las Vegas

Supreme Court brief1989

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MELVIN R. BLANTON,

MARK D. FRALEY,

Petitioners,

vs.

CITY OF NORTH LAS VEGAS,

NEVADA

Pespondent.

+

On Writ of Certiorari to the Supreme Court

of the State of Nevada

+

JOINT APPENDIX

Graves, Leavitt & Kocn Crry or Nortnu Las Vecas

Joun J. Graves, Jr., Eso. Roy A. Woorter, Eso.

601 South Sixth Street Nortn Las Vecas

Las , Nevada 89101 Crry ATTORNEY

(702) 385-7277 Mark et aay mn Esa.

ui Deputy Crry ATTORNEY

a — 2200 Civic Center Drive

North Las V , NE 89030

> Se Esq. (702) 649-02

#633 City of North Leo Vega

Las Vegas, Nevada 89106 ““#¥ Of egas

(702) 3155 ATToRNEY GENERAL

Coun for Pettiner _ Sat Maloam Compl

Mark D. Fraley =

(702) 3420

Petition ror Wart or CerTiorari Ficep Fesruary 26, 1988

Certiorari! GRANTED JUNE 20, 1988

COCROR CALL COLLET ai) 3281

i

TABLE OF CONTENTS

Page

Municipal Court Relevant Docket Entries .......... 1

District Court Relevant Docket Entries............. 2

Supreme Court Relevant Docket Entries ........... 4

Municipal Court Demand for Jury Trial (Blanton)... .. 6

Motion to Strike Demand for Jury Trial (Blanton)..... 7

Municipal Court Demand for Jury Trial (Fraley)... 11

Petition for Writ of Mandamus (Blanton) .......... 13

Notice of Appeal to District Court (Fraley) ........ 16

Answer to Petition for Writ of Mandamus......... 18

Decision and Order (Blanton)................-..++. 20

Notice of Appeal to Nevada Supreme Court (Blanton) -

District Court Demand for Jury Trial (Fraley) ...... 23

Decision and Order (Fraley) ..............-.+60005. 25

Petition for Writ of Certiorari to Nevada Supreme

Se Rccccccscnceccendssocosscccscocccececccecoes 28

Appellant’s Opening Brief (Blanton) ............... 53

Answer to Petition for Writ of Certiorari (Fraley).. 65

Respondent’s Answering Brief..................... 73

Appellant’s Reply Brief (Blanton).................. 97

Writ of Certiorari (Fraley) .................00000005 100

Writ of Certiorari Granted (Blanton)............... 102

Writ of Certiorari Granted (Fraley) ................ 103

CITY OF NORTH LAS VEGAS MUNICIPAL COURT

RELEVANT DOCKET ENTRIES

DEFENDANT: BLANTON, Melvin Ray

DOCKET/CASE NO. M2648-86

CHARGE: Driving Under the Influence of Alcohol

DATE PROCEEDING

08/19/86 Defendant pled not guilty;

Attorney appeared

06/21/88 Continued City Attorney for

Status Check to 12/15/88

DEFENDANT: FRALEY, Mark D.

DOCKET/CASE NO. M2408-86

CHARGE: Driving Under the Influence of Alcohol

DATE PROCEEDING

07/15/86 Defendant Pled Not Guilty

10/28/86 Defense Motion for Jury Trial

10/28/86 Defense Motion for Jury Trial Denied

10/29/86 prvee lea of guilty; fined $300.;

as Verdes; Sentenced 5

5 days (credit)

10/29/86 aie, receivable $25.00 (O.R. on

, appeal per Judge Gary Davis); bond

exonerated

11/04/86 Appeal filed

2

EIGHTH JUDICIAL DISTRICT COURT

CLARK COUNTY, STATE OF NEVADA

RELEVANT DOCKET ENTRIES

DEFENDANT: BLANTON, Melvin R.

DOCKET/CASE NO. A252811

DATE

12/30/86

PROCEEDING

SET BRIEFING SCHEDULE. Peti-

tioner represented by counsel, John J.

Graves, Jr. Respondents represented by

counsel, DCA, Mark Zalaoras. Counsel

submitted the matter on the Briefs.

COURT ORDERED, under

advisement.

DEFENDANT: FRALEY, Mark D.

DOCKET/CASE NO. C76512

DATE

12/12/86

01/30/87

01/22/88

PROCEEDING

ARRAIGNMENT. a of North

Las Vegas represented by Mark

represen at

Esa. ms mpsmentad by Je a not gu guilty

plea. Mad sequested 0 jury tstal ehic

was denied.

DEFENDANT’S MOTION TO DIS-

MISS. COURT ORDERED, previous

order for continuance vacated and the

Court having found jury demand was

made in proper time, ORDERED,

matter

remanded to City of North Las Vegas

for jury trial.

AT REQUEST OF COURT. Court

received an Order from the Supreme

Court d this Court to vacate

revious Sentence. COURT

RDERED, matter continued two

03/11/88

3

weeks, aes See 6 cogeee © Seay

Order from the Supreme

STATUS CHECK. Court received Stay

Order from Su Court, indicating

Mr. Watkins has filed Writ of Certiorari

with United States Supreme Court,

COURT ORDERED, continued six

months for status check.

4

SUPREME COURT OF THE STATE OF NEVADA

RELEVANT DOCKET ENTRIES

DEFENDANT: BLANTON, Melvin R.

DOCKET/CASE NO. 17940

DATE

02/25/87

05/26/87

06/22/87

07 /24/87

09/02/87

09/18/87

12/31/87

PROCEEDINGS

Filing RECORD ON APPEAL

(original).

ORAL ARGUMENT is set for

09/18/87 at 8:15 a.m. - 1 hour - Car-

son City.

Filing APPELLANT’S OPENING

BRIEF

Filing RESPONDENT’S ANSWER-

ING BRIEF

Filing APPELLANT’S REPLY BRIEF

ORAL ARGUMENT; Submitted.

Filing OPINION - “Affirm Docket No.

17940

DEFENDANT: FRALEY, Mark D.

DOCKET/CASE NO. 18065

DATE

04/13/87

04/27/87

05/20/87

PROCEEDING

Filing PETITION FOR WRIT OF

CERTIORARI.

Filing SUPPLEMENT OF RECORD

BELOW TO PETITION FOR WRIT

OF CERTIORARI.

Filing ORDER we consolidate these

cases for the purpose of oral argument

an No. 18065. We stay further

eye against real partyin inter-

aley in North Vegas

Municipal 7 Case No. M-2408.86,

05/26/87

07/01/87

09/18/87

12/31/87

12/31/87

5

ing our decision upon the merits

of the petitions.

ORAL ARGUMENT is set for

09/18/87 at 8:15 a.m. - 1 hour — Car-

son City.

Filing ANSWER TO PETITION FOR

A WRIT OF CERTIORARI.

ORAL ARGUMENT; Submitted.

rom OPINION - grant petition No.

Issuing WRIT OF CERTIORARI

NORTH LAS VEGAS MUNICIPAL COURT

CLARK COUNTY, NEVADA

THE CITY OF

NORTH LAS VEGAS,

Plaintiff,

Case No. M2648-86

DEMAND FOR

vs. JURY TRIAL

MELVIN RAY BLANTON,

(Filed October 3, 1986)

Defendant.

Oe Oe ee eee ee

COMES NOW, Defendant, MELVIN RAY BLANTON,

by and through his attorney, JOHN J. GRAVES, JR., ESQ.,

and makes Demand for a Jury Trial on the within charge

of Driving Under the Influence pursuant to the Sixth

Amendment to the United States Constitution, and pur-

suant to the federal District Court Case of Bronson v.

Swinney, CV-R-86-130, ECR, ordering a Jury Trial in Driv-

ing Under the Influence cases in the State of Nevada.

DATED: this 3rd day of October, 1986.

GRAVES, LEAVITT, CAWLEY & KOCH

/s/ John J. Graves, Jr.

JOHN J. GRAVES, JR., ESQ.

Attorney for Defendant

601 South Sixth Street

Las Vegas, Nevada 89101

CERTIFICATE OF SERVICE BY MAIL

I hereby certify and affirm that on the 3rd day of

October, 1986, | deposited for mailing a copy of the

foregoing DEMAND FOR JURY TRIAL with postage fully

prepaid thereon addressed to the following:

North Las Vegas City Attorney’s Office

1928 N. Bruce

North Las Vegas, Nevada 89030

™ i a eae

7

/s/

An employee of

JOHN J. GRAVES, JR., ESQ.

NORTH LAS VEGAS MUNICIPAL COURT

CLARK COUNTY, NEVADA

MELVIN RAY BLANTON,

Defendant.

THE CITY OF

NORTH LAS VEGAS, ) Case No. M-2648-86

— } MOTION TO STRIKE

vs. } DEMAND FOR

) JURY TRIAL

)

COMES NOW the CITY OF NORTH LAS VEGAS, by

and through its attorney, ROY A. WOOFTER, City Attor-

ney, by MARK L. ZALAORAS, Deputy City Attorney, and

moves this Court to strike the demand for jury trial filed

by the Defendant on Friday, October 3, 1986. This Motion

is made and based upon the following Points and

Authorities.

DATED this 9th day of October, 1986.

ROY A. WOOFTER, CITY ATTORNEY

CITY OF NORTH LAS VEGAS

By /s/ Mark L. Zalaoras

MARK L. ZALAORAS

oy City Attorne

1301 East Lake Mea

North Las Vegas, NV 89030

Attorney for Plaintiff

POINTS AND AUTHORITIES

A. FACTS

The Defendant is charged pursuant to NRS 484.379

with Driving Under the Influence of Alcohol on July 18,

1986, at 9:10 p.m. in the 3500 block of East Lake Mead

Boulevard, which is in the City of North Las Vegas.

The Defendant has filed a demand for jury trial

based upon the Sixth Amendment to the United Stat-s

Constitution and a federal district court decision

announced last week in Reno, Nevada. The City Attor-

ney’s office has been apprised of the demand by virtue of

the Municipal Court Clerk’s Office supplying my office

with a copy of the demand. Even though the City Attor-

ney’s office is immediately adjacent to the Court, Defen-

dant has not provided for a receipt of copy to my office.

He has however attached to his Demand a certificate of

mailing specifying that a copy was mailed to this office.

The Demand for Jury Trial was filed October 3rd at

2:12 p.m. The trial date is scheduled for October 15, 1986

at 1:30 p.m.

B. ARGUMENT

The Defendant is not entitled to a jury trial for a

misdemeanor DUI prosecution where the maximum

authorized penalty is six (6) months in jail or less. In State

v. Smith, 99 Nev. 806 (1983), the Nevada Supreme Court

stated:

“Persons are guaranteed the right to a jury trial

by both art. I, section 3 of the Nevada Constitution,

and the sixth amendment to the United States Consti-

tution. Despite apparently significant differences in

the language of these constitutional provisions, both

a are

9

provisions have been interpreted to guarar.tee the

right to a jury trial in a criminal matter only as it

existed at common law. Thus, there is no constitu-

tional right to trial by jury for “petty” offenses. See

Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444

(1968); State v. Ruthe, 24 Nev. 251, 52 P. 274 (1898).

Whether there is a constitutional right to a trial by

jury therefore turns upon whether the offense

charged is characterized as “serious” or “petty.” See

Duncan v. Louisiana, 391 U.S. at 159. In turn, the

principal criterion used in characterizing an offense

as “petty” or “serious” is the severity of the maxi-

mum authorized penalty. See Baldwin v. New York,

399 U.S. 66, 90 S. Ct. 1886 (1969); Bloom v. Illinois,

391 U.S. 194, 211, 88 S.Ct. 1477 (1968).

In recent decisions, the United States Supreme

Court has increasingly relied upon the objective crite-

rion of the maximum possible penalty in deciding

whether to characterize an offense as “petty” or

“serious”. See Taylor v. Hayes, 418 U.S. 488, 94 S.Ct.

2697 (1974); Codispoti v. Pennsylvania, 418 U.S. 506,

94S. Ct. 2687. Using this criterion, the Court has held

that where the maximum passible penalty is six

months imprisonment or less, the offense is “petty,”

and the right to trial by jury does not attach. See

Codispoti v. Pennsylvania, 418 U.S. at 512.

At the time of the alleged offense, the maximum

punishment for a first-time DUI conviction in Nev-

ada under NRS 484.379 was six months imprison-

ment or a fine of up to $1,000.00. As the potential

maximum term of imprisonment is six months, it

would appear that respondent Smith’s offense was

“petty” within the Supreme Court’s definition, and

that there is thus no constitutional right to trial by

jury in his DUI prosecution.

Accordingly, we look to the criterion expressly

established by the United States Supreme Court:

where the maximum possible penalty is six months

imprisonment or less, the offense is “petty” and the

10

right to trial by jury does not attach. As NRS 48. 379

provides a penalty of up to six months imprisonment

for a first-time DUI offense, there is no constitutional

right to a trial by jury. The district court thus erred in

granting the writ of mandamus to compel the jus-

tice’s court to grant respe-dent a jury trial in his

pending DUI prosecution.” id. at page 809-810.

See also Exhibit A attached hereto, which is a 1975

unpublished federal district court decision denying a jury

trial for a misdemeanor prosecution. In the attached opin-

ion, there is a lengthy and well documented legal history

for not permitting jury trials for misdemeanor DUI

prosecutions.

Respectfully submitted,

ROY A. WOOFTER, CITY ATTORNEY

City of North Las Vegas

By MARK L. ZALAORAS

Deputy City Attorne

1301 East Lake Mea

North Las Vegas, NV 89030

Attorney for Plaintiff

RECEIPT OF COPY

RECEIPT OF COPY of MOTION TO STRIKE

DEMAND FOR JURY TRIAL is hereby acknowledged this

__. day of October, 1986.

GRAVES, LEAVITT, CAWLEY & KOCH

By

601 South Sixth Street

Las Vegas, Nevada 89101

Attorneys for Defendant

11

CASE NO. __

DEPT. NO. __

IN THE MUNICIPAL COURT OF

THE CITY OF NORTH LAS VEGAS

COUNTY OF CLARK, STATE OF NEVADA

THE CITY OF NORTH )

LAS VEGAS, NEVADA,

Plaintiff, DEMAND FOR

JURY TRIAL

vs.

MARK D. FRALEY,

Defendant.

— es es ee ee ee

COMES NOW, Defendant, MARK D. FRALEY, by

and through his attorney JOHN G. WATKINS, ESQ. and

requests an Order pursuant to Article I, Section 3 of the

Nevada Constitution and the Sixth Amendment of the

United States Constitution directing that the instant case

be tried by jury.

This Motion is made and based upon the Points and

Authorities filed herewith and all testimony as may be

adduced at the hearing of this Motion.

DATED this 28th day of October, 1986.

/s/ John G. Watkins

JOHN G. WATKINS, ESQ.

Attorney for Defendant

333 N. Rancho Dr., #633

Las Vegas, Nevada 89106

12

POINTS AND AUTHORITIES

NRS 266.565 provides,

“The practice and proceedings in the municipal

court shall conform, as nearly as practicable, to

the practice and proceedings of justices’ courts in

similar cases, except that an appeal perfected trans-

fers the action to the district court for trial anew. The

municipal court shall be treated and considered

as a justices’ court whenever the proceedings

thereof are called into question.”

Nevada Constitution, Article I, Section 3 mandates,

“The right of trial by Jury shall be secured to all

and remain inviolate forever . . . ” (Emphasis

Added)

The United States Constitution, the Sixth Amendment

holds,

“In all criminal prosecutions, the accused shall

enjoy the = to a speedy trial, by an impartial

jury of the State and district wherein the crime

shall have been committed, which district shall

have been previously ascertained by law... ”

(Emphasis Added).

Cf., State v. Smith, 99 Adv. Op. 172 (1983) (State v. Smith, is

inapplicable for now jail time is mandatory unlike the

situation and state of the law at the time of State v. Smith,

supra.) See also Bronson v. Swinney, et. al, #CV-R-86-130-

ECR (Dist. Ct. of Nev., 10/1/86) where the court held that

a defendant is constitutionally entitled to a jury trial in

D.U.I. misdemeanor cases.

Respectfully submitted,

/s/ John G. Watkins

JOHN G. WATKINS, ESQ.

13

Attorney for Defendant

333 N. Rancho Dr., #633

Las Vegas, Nevada 89106

RECEIPT OF COPY

RECEIPT OF A COPY of the above and foregoing

DEMAND FOR JURY TRIAL is hereby acknowledged this

__. day of October, 1986.

North Las Vegas

City Attorney’s Office

By:

DISTRICT COURT

CLARK COUNTY, NEVADA

MELVIN RAY BLANTON, a

Petitioner, ) CASE NO.

as ‘ A251117

THE NORTH LAS VEGAS ) DEPT. NO. IV

MUNICIPAL COURT, NORTH LAS ?

VEGAS, NEVADA AND THE PETITION FOR

(Real Party in Interest)

)

HONORABLE GARY DAVIS, ) WRIT OF

MUNICIPAL JUDGE THEREOF, . MANDAMUS

Respondents. )

CITY OF NORTH LAS VEGAS, ) Filed November

NEVADA, 3, 1986)

)

)

TO: The Honorable GARY DAVIS, Municipal Judge of

the North Las Vegas Municipal Court, North Las

Vegas, Nevada

14

TO: The Honorable ROY WOOFTER, North Las Vegas

City Attorney

TO: The Honorable D. BRIAN McKAY, Attorney Gen-

eral, State of Nevada

GREETINGS

The Petition of Melvin Ray Blanton by and through

his attorney JOHN J. GRAVES, JR., ESQ., respectfully

shows:

1. That the Petitioner makes application herein for a

Writ of Mandamus (N.R.S. 34.150, et.seq.) to Order the

North Las Vegas Municipal Court to grant a Jury Trial to

your Petitioner on his driving under the influence charge

pursuant to the Sixth Amendment to the United States

Constitution.

2. No plain, speedy, or adequate remedy exists in

law for your Petitioner other than by extraordinary Writ

of this Court.

3. The Municipal Court Judge abused his discretion

in denying Petitioner a Jury Trial on or about October 3,

1986, and should be compelled by this Court to exercise

his duty, not his discretion, to Order said Jury Trial.

4. An indefinite Stay has been entered by the North

Las Vegas Municipal Judge pending proceeding before

this Court.

5. Petitioner requests that the City of North Las

Vegas, Nevada, by and through its attorney, the North

Las Vegas City Attorney, be Ordered to Answer the Peti-

tion herein, and to file Points and Authorities in answer

to Petitioner’s and to grant Petitioner a time to Reply.

15

6. Petitioner expressly brings this Petition to the

Court solely on federal constitution issues, pursuant to

the 1985 State of Nevada driving under the influence

statute (N.R.S. 484.379, et seq.)

7. That no other Petition for Extraordinary Relief or

appeal has heretofore been filed on behalf of said Peti-

tioner on this particular issue.

WHEREFORE, Petitioner prays that this Honorable

Court Order the North Las Vegas Municipal Court to

grant Petitioner’s Demand for Jury Trial.

GRAVES, LEAVITT & KOCH

/s/ John J. Graves, Jr.

Joun J. Graves, Jr., Esa.

Attorney for Petitioner

601 South Sixth Street

Las Vegas, Nevada 89101

STATE OF NEVADA )

Ss:

COUNTY OF CLARK )

MELVIN R. BLANTON, being first duly sworn upon

his oath, deposes and says:

That he is the Petitioner in the above-entitled matter;

that he has read the above and foregoing PETITION and

knows the contents thereof to be true of his own knowl-

edge except for those matters therein stated upon infor-

mation and belief and as to those matters, he believes

them to be true.

16

/s/ Melvin R. Blanton

MELVIN R. BLANTON

SUBSCRIBED and SWORN to before me

this 30th day of October, 1986.

/s/ Beverley J. Jones

NOTARY PUBLIC in and for said

County and State.

CASE NO. M2408-86

IN THE MUNICIPAL COURT OF

THE CITY OF NORTH LAS VEGAS

COUNTY OF CLARK, STATE OF NEVADA

THE CITY OF NORTH )

LAS VEGAS, NEVADA,

)

inti NOTICE OF

Plaintiff, . APPEAL

vs.

MARK D. FRALEY ) (Filed November 4, 1986)

Defendant. )

TO: THE HONORABLE JUDGE OF THE MUNICIPAL

COURT OF THE CITY OF NORTH LAS VEGAS,

COUNTY OF CLARK, STATE OF NEVADA, and

TO: THE CITY ATTORNEY FOR THE CITY OF NORTH

LAS VEGAS, NEVADA.

YOU, AND EACH OF YOU WILL PLEASE TAKE

NOTICE that MARK FRALEY, the Defendant in the

above-entitled action, does hereby appeal to the Eighth

Judicial District Court of the State of Nevada, in and for

the County of Clark, from the judgment of the above- |

17

entitled Court, finding the Defendant guilty of violating

DRIVING UNDER THE INFLUENCE OF ALCOHOL and

from sentence of said Court, being fined $300.00 and/or 0

days.

This Appeal is taken from questions of both law and

fact.

DATED at Las Vegas, Nevada, this 3rd day of Nov.,

1986.

/s/ John G. Watkins

JOHN G. WATKINS, ESQ.

Attorney for Defendant

333 N. Rancho Dr., #633

Las Vegas, Nevada 89106

RECEIPT OF COPY

RECEIPT OF COPY of the above and foregoing

NOTICE OF APPEAL is hereby acknowledged this 4th

day of November, 1986.

NORTH LAS VEGAS, CITY

ATTORNEY’S OFFICE

By: /s/ Mark L. Zalaoras

Deputy City Attorney

18

DISTRICT COURT

CLARK COUNTY, NEVADA

MELVIN RAY BLANTON, ) CASE NO.

Petitioner, ) 252811

em ) DEPT. NO. VIII

THE NORTH LAS VEGAS ) R. i

MUNICIPAL COURT, NORTH LAS ? wane On

VEGAS, NEVADA AND THE ) MANDAMUS

HONORABLE GARY DAVIS, )

MUNICIPAL JUDGE THEREOF, Date of Hearing:

Respondents. 12/30/86

CITY OF NORTH LAS VEGAS, )_ Time of Tiearing:

NEVADA, ) 9:00 AM.

(Real Party in Interest) . oan Sate

COMES NOW the Respondents, NORTH LAS

VEGAS MUNICIPAL COURT; THE HONORABLE GARY

DAVIS, JUDGE THEREOF; and the CITY OF NORTH LAS

VEGAS, NEVADA, by and through their attorney, ROY

A. WOOFTER, City Attorney, by and through MARK L.

ZALAORAS, Deputy City Attorney, and for their Answer

to the Petition for Writ of Mandamas respectfully admit,

deny and allege as follows:

1. Respondents admit all of the allegations con-

tained in Paragraph One of the Petition.

2. Respondents deny each and every allegation con-

tained in Paragraph Two of the Petition.

3. Respondents deny each and every allegation con-

tained in Paragraph Three of the Petition.

4. Respondents admit each and every allegation

contained in Paragraph Four of the Petition.

19

5. Respondents admit all of the allegations con-

tained in Paragraph Five of the Petition.

6. Respondents admit all of the allegations con-

tained in Paragraph Six of the Petition.

7. Respondents are without sufficient knowledge

and information so as to form a belief as to the truth of

the allegations contained in Paragraph Seven of the Peti-

tion, and therefore deny the same on that basis.

WHEREFORE, Respondents pray that this Honorable

Court deny the Petition and that Petitioner take nothing

by virtue of his application for a Writ of Mandamus.

Respectfully submitted,

ROY A. WOOFTER, CITY ATTORNEY

CITY OF NORTH LAS VEGAS

By: /s/ Mark L. Zalaoras

MARK L. ZALAORAS

Deputy City Attorney

1301 East Lake Mead

North Las Vegas, Nevada 89030

Attorney for Respondents

STATE OF NEVADA )

ss:

COUNTY OF CLARK )

MARK L. ZALAORAS, being first duly sworn,

deposes and says:

That he is the attorney for the Respondents in the

above-entitled action; that he has read the foregoing

20

ANSWER TO PETITION FOR WRIT OF MANDAMUS

and knows the contents thereof; that the same is true of

his own knowledge, except for those matters therein con-

tained stated upon information and belief, and as to those

matters he believes it to be true.

/s/ Mark L. Zalaoras

MARK L. ZALAORAS

SUBSCRIBED and SWORN to before

me this 30th day of December, 1986.

/s/ Nancy Ralston

NOTARY PUBLIC

DISTRICT COURT

CLARK COUNTY, NEVADA

MELVIN R. BLANTON,

)

18 ) CASE NO.

Petitioner, ) 252811

vs. )

THE NORTH LAS bg i ; DEPT. NO. VIII

MUNICIPAL COURT, NOR oe

VEGAS, NEVADA AND THE ) DOCKET “M

HONORABLE GARY DAVIS, ) parsers

MUNICIPAL JUDGE THEREOF, ) 07 ~Spner

Respondents. '

CITY OF NORTH LAS VEGAS, ) (Filed January

NEVADA, 14, 1987)

(Real Party in Interest)

The Petitioner seeks Mandamus to compel the North

Las Vegas Municipal Court to grant Petitioner a jury trial

on a misdemeanor charge of Driving Under the Influence

of Alcohol.

21

Petitioner relies on the recent case of Bronson v. Swin-

ney, decided September 29, 1986, in the United States

District Court, District of Nevada CV-R-86-130-ECR.

Notwithstanding the holding in that case, this Court

finds that the decision in State v. Smith, 99 Nev. 806 (1983)

is dispositive of the issue.

The petition for the Writ of Mandamus is denied.

IT IS SO ORDERED.

DATED this 14th day of January, 1987.

/s/ Michael Wendell

DISTRICT JUDGE

DISTRICT COURT

CLARK COUNTY, NEVADA

MELVIN R. BLANTON, a

Petitioner, ‘ CASE NO.

re ) 252811

THE NORTH LAS VEGAS ) DEPT. NO. VIII

MUNICIPAL COURT, NORTH LAS )

VEGAS, NEVADA AND THE

HONORABLE GARY DAVIS,

MUNICIPAL JUDGE THEREOF,

Respondents.

CITY OF NORTH LAS VEGAS,

NEVADA,

(Real Party in Interest)

NOTICE

OF APPEAL

(Filed January

27, 1987)

ee eee ee ee oe

TO: THE HONORABLE GARY DAVIS, JUDGE, NORTH

LAS VEGAS MUNICIPAL COURT;

22

TO: CITY OF NORTH LAS VEGAS, NEVADA:

NOTICE IS HEREBY GIVEN that Petitioner/ Appel-

lant, MELVIN R. BLANTON, by and through his attorney

of record, JOHN J. GRAVES, JR., ESQ., appeals the

“Decision and Order” of the District Court dated and

filed January 14, 1987, denying his Petition for Writ of

Mandamus requesting a jury trial on Blanton’s misde-

meanor charge of driving under the influence of intox-

icating liquor (first offense), to the Nevada Supreme

Court.

DATED this 16th day of January, 1987.

GRAVES, LEAVITT & KOCH

/s/ John J. Graves, Jr.

JOHN J. GRAVES, JR., ESQ.

Attorney for

601 South Sixth Street

Las Vegas, Nevada 89101

CERTIFICATE OF MAILING

I hereby certify that on the 16th day of January, 1987,

I served the foregoing NOTICE OF APPEAL on the fol-

lowing attorney by depositing copies of same in sealed

envelopes in the United States Mail, postage fully pre-

paid, addressed as follows:

ROY A. WOOFTER, ESQ.

North Las Vegas City Attorney

2200 Civic Center Drive

North Las Vegas, Nevada 89030

D. BRIAN MCKAY, ESQ.

Attorney General

Capitol Complex

Carson City, Nevada 89710

23

/s/ Honorine E. Fugitt

Honorine E. Fugitt, - employee of

GRAVES, LEAVITT & KOCH

DISTRICT COURT

CLARK COUNTY, NEVADA

THE STATE OF NEVADA, _)

Appellant, Case No. C 76512

Dept. No. .

Docket No.

vs.

MARK D. FRALEY,

Respondent.

— i Se

DEMAND FOR JURY TRIAL

Hearing Date:

Hearing Time:

(Filed January 29, 1987)

COM¢cS NOW, Defendant, MARK D. FRALEY, by and

through his attorney JOHN G. WATKINS, ESQ. and

requests an Order pursuant to Article I, Section 3 of the

Nevada Constitution and the Sixth Amendment of the

United States Constitution directing that the instant case

be tried by jury.

This Motion is made and based.upon the Points and

Authorities filed herewith and all testimony as may be

adduced at the hearing of this Motion.

DATED this 29th day of January, 1987.

/s/ John G. Watkins

Joun G. Warkins, Esa.

Attorney for Defendant

333 N. Rancho Dr., #633

Las Vegas, Nevada 89106

24

POINTS AND AUTHORITIES

Nevada Constitution, Article I, Section 3 mandates,

“The right of trial by Jury shall be secured to all and

remain inviolate forever . . . ” (Emphasis Added)

The United States Constitution, the Sixth Amendment

holds,

“In all criminal prosecutions, the accused shail enjoy

the right to a = trial, by an impartial jury of the

State aad district wherein the crime shall have been

committed, which district shall have been previously

ascertained by law . . . ” (Emphasis Added).

Cf., State v. Smith, 99 Adv. Op. 172 (1983) (State v. Smith, is

inapplicable for now jail time is mandatory unlike the

situation and state of the law at the time of State v. Smith,

supra.) See also Bronson v. Swinney, et. al., #CV-R-86-130-

ECR (Dist. Ct. of Nev., 10/1/86) where the court held that

a defendant is constitutionally entitled to a jury trial in

D.U.I. misdemeanor cases.

Respectfully submitted,

/s/ John G. Watkins

JOHN G. WATKINS, ESQ.

Attorney for Defendant

333 N. Rancho Dr., #633

Las Vegas, Nevada 89106

25

RECEIPT OF COPY

RECEIPT OF A COPY of the above and foregoing

DEMAND FOR JURY TRIAL is hereby acknowledged this

29th day of Janvary, 1987.

ROY A WOOFTER, CITY ATTORNEY

CITY OF NORTH LAS VEGAS

By: /s/ Mark L. Zalaoras

Mark L. Zalaoras

Deputy City Attorney

DISTRICT COURT

CLARK COUNTY, NEVADA

MARK D. FRALEY, )

Appellant, Case No. C 76512

VS. ) Devt. No. XI

CITY OF NORTH LAS vEeGas, ) Pocket No.

Respondent. )

DECISION AND ORDER

(Filed February 13, 1987)

Appellant seeks relief in this Court through appeal

pursuant to NRS 266.595. He asserts that he was denied

his constitutional right to a jury trial by the municipal

court below.

The first issue to be decided is whether an individual

is constitutionally entitled to a jury trial for alleged viola-

tions under NRS 484.379, misdemeanor D.U.I. If the

answer is in the affirmative then a second issue arises.

26

Can NRS 266.550 be used to deny a constitutionally guar-

anteed right to trial by jury?

It must first be noted that Municipal courts are con-

stitutionally authorized and created by the legislature.

See Article 6, Section 1 of the Nevada Constitution. This

does not make them inferior but rather, once created,

they exist as a co-equal branch of local government and

are part of the constitutional judicial system of this state.

See City of North Las Vegas ex rel. Arndt v. Daines, 92 Nev.

292, 550 P. 2d 399 (1976). The functions of the municipal

court are as truly judicial in character as those of any

other court of this state. The constitutional umbrella of

protection extends to all courts of this state in exercising

their judicial functions. Id. at 295.

In Bronson v. Swinney, CV-R-86-130-ECR (10-1-86),

Federal District Judge Edward C. Reed held that individ-

uals are constitutionally entitled and guaranteed a trial

by jury when charged with a violation of NRS 484.379.

This Court agrees with Judge Reed’s analysis that these

offenses are indeed “serious” and finds his decision to be

“persuasive authority”. NRS 484.379 convictions require

mandatory jail (or performance of forty-eight hours of

community work wearing distinctive garb indicating that

the person has violated the D.U.I. law), automatic revoca-

tion of an individuals driving privilege for ninety days

and can be used to enhance punishment requiring man-

datory incarceration in the Nevada State Prison. State v.

Smith, 99 Nev. 806, 672 P. 2d 631 (1983) was a pre-1983

NRS 484.379 violation which did not require mandatory

jail or automatic revocation of the drivers license and is

therefore distinguishable.

27

This court believes that individuals such as Appel-

lant have a constitutional right to a jury trial. Further, any

statute which denies this right is unconstitutional.

GOOD CAUSE Appearing,

IT IS HEREBY ORDERED, ADJUDGED AND

DECREED that individuals charged with violations of

NRS 484.379 as amended in 1983 are constitutionally

entitled to a jury trial.

IT IS FURTHER OR VERED, ADJUDGED AND

DECREED that in so far as NRS 266.550 prevents or

denies jury trials for D.U.I. misdemeanor cases, it is

unconstitutional.

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED that the above entitled case is remanded to the

North Las Vegas Municipal Court for a jury trial on the

D.U.I. charge.

DATED this 12th day of February, 1987.

Myron E Leavitt

DISTRICT JUDGE

for Addeliar D. Guy

Submitted by:

/s/ John G. Watkins

JOHN G. WATKINS, ESQ.

Attorney for Appellant

333 N. Rancho Dr, #633

Las Vegas, Nevada 89106

28

CASE NO:

IN THE SUPREME COURT OF THE STATE OF NEVADA

CITY OF NORTH LAS VEGAS, NEVADA,

Petitioner,

vs.

ADDELIAR D. GUY, DISTRICT JUDGE,

EIGHTH JUDICIAL DISTRICT COURT

OF THE STATE OF NEVADA,

Respondent.

i ee ee eo oo

PETITION FOR WRIT OF CERTIORARI

(Filed April 13, 1987)

TO: THE HONORABLE JUSTICES OF THE SUPREME

COURT OF THE STATE OF NEVADA

STATE OF NEVADA )

) $s.

COUNTY OF CLARK )

MARK L. ZALAORAS, being first duly sworn,

deposes and says:

1. That he is an attorney duly licensed to practice law

in the State of Nevada and is a Deputy City Attorney for

the City of North Las Vegas, Nevada.

2. That he is the prosecuting attorney assigned by the

City Attorney for the City of North Las Vegas to pros-

ecute the Eighth Judicial District Court case number

C76512,which is a misdemeanor appeal before such Court

from the conviction of Mark D. Fraley for Driving Under

29

the Influence of Intoxicating Liquor entered on October

23, 1986 by the Homorable Gary Davis, Judge of the

Municipal Court for the City of North Las Vegas, Nevada,

3. That he has personal knowledge of the events

described herein based upon his position as prosecutor

for the original Municipal Court case as well as for the

appeal of the misdemeanor conviction.

4. That his Petition by affidavit is brought as an

application for a writ of certiorari pursuant to NRS 34.010

through NRS 34.140; that jurisdiction for issuance of such

a writ is based upon NRS 34.020(2) and (3) because

Respondent exceeded the jurisdiction of his office during

the exercise of judicial functions by entering an order

remanding the appeal to the North Las Vegas Municipal

Court without holding a trial de novo on appeal, and by

ruling that NRS 266.550 is unconstitutional as it denies

jury trials to persons charged with misdemeanor DUI

offenses. That there is no appeal from such order, nor

does Petitioner have any plain, speedy or adequate

remedy.

5. That Petitioner seeks review of the Decision and

Order entered on or about February 13, 1987 by the

Honorable Addeliar D. Guy in case number C76512 in the

Eighth Judicial District Court of the State of Nevada, a

copy of which is attached hereto as Exhibit “A”.

6. That good cause exists for review by this Court of

such order in that District Judge Guy granted a pretrial

motion by Appellant Mark Fraley which challenged the

Municipal Court conviction for failure to provide a jury

trial and remanded the case for a trial by jury; that such

action by Respondent exceeded his jurisdiction by not

30

conducting a new trial on the appeal as required for

appeals to district from municipal courts; that the order

by Respondent declared NRS 266.550 to be unconstitu-

tional as it denies jury trials to persons charged with

misdemeanor DUI offenses, whereas this Court in State v.

Smith, 99 Nev. 806 (1983) held that such persons are hot

entitled to trial by jury, and therefore the Respondent

further exceeded his jurisdiction by such order.

WHEREFORE, Affiant prays that a writ of certiorari

or other appropriate writ may be issued out of this Court

to the Judge of the Eighth Judicial District Court, Depart-

ment No. XI, the Honorable Addeliar D. Guy, command-

ing him to certify and return to this Court copies of all

motions, pleadings, findings, orders, rulings, judgments,

minute orders, and records on file, and Affiant further

seeks a stay of proceedings in both the Municipal Court

for the City of North Las Vegas and the Eighth Judicial

District Court of the State of Nevada pending final deter-

mination of this application, and ultimately for an order

from this Court commanding Respondent to make a

determination of the misdemeanor appeal filed by Appel-

lant Mark Fraley based upon a trial de novo before that

Court, and for such other and further relief as may be

proper in the premises.

ROY A. WOOFTER, CITY ATTORNEY

CITY OF NORTH LAS VEGAS

By /s/ MARK L. ZALAORAS

ARK L. ZALAORAS

Deputy City Attorney

Attorney for Petitioner

SUBSCRIBED and SWORN to before me

this 8th day of April, 1987.

/s/ Sarah Lee Johnson

Notary Public

31

STATEMENT OF THE ISSUES

I. Whether Respondent exceeded his jurisdictional

authority by reversing the conviction obtained in Munici-

pal Court and remanding the case to that Court for a new

trial by jury instead of deciding the misdemeanor appeal

on a trial de novo?

Il. Whether Respondent exceeded his authority by

ruling that NRS 266.550 is unconstitutional as it denies

persons charged with misdemeanor DUI offenses a jury

trial?

A. Whether the ruling in State v. Smith, 99 Nev.

806 (1983) is controlling authority on the jury trial issue

in view of the legislative amendments to NRS 484.379

since the Smith decision in 1983?

B. Whether a federal constitutional right to trial

by jury for misdemeanor DUI offenses should be recog-

nized by this Court in light of the Federal District Court

ruling by the Honorable Edward C. Reed in Bronson v.

Swinney?

REASONS WHY WRIT SHOULD ISSUE

Petitioner is w:thout any plain, speedy and adequate

remedy other than certiorari to rectify the action by

Respondent in remanding the case to Municipal Court

and ruling NRS 266.550 unconstitutional. Specifically,

NRS 34.020(3) mandates that the writ of certiorari be

granted by the Supreme Court upon application of a

municipality where a district court has passed upon the

constitutionality or validity of a statute or municipal

ordinance in a case prosecuted for the violation of such

statute or ordinance.

32

In addition, NRS 34.020(2) requires the writ to be

granted in all cases where an inferior tribunal during the

exercise of judicial functions exceeds its jurisdiction and

there is no appeal, nor any plain, speedy and adequate

remedy. In this case the City of North Las Vegas is

prohibited from taking a direct appeal to this Court by

the terms of Article 6, Section 6 of the Nevada Constitu-

tion, which declares that district courts shall have final

appellate jurisdiction in cases arising in inferior tribunals.

Therefore, a writ of certiorari is the proper device by

which Petitioner may have its grievance with Respondent

remedied.

There is a split of authority among the various

Departments of the Eighth Judicial District Court con-

cerning the jury trial issue for misdemeanor DUI prosecu-

tions. At least three other Departments, numbers VI, VII

and VIII, have ruled opposite from Respondent on this

issue and denied a jury trial request on appeal. A writ

must issue from this Court so that it can hear and deter-

mine the legal issue in order for the conflict among the

Departments of the Eighth Judicial District Court to be

resolved. Moreover, there are currently pending several

other cases before this Court regarding the same issue. To

the extent it may be practical, Petitioner asks that its case

be consolidated with those other matters.

33

POINTS AND AUTHORITIES

IN SUPPORT OF

PETITION FOR WRIT OF CERTIORARI

I.

RESPONDENT EXCEEDED HIS JURISDICTIONAL

AUTHORITY BY REVERSING THE MISDEMEANOR

CONVICTION AND REMANDING THE CASE TO

MUNICIPAL COURT FOR A JURY TRIAL

Upon conviction in a municipal court of this state, a

defendant has the right to appeal to the district court.

NRS 266.595, NRS 5.080 and NRS 189.010. Such appeal

takes the form of a trial de novo. NRS 266.565. But see

NRS 266.005 which renders Chapter 266 inapplicable to

charter cities. This trial on the appeal is before the bench

and without a jury. State v. Smith, 99 Nev.806 (1983). See

also Hudson v. City of Las Vegas, 81 Nev. 677 (1965), City of

Las Vegas v. O'Donnell, 100 Nev. 491 (1984) and NRS

266.550.

Once an appeal is taken from a misdemeanor convic-

tion, there is no provision in statutory or case !aw for the

district court hearing the appeal to reverse the judgment

of the municipal court and remand the case for a new

trial. Respondent herein acted without authority in so

doing and thereby exceeded his jurisdiction. The proper

procedure would have been for Respondent to enter his

judgment based upon a trial de novo.

In City of Las Vegas v. O'Donnell, 100 Nev. 491 (1984),

the district court remanded the misdemeanor appeal to

the municipal court for a new trial and was held to have

exceeded its jurisdiction by so doing. The City of Las

Vegas petitioned the Nevada Supreme Court for a writ of

certiorari, challenging the action of the district court.

34

“In the present petition, the City of Las Vegas

seeks a determination by this court that the district

court exceeded its jurisdiction in remanding the case

to the municipal court rather than holding a trial de

novo itself. The City also contends that the district

court erred in determining that the evidence of intox-

ilyzer tests should be suppressed at trial. We agree

with the City with respect to both contentions.

First, the district court was clearly without juris-

diction to remand the case to the municipal court for

a trial de novo. The district court was instead

required to hold a trial de novo to determine for itself

the question of Furniss’ guilt or innocence. See NRS

266.565, supra, note 1. Upon remand, the district court

shall conduct such a trial.” (Emphasis added). Id., at

page 493.

Hence, Respondent had no jurisdiction to vacate the

lower court judgment. Unlike a typical appellate court

process, the district court does not sit in a reviewing

court posture, determining whether any error of law was

committed by the lower court. Rather, the district court

on a misdemeanor appeal from a municipal court must

conduct a trial de novo. This Court must reverse the

order of remand by Respondent and direct that a trial de

novo be conducted at the district court level on appeal.

Il.

RESPONDENT EXCEEDED HIS AUTHORITY BY

RULING THAT NRS 266.550 UNCONSTITU-

TIONALLY DENIES A RIGHT TO TRIAL BY JURY

TO PERSONS ACCUSED OF MISDEMEANOR DUI

OFFENSES

Respondent entered a two-step ruling which declared

that: (1) there is a federal constitutional right to trial by

jury for a misdemeanor DUI charge under NRS 484.379

35

based upon the recent federal district court decision in

Bronson v. Swinney, CV-R-86130 ECR (October 1, 1986)

from the District of Nevada, opinion by the Honorable

Edward C. Reed; and (2) that a statute providing other-

wise is unconstitutional. See Exhibit “A” attached hereto,

page 2 of the Decision and Order, lines 4-21. Petitioner

submits that Respondent was in error in distinguishing

the opinion of this Court in State v. Smith, 99 Nev. 806

(1983), which holds to the contrary.

A. The ruling in State v. Smith, supra, is controlling

authority on the jury trial issue, even in light of the

legislative amendments to NRS 484.379 since 1983.

Respondent is required to follow the pronouncement

of this Court in State v. Smith, supra, which is controlling

authority upon Respondent on the DUI jury trial issue.

The accused, Mark Fraley, is not entitled to a jury trial for

a misdemeanor DUI offense where the maximum autho-

rized penalty is six (6) months in jail or less. In Smith,

supra, this Court stated:

“Persons are guaranteed the right to a jury trial

by both art I, section 3 of the Nevada Constitution,

and the sixth amendment to the United States Consti-

tution. Despite ys eege significant differences in

the language of these constitutional provisions, both

provisions have been interpreted to guarantee the

right to a jury trial in a criminal matter only as it

existed at common law. Thus, there is no constitu-

tional right to trial by jury for “petty” offenses. See

Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444

(1968); State v. Ruthe, 24 Nev. 251, 52 P. 274 (1898).

Whether there is a constitutional right to a trial by

jury therefor turns upon whether the offense charged

is characterized as “serious” or “petty.” See Duncan

36

v. Louisiana, 391 U.S. at 159. In turn, the principal

criterion used in characterizing an offense as “petty”

or “serious” is the severity of the maximum autho-

rized penalty. See Baldwin v. New York, 399 U.S. 66,

S.Ct. 1996 (1969); Bloom v. Illinois, 391 U.S. 194, 211,

88 S.Ct. 1477 (1968).

In recent decisions, the United States Supreme

Court has increasingly relied upon the objective crite-

rion of the maximum possible penalty in deciding

whether to characterize an offense as “petty” or

“serious”. See Taylor v. Hayes, 418 U.S. 488, 94 S.Ct.

2697 (1974); Codispoti v. Pennsylvania, 418 U.S. 506,

94 S. Ct. 2687. Using this criterion, the Court has held

that where the maximum possible penalty is six

months imprisonment or less, the offense is “petty,”

and the right to trial by jury does not attach. See

Codispoti v. Pennsylvania, 418 U.S. at 512.

At the time of the alleged offense, the maximum

punishment for a first-time DUI conviction in Nev-

ada under NRS 484.379 was six months imprison-

ment or a fine of up to $1,000.00. As the potential

maximum term of imprisonment is six months, it

would appear that respondent Smith’s offense was

“petty” within the Supreme Court's definition, and

that there is thus no constitutional right to trial by

jury in his DUI prosecution.

Accordingly, we look to the criterion expressly

established by the United States Supreme Court:

where the maximum possible penalty is six months

imprisonment or less, the offense is “petty” and the

right to trial by jury does not attach. As NRS 484.379

provides a penalty of up to six months imprisonment

for a first-time DUI offense, there is no constitutional

right to a trial by jury. The district court thus erred in

granting the writ of mandamus to compel the jus-

tice’s court to grant respondent a jury trial in his

pending DUI prosecution.” Id. at page 809-810.

37

The amendments to NRS 484.379 made in 1983 and

1985 did not change the maximum authorized penalty for

a misdemeanor DUI conviction. Those amendments did

change the minimum penalty. The 1983 Legislature

changed the minimum penalty from a fine of $100 and

mandatory counseling tu a $200 fine, mandatory counsel-

ing and either 2 days in jail or 48 hours of community

service for a first offense, and the person must wear

distinctive garb to identify himself as a DUI offender if

performing the latter. NRS 484.3792. The maximum pen-

alty for either a first or second DUI remains at six months

in jail and/or a $1,000 fine. NRS 484.3792. The 1983

Legislature also amended the driver’s license revocation

law by mandating a ninety day revocation for a first

offense DUI conviction and one year for a second offense.

NRS 483.460

The 1985 Legislature did not change any of the pen-

alty provisions for a misdemeanor DUI. It did increase

the maximum authorized penalty for a felony DUI from

six years to twenty years. NRS 484.3795.

It is clear from the above analysis that the holding in

State v. Smith, supra, remains viable even in light of the

amendments to the DUI law since the time of that deci-

sion. Therefore, Respondent exceeded his authority in

distinguishing that ruling as there is no right to a jury

trial for a misdemeanor DUI.

B. There is no federal constitutional right to trial by

jury for misdemeanor DUI offenses.

1. Decisions of federal courts are not automat-

ically binding upon state courts.

The powers of the federal judiciary are specified in

the Constitution of the United States and the statutes

38

enacted by the Congress of the United States. Article III,

Section 1 of the Constitution states that:

The judicial Power of the United States, shall be

vested in one supreme Court, and in such inferior

Courts as the Congress may from time to time ordain

and establish.

Section 2 of Article II further illuminates the issue by

noting that:

The judicial Power shall extend to all Cases, in Law

and Equity, arising under this Constitution, the Laws

of the United States, and Treaties made, or which

shall be made, under their Authority; . . .

It is clear from the above language that inferior fed-

eral courts were intended to have judicial power only

over specific cases and controversies involving federal

issues. They are not authorized to decide abstract matters

or to bind state courts except to the extent that a particu-

lar case or controversy arises from a state court. The

United States Code has not given any additional powers

to the federal courts, and maintains this case or contro-

versy limitation.

28 USC § 1331 - © he district courts shall have original

jurisdiction of all civil actions arising under the Con-

stitution, laws or treaties of the United States.

28 USC § 3231 - The district courts of the United

States shall have original jurisdiction, exclusive of

the States, of all offenses against the laws of the

United States.

Obviously the federal courts are limited in their juris-

diction to specific actions. This same limitation applies to

the highest court in the land, the Supreme Court. In one

of the earliest decisions of the Supreme Court, Article III

of the Constitution was interpreted to preclude any court

39

in the United States federal system from acting in an

advisory capacity or rendering decisions on general

issues, rather than on a case by case basis involving

actual controversies. Marbury v. Madison, 5 U.S. 137, 1

Cranch 137 (1803). However, because the Supreme Court

is the ultimate authority on federal questions and issues,

its decisions, while not binding except in a particular

case, are considered to be the most definitive statement of

the law which was at issue in that case and therefore

upon that specific federal question. (Most states also have

provisions of their state constitutions or statutes which

acknowledge the United States Supreme Court as the

controlling authority in the interpretation of federal

issues, see Article 1, Sec. 2. of the Nevada Constitution.)

While the reiteration of the above provisions of the

Federal Constitution and Statutes may seem to be super-

fluous, it is important that they be recognized since they

are the building blocks for the case law involving the

authority of a federal court to bind a state court. Too

often it is assumed that a federal court is directly supe-

rior to a state court, when in reality, the two systems are

distinct and separate from each other; the federal system

acts only as a method of checks and balances against

improper activity by state courts. The dichotomy between

the federal and state judicial systems is well recognized

in the State of Nevada. In Bargas v. Warden, 87 Nev 30, 482

P.2d 317 (1971), the Supreme Court of the State of Nevaua

noted that:

We are bound by the decisions of the United States

Supreme Court (Nevada Constitution, Article 1, Sec.

2.). We are not bound by the decisions of the other

federal courts, Bargas at 32.

40

Nevada is not alone in its view regarding the force

and effect of federal decisions. In People v. Luros, 480 P.2d

633, 92 Cal. Rptr. 833 (1971), the Supreme Court of Cali-

fornia in an en banc decision, rejected the interpretations

of several federal courts noting that the federal courts

were not “compelling authority” and citing to the Califor-

nia case most known for outlinging the division between

federal and state courts, In Re Whitehorn, 1 Cal. 3rd 504,

462 P.2d 361 (1969).

Similarly, the Supreme Court of Idaho, in State v.

Harmon, 685 P.2d 814 (1984) indicated that while it might

give deference to federal district court opinions, it was in

no way bound by them. Citing to the premiere federal

case in this area, United States ex. rel. Lawrence v. Woods,

432 F.2d 1072 (7th Cir. Ill.) cert. den. 402 U.S. 983 (1970),

the Idaho Court noted that federal district court rulings

do not bind state courts in unrelated cases.

Finally, in one of the most succinct statements of the

law in this area, the Court of Criminal Appeals of Okla-

homa, in Dean v. Crisp, 536 P.2d 961 (1975), stated that:

... The federal courts have no jurisdiction except in

those areas which are concerned with interpretation

of the United States Constitution. The inferior federal

courts exercise no appellate jurisdiction over state

tribunals. Therefore, decisions from these federal

courts are not conclusive on state courts. . . .The

decisions of the Federal Circuit Court of Appeals in

Lamb, supra, and Radcliff, supra, do not establish

binding precedent on this Court until the issue is

answered by the United States Supreme Court. The

inferior federal courts exercise their power only on a

case-to-case basis and can extend their power no

further. Dean at 963.

41

Of course the Court in Dean also noted that federal

case law is often persuasive and the Nevada Supreme

Court has also so indicated in Rahn v. Warden, 498 P.2d

1344 (1972), where the Nevada High Court acquiesced in

the decisions of the Ninth Circuit Court of Appeals.

In Bronson v. Swinney, supra, the authority relied

upon by Appellant below, Mark Fraley, to support his

argument for a jury trial, the Federal Court had before it

a Writ of Habeas Corpus arising out of a conviction for

DUI originating in the Justice’s Court for Reno. The

granting of the Writ and the Court’s Order for a jury trial

on remand are only binding upon the original Justice’s

Court, and only in that particular case. The federal order

is not binding upon a municipal or district court in the

instant situation. A court’s holding is always limited to

those issues which are necessary to decide the case. All

other commentary is dictum and not precedent. Since

Judge Reed’s minor reference to municipal courts was not

necessary to a resolution of the case, it would not be

binding.

Given the above case law, it is clear that neither the

North Las Vegas Municipal Court nor the District Court

are bound by the Bronson decision. Moreover, the State of

Nevada has not chosen to acquiesce to federal court

rulings in this area and the Respondent should not have

voluntarily taken notice of the Bronson ruling and granted

Appellant’s Motion.

2. First and second offense DUI violations are

“petty offenses” under federal constitutional

law and defendants are not entitled to trials

by jury.

A review of the United States Constitution and

Supreme Court case decisions is necessary for a complete

42

understanding of the issues involved with the DUI jury

trial question. Article III, Section 2, paragraph 3 of the

United States Constitution states that:

“The Trial of all Crimes, except in Cases of Impeach-

ment, shall be by Jury; .. .

This language was later supplemented by the Sixth

Amendment which provides that:

“In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial

jury. . .”

On its face, the Constitution would seem to impose

the right of trial by jury in all federal criminal cases,

bearing in mind that Article III deals only with the fed-

eral government and federal crimes. Despite this lan-

guage, however, the Supreme Court of the United States,

as the ultimate authority on the meaning of the Constitu-

tion, decided as early as 1888, in Callan v. Wilson, 127 U.S.

540, 8 S.Ct. 1301, that the language in the Constitution

must be viewed in light of the times in which it was

written. Thus the Supreme Court has consistently held

that the right to a jury trial was never intended to apply

to those crimes which were considered to be “petty

offenses” at common law. The Court has on numerous

occasions reiterated this distinction between “petty” and

“serious” offenses and has extended the concept to statu-

tory crimes. Cheff v. Schackenberg, 384 U.S. 373, 86 S.Ct.

1523 (1966); District of Columbia v. Clawans, 300 U.S. 617,

57 S.Ct. 660 (1937); Schick v. United States, 195 U.S. 65, 24

S.Ct. 826 (1904), Natal v. Louisiana, 139 U.S. 621, 11 S.Ct.

636 (1891).

o

43

In the landmark case of Duncan v. Louisiana, 391 U.S.

145, 88 S.Ct. 1444 (1968), when the Supreme Court held

that by virtue of the Fourteenth Amendment, the Sixth

Amendment right to trial by jury also applied to state

criminal proceedings, the High Court again restated its

position with regard to the limitations between “serious”

and “petty” offenses.

. . « It is doubtless true that there is a category of

petty crimes or offenses which is not subject to the

Amendment jury trial provision and should not

be subject to the Fourteenth Amendment jury trial

t here applied to the States .. . the penalty

authorized for a particular crime is of major rele-

vance in determining whether it is serious or not-

... The penalty authorized by the law of the locality

may be taken “as a gauge of its social and ethical

judgments,” . . . of the crime in question.

. .. So-called petty offenses were tried without juries

both in England and in the Colonies and have always

been exempt from the otherwise comprehensive lan-

guage of the Sixth Amendment's jury trial provi-

sions. There is no substantial evidence that the

Framers intended to depart from this established

commonlaw practice, and the possible consequences

to defendants from convictions for petty offenses

have been thought insufficient to outweigh the bene-

fits to efficient law enforcement and simplified judi-

cial administration resulting from the availability of

speedy and inexpensive nonjury adjudications. . . .In

the absence of an explicit constitutional provision,

the definitional task necessarily falls on the courts,

which must either pass on the validity of the legisla-

tive attempts to identify those petty offenses which

are exempt from jury trial, or where the legislature

has not addressed itself to the problem, themselves

face the questions in the first instance .. .

44

In determining whether the length of the authorized

prison term or the seriousness of other punishment is

enough in itself to require a jury trial, we are coun-

seled by District of Columbia v. Clawans, supra, to refer

to objective criteria, chiefly the existing laws and

practices in the Nation.

The Duncan Court then went on to note that both at

common law and in federal statutes, the dividing line

between “petty” and “serious” offenses was a maximum

jail sentence of six months. The Court also indicated, in

Footnote 35, that with the exception of criminal contempt

offenses, the relevant penalty to be considered was the

possible maximum sentence which could be imposed not

the actual sentence levied against the defendant.

Subsequent to Duncan, the Supreme Court has writ-

ten several decisions which clarify the manner in which a

crime is to be classified as “petty” or “serious” and

stresses that the amount of jail time which could be

imposed is to be considered the most important, almost

exclusive, factor in making such a determination. The

first of these cases is Frank v. United States, 395 U.S. 147,

89 S.Ct. 1503 (1969). Frank dealt with a criminal contempt

charge arising out of the violation of an administrative

ruling. The Court succinctly reviewed the steps a court

should take in deciding whether or not a jury trial is

warranted.

“In determining whether a particular offense can be

classified as ‘petty,’ this Court has sought objective

indications of the seriousness with which society

regards the offense. . . .The most relevant indication

of the seriousness of an offense is the severity of the

penalty authorized for its commission.

In ordinary criminal prosecutions, the severity of the

penalty authorized, not the penalty actually imposed,

45

is the relevant criterion. In such cases, the legislature

has included within the definition of the crime itself

a judgment about the seriousness of the offense.”

Frank also held that collateral consequences of a convic-

tion, if contemplated within the definition of “petty” by

the legislature, would not remove an offense from the

“petty” category. Thus the Court in Frank rejected the

claim that a three year sentence of probation made an

otherwise “petty” offense a “serious” one for purposes of

a jury trial and noted that:

“Probation is, of course, a significant infringement of

personal freedom, but it is certainly less onerous a

restraint than jail itself.”

The next major federal case dealing with jury trials is

Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886 (1970). In

Baldwin, the defendant was charged with a crime which

was punishable by up to one year imprisonment and

which by statute could not be tried by jury. It was in

Baldwin that the Supreme Court ‘established the outer

limit for the dividing line between “petty” and “serious”

crimes. Any offense which carried a penalty in excess of

six months in jail would be “serious”, those whose maxi-

mum jail time did not exceed six morths would be

“petty”. The Court made no mention of other factors,

such as the amount of the fine, except to briefly refer to

the $500.00 fine limit contained in the federal definition

of “petty” under 18 USC § 1. The majority of the opinion

centers around the issue of imprisonment and the need

for objective criteria to make a determination.

“... This near-uniform judgment of the Nation [that

any jail time over six months removes a crime from

the ‘petty’ offense category] furnishes us with the

only objective criterion by which a line could ever be

46

drawn-on the basis of the possible penalty alone-

between offenses that are and that are not regarded

as ‘serious’ for purposes of trial by jury.

Of necessity, the task of drawing a line ‘requires

attaching different consequences to events which,

when they lie near the line, actually differ very little.’

Duncan, supra, at 161, 20 L.Ed. 2d at 502. One who is

threatened with the possibility of imprisonment for

six months may find little difference between the

potential consequences that face him, and the conse-

quences that faced the appellant here. Indeed, the

prospect of imprisonment for however short a time

will seldom be viewed by the >ccused as a trivial or

‘petty’ matter and may well result in quite serious

re ions affecting his career and his reputation.

Where the accused cannot possibly face more than

six months’s imprisonment, we have held that these

disadvantages, onerous as they may be, may be out-

weighed by the benefits that result from speedy and

inexpensive non-jury adjudications.”

Baldwin clearly sets forth the type of “balancing” test the

Supreme Court recommends in all cases involving the

jury trial issue. However, lower courts and numerous

attorneys have taken Baldwin out of context. For example,

the national standards language of Baldwin has been

referred to by Judge Reed in Bronson and by the Ninth

Circuit in some opinions as supporting grounds for the

granting of jury trials in DUI cases. United States v.

Craner, 652 F.2d 461 (9th Cir. 1976). The reasoning stated

is that since the majority of states do grant a defendant a

jury trial for DUI offenses, then this is a reflection by the

“nation” that the offense is a serious one. While many

states do allow for jury trials in DUI cases, they also

allow jury trials in most misdemeanor cases, that is most

cases where the penalty does not exceed six months’ in

jail. Those states which still punish DUI by penalties

47

which do not exceed the six month standard still consider

the offense as “petty.” These states have not redefined

“petty”, instead they have simply determined that jury

trials should be granted in all crimes, petty or not, either

because their state constitutions require jury trials in all

criminal matters and are broader in scope than the fed-

eral constitution, or because state legislatures have

enacted statutes providing for jury trials in petty offense

cases. Nationally, the standard for defining a “petty”

offense still turns primarily around the maximum possi-

ble jail sentence and the six month rule. Codispoti Pennsyl-

vania, 418 U.S. 506, 94 S.Ct. 2687 (1974); Taylor v. Hayes,

418 U.S. 488, 94 S.Ct. 2687 (1974).

For some years after Duncan, the Supreme Court did

not rule on the relationship of fines to “petty” offense.

This changed with the rendering of the decision of the

Court in Muniz v. Hoffman, 422 U.S. 454, 95 S.Ct. 2178

(1975). The Court in Muniz noted that while the six

month guideline had been taken in part from the statu-

tory definition of a “petty offense” contained in 18 USC

§ 1(3) ($500.00 fine and/or six months imprisonment) this

did not mean that any fine which exceeded $500.00

would automatically cast the offense into the serious

category. Muniz involved a $10,000.00 fine which was

imposed against a labor union in a contempt type pro-

ceeding. The High Court did not set any outside fine

standard for jury puposes in Muniz, but it did indicate

that fines are, to some extent, at the bottom of the consid-

erations which are to be weighed.

“It is one thing to hold that deprivation of an indi-

vidual’s liberty beyond a six-month term should not

be imposed without the protections of a jury trial, but

48

it is quite another to suggest that, regardless of the

circumstances a jury is required where any fine

greater than $500 is contemplated. From the stand-

point of determining, the seriousness of the risk and

the extent of the possible deprivation faced by a

contemnor, imprisonment and fines are intrinsicaily

different.” (Emphasis added). Muniz at 477.

Based upon a reading of the Supreme Court cases

cited above, the Petitioner submits that no federal

grounds existed for Respondent to grant the Motion to

Dismiss for lack of a jury trial. The fact that Nevada’s

statute requires mandatory, as opposed to discretionary,

imposition of imprisonment is irrelevant, since the

Supreme Court stated in Duncan, supra, that it is the

potential, not the actual jail sentence which is important.

The fact that the DUI statute contains provisions such as

mandatory counseling and that a DUI conviction will

result in collateral consequences (such as the loss of a

driver’s license or enhanced punishment on a second

offense) is insufficient to mandate a jury trial. Frank,

supra, contained an obvious statement of the High Court

that regulatory provisions of sentencing, such as proba-

tion, do not take an offense out of the “petty” category if

it is otherwise treated as a “petty” offense, that is, pun-

ishable by no more than six months in jail. As noted in

Baldwin, supra, the fact that the conviction could result in

serious consequences and repercussions does not control

whether the crime is classified as “petty” or “serious.”

Finally, the mere fact that Nevada has chosen to impose a

$1,000 fine, instead of a $500 fine, does not automatically

remove the offense from the “petty” category, especially

given the rulings of the Nevada Supreme Court in tiis

area, specifically in State v. Smith, suyra.

49

Considering the above analysis, it is difficult to agree

with the reasoning of Judge Reed in Bronson. With all due

respect to Judge Reed, the Petitioner submits that his

opinion in Bronson presents an incomplete statement of

the case law in this area and the rationale and policies set

forth by the United States Supreme Court.

Judge Reed relied heavily upon two Ninth Circuit

cases dealing with jury trial issues. United States v. Craner,

652 F.2d 461 (9th Cir. 1976) and United States v. Sanchez-

Meza, 547 F.2d 461 (1976). The Petitioner’s reading of both

of these cases is that they represent attempts by the Ninth

Circuit to expand the concept and scope of jury trials way

beyond that established by the United States Supreme

Court. The Petitioner does not agree with the reasoning

of the Ninth Circuit in either case and argues that while

the Ninth Circuit (absent an overriding ruling from the

Supreme Court) can create a greater scope of jury trials in

the federal courts under its appellate jurisdiction, its

rulings are not binding upon the State of Nevada and are

in direct contradiction with the case law established by

the Supreme Court, which is binding upon Nevada.

Moreover, both Craner and Sanchez-Meza concerned fed-

eral offenses taking piace on federal land. Thus, inter-

pretation of federal statutory law was involved, not state

law.

Not every federal court agrees with Craner. In United

States v. Fletcher, 505 F.Supp. 1053 (1981), the United

States District Court for the Western District of Virginia

not only summarily denied a request for a jury trial

involving a DUI committed in a federal park, but also

rejected the Craner and Woods concept of looking beyond

50

the authorized penalties. Indeed, the Fletcher Court spe-

cifically held that:

_. , the revocation of the right to operate a vehicle

upon the highways, . . . is not a part of the punish-

ment provided by law to be fixed by a court or jury

upon conviction of a crime. The revoca-

tion . . . follows as a consequence and effect of

conviction for crime. Fletcher at 1054.

Another federal court has rejected the concept that

courts should consider the treatment of the offense at

common law or whether the offense is malum in se, again

in direct conflict with Craner, Woods and Sanchez-Meza.

The United States District Court for the District of Puerto

Rico, in Matoe v. Rodriquez, 440 F. Supp. 673 (1976), firmly

rejected the “nature of the offense” method of classifying

crimes for purposes of jury trials. The Court gave great

weight to the Supreme Court decision in Frank, supra, and

stated that:

_. . the Court reiterated the importance of the

severity of the maximum sentence and disregarded

the possibility of an extended period of probation as

a criterion for concluding that an offense was serious.

it concluded that of the objective indicators, the most

important is the severity of the sentence. In cases

whére the maximum penalty has been provided for

in a statutory manner, the legislature has been said to

include within the penalty imposed a statement about the

seriousness of the offense... .

_. . It is thus clear that the doctrine of District of

Columbia v. Colts, supra, wherein the primary impor-

tance was given to the nature of the offense, is no

longer applicable. Matos at 676, 677.

Even the Ninth Circuit has had occasion to backtrack

with regard to its decision in Craner. In United Séates v.

51

Arbo, 691 F.2d 862 (1982), the Ninth Circuit referred to its

policy in Craner. In Arbo, the defendant was charged with

a violation of both federal statute and a federal regula-

tion. The Court noted that its decision in Craner was

based on “extraordinary circumstances”, that is the lack

of legislative judgment because the offense arose from a

federal regulation. But in Arbo, the Court said no extraor-

dinary circumstances existed since the defendant was

charged under a federal statute, which did show legisla-

tive judgment that the crime should be a petty offense

and triable without a jury.

In addition to the Arbo decision, the Ninth Circuit

has, in one other opinion, apparently recanted, at least in

part, the doctrine in Craner. In United States v. Jenkins, 734

F.2d 1322 (1983), the Court found that the imposition of a

two year probation period under the Youth Corrections

Act did not create extraordinary circumstances warrant-

ing a jury trial; that this collateral consequence did not

remove the offense from the petty category because it

was punishable by not more than six months in jail.

(Jenkins involved a simple assault.)

Given the detailed review of the case law contained

in this Brief of the decisions of the United States Supreme

Court, together with an in depth reading of the decisions

of the Ninth Circuit, which are often ambiguous at best, it

is evident that DUI offenders in the State of Nevada, and,

more specifically, those charged in the Municipal Court of

North Las Vegas, do not have a constitutional right to a

trial by jury.

For the reasons heretofore stated, the Petitioner

requests that the Court reverse the decision and order of

52 53

Respondent and remand the case to the Eighth Judicial IN THE SUPREME COURT OF THE STATE OF NEVADA

District Court for a trial de novo without a jury. MELVIN R. BLANTON, ) No. 17940

Respectfully submitted, Appellant, ‘

ROY A. WOOFTER, vs.

CITY ATTORNEY THE NORTH LAS VEGAS )

CITY OF NORTH MUNICIPAL COURT, NORTH LAS ?

LAS VEGAS VEGAS, NEVADA AND THE ‘

ie HONORABLE GARY DAVIS,

By: /s/ Mark L. Zalaoras MUNICIPAL JUDGE THEREOF,

Mark L. ZALAORAS R nd )

Deputy City Attorney espondents. )

1301 East Lake Mead CITY OF NORTH LAS VEGAS, )

North Las Vegas, NV 89030 NEVADA, )

Real Party in )

Interest. )

APPELLANT’S OPENING BRIEF

(Filed June 22, 1987)

JOHN J. GRAVES, JR., ESQ. MARK L. ZALAORAS, ESQ.

GRAVES, LEAVITT & KOCH Deputy City Attorney

601 South Sixth Street 1301 East Lake Mead Blvd.

Las Vegas, Nevada 89101 North Las Vegas, NV 89030

(702) 385-7277

Attorney General’s Office

State Mailroom Complex

Las Vegas, Nevada 89158

Counsel for Appellant Counsel for Respondents

Ill

IV

54

TABLE OF CONTENTS

INDEX OF CASES CITED ............-..--45.

STATEMENT OF THE CASE AND RELEVANT

Ps accccUineucceduceausivdcineckhobernase

A.

A Jury Trial in a DUI Prosecution is Required

Upon Demand in Municipal Court Pursuant to

the United States and Nevada Constitutions ..

The Federal District Court for the District of

Nevada Has Ruled That As A Matter of Federal

Constitutional Law, A Defendant Charged With

Driving Under the Influence of Intoxicating

Liquor Has The Right To A Jury Trial........

c.

The United States Court of Appeals for the

Ninth Circuit Has Ruled In a State Case That a

Potential Fine of $1,000.00 Triggers The Right To

By FO TEE o oc cccccccccccccccccccccccesccese

ee ef + | PPPPOTITICTITI TIT T irre

CERTIFICATE OF SERVICE BY MAIL.........

55

INCEX OF CASES CITED

Unitep STATES CONSTITUTION

ee ce eeee (Cedeosoosooeneees

NevaDA CONSTITUTION

IE Th. cc cccnvsdevesndcccococcsccseeses

I NS occa ccndévotccccccccccsceeseaceese

NevaDa ReviseD STATUTE

CASES

DE, dk dip babe bnewees cencnoestsseanes cece

Bronson v. Swinney, United States District Court;

District of Nevada CV-R-86-130-ECR, Filed

PPP rrr ie

Duncan v. Louisana, 391 U.S. 145, 88 S.Ct. 1444, 20

re on ds spb heedbeessesces

Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33

L.BG26 BEG (ISTE)... cc ccccccccccccccccscess

Crees v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49

L.Ed.2d 859 (1976). ......2-cccccccececcescees

Rife v. Godbehere, 814 F.2d 563 (CA9 1987)....

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

United States v. Hamdan, 552 F.2d 276 (CA9 1977)

“eevee

56 |

I

STATEMENT OF THE CASE AND RELEVANT FACTS

On or about July 18, 1986, Defendant / Appellant

MELVIN BLANTON was arrested by an officer of the

North Las Vegas Police Department for driving under the

influence of intoxicating liquor (N.R.S. 484.379), and so

charged in a “first offense” criminal complaint on or

about July 18, 1986.

On or about October 3, 1986, Defendant, by and

through counsel, filed a Demand for Jury Trial, which

Demand was orally denied by the Honorable Gary Davis,

Judge of the Municipal Court, North Las Vegas, Nevada.

A Petition for Writ of Mandamus asserting Defen-

dant’s right te a jury trial in a first offense DUI prosecu-

tion was filed in the Eighth Judicial District Court on

November 3, 1986, the Honorable Michael Wendell. The

Petition was exclusively based upon federal! law and the

decision rendered by Federal District Judge Edward Reed

in Bronson v. Swinney,.on September 26, 1986, granting a

jury trial to Petitioner Bronson in that case. Judge Wen-

dell denied Defendant’s Petition for Writ of Mandamus in

a formal Order of January 14, 1987, from which Defen-

dant filed a Notice of Appeal to this Court on January 20,

1987.

II

ISSUE

Whether the United States or Nevada Constitutions

Require a Jury Trial, Upon Demand, for a Defendant

Charged With First Offense Driving Under the

Influence of Intoxicating Liquor, a Misdemeanor, in a

57

Municipal Court, Notwithstanding the Statutory

Mandate of N.R.S. 266.550 Requiring a Trial to

the Bench in All Misdemeanor Municipal Court Trials.

Ill

LEGAL MEMORANDUM

A.

A Jury Trial in a DUI Prosecution is Required Upon

Demand in Municipal Court Pursuant to the

United States and Nevada Constitutions

N.R.S. 266.550 states:

Powers and jurisdiction of court same as justice's

court; trial summary and without jury.

The municipal court shall have such powers and

jurisdiction in the city as are now provided by law

for justices’ courts, wherein any person or persons

are charged with the breach or violation of the provi-

sions of any ordinance of such city or of this chapter,

of a police or municipal nature; but the trial and

proceedings in such cases shall be summary and

without a jury. (1907, p.265; RL 1912, Sec. 832; CL

1929, Sec. 1167.)

The Nevada Constitution, Article 1, Section 3, states:

Sec: 3. Trial by jury; waiver in civil cases.

The right of trial by Jury shall be secured to all

and remain inviolate forever; but a Jury trial may be

waived by the parties in all civil cases in ‘ive manner

to be prescribed by law; and in civil cases, if three

fourths of the Jurors agree upon a verdict it shall

stand and have the same force and effect as a verdict

by the whole Jury, Provided, the Legislature by a law

by a two thirds vote of all the members

elected to each branch thereof may require a unani-

mous verdict notwithstanding this Provision.

The Nevada Constitution, Article 1, Section 8 states:

58

Section 8. Rights of accused in criminal prosecutions;

jeopardy; due process of law; eminent domain.

No person shall be tried for a capital or other

infamous crime (except in cases of impeachment, and

in cases of the militia when in actual service and the

land and naval forces in time of war, or which this

state may keep, with the consent of congress, in time

of peace, av.d in cases of petit larceny, under the

regulation of the legislature) except on presentment

or indictment of the grand jury, or upon information

duly filed by a district attorney, or attorney general

of the state, and in any trial, in any court whatever,

the party accused shall be allowed to appear and

defend in person, and with counsel, as in civil

actions. No person shall be subject to be twice put in

jeopardy for the same offense; nor shall he be com-

lled, in any criminal case, to be a witness against

imself, nor be deprived of life, liberty, or property,

without due process of law; nor shall private prop-

erty be taken for public use without just compensa-

tion having been first made, or secured, except in

cases of war, riot, fire, or great public peril, in which

case compensation shall be afterward made.

The Sixth Amendment to the United States Constitu-

tion states:

AMENDMENT VI

[Rights of Accused in Criminal Prosecutions]

Rights of accused in criminal prosecutions.

In all criminal prosecution, the accused shall enjoy

the right to a speedy and public trial, by an impartial

jury of the State and district wherein the crime shall

have been committed, which district shall have been

previously ascertained by law, and to be informed of

59

the nature and cause of the accusation; to be con-

fronted with the witnesses against him; to have com-

pulsory process for obtaining witnesses in his favor,

and to ve the Assistance of Counsel for his

defense.

The United States Supreme Court in Duncan v. Louisi-

ana, 391 US. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968),

held that “crimes carrying possible penalties up to six

months in custody do not require a jury trial if they

otherwise qualify as petty offenses.” Duncan, 88 S.Ct.

1453.

The Court further found at 88 S.Ct. 1453, that:

... the penalty authorized for a particular crime

has major relevance in determining whether it is

serious or not and may in itself, if severe enough,

subject the trial to the mandates of the Sixth

Amendment...

Duncan itself instructed that a national standard be

utilized to determine whether a jury trial is required

upon demand for certain offenses. 391 U.S. 161, 88 S.Ct.

1453. Exhibit “A” attached hereto shows that forty-seven

(47) States allow Jury Trials in DUI cases specifically or in

misdemeanor cases in general. See Baker v. City of Fair-

banks, 471 P.2d 386 (Alaska 1970).

There are several important ramifications involved in

a first conviction of misdemeanor D.U.I. in the State of

Nevada:

1. Defendant must choose between two (2) days

imprisonment or perform forty-eight (48) hours of

work for the community which computes to six (6)

days at eight (8) hours per day. N.R.S.

484.3792(1)(a)(2).

60

2. Defendant must wear “distinctive garb” while

rforming this community service, which garb must

identify him as a violator of the DUI laws.

3. A mandatory minimum fine of $200.00 but not

more than $1,000.00. N.R.S. 484.3792(1)(a)(3).

4. Defendant must complete at his own expense,

usually $175.00 or greater, an educational course on

the abuse of alcohol and controlled substances

approved by the Department of Motor Vehicles, and

complete the course within the time specified in the

Order of the Court. N.R.S. 484.3792(1)(a)(1).

5. Suffer a mandatory ninety (90) day suspension of

his driver’s license. N.R.S. 484.460(1)(c).

6. Suffer almost certain insurance premium

increases, and the

7. Social stigma of being a convicted “drunk

driver”.

The criminal charge of D.U.I. is a misdemeanor

which carries a maximum period of incarceration of six

(6) months in the local County Jail and a maximum fine

of $1,000.00. N.R.S. 484.3792.

Upon a second conviction of D.U.I. within seven (7)

years, a defendant must be sentenced to a mandatory

minimum period of ten (10) days incarceration, and a fine

of not less than $500.00. N.R.S. 484.3792(1)(b). Upon a

third charge of D.U.I. within seven (7) years, the charge

becomes a felony punishable by imprisonment for ,not

less than one (1) year nor more thar. six (6) years, in a

minimum security institution, honor camp, restitution

center, or similar facility, and defendant must be fined

not less than $2,000.00 nor more than $5,000.00. N.R-S.

484.3792(c).

61

Equally important is that no D.U.I. charge is dismiss-

able or negotiable by the prosecuting authorities “unless

(the prosecuting attorney) knows or it is obvious that the

charge is not supported by probable cause or cannot be

proved at the time of trial.” N.R.S. 484.3792(3).

Again, the United States Supreme Court, in Duncan,

supra, stated that a national standard be utilized in deter-

mining whether a Jury Trial is mandated for a particular

offense, at 88 S.Ct. 1453:

In determining whether the length of the autho-

rized prison term or the seriousness of other punishment

is enough in itself to ire a jury trial, we are

counseled by District of Columbia v. Clawans, 300 U.S

617, 57 S.Ct. 660, 81 L.Ed. 843 (1937), supra, to refer

to objective criteria, chiefly the existing laws and

practices in the Nation. In the federal system, petty

offenses are defined as those punishable by no more

than six months in prison and a $500.00 fine.

(Emphasis and parenthetical material added.)

See also, Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909,

49 L.Ed.2d 859 (1976), wherein the Court reviewed legis-

lative reenactments of the death penalty in one form or

another after Furman v. Georgia, 408 U.S. 238, 92 S.Ct

2726, 33 L.Ed.2d 346 (1972), in these words, at 96 S.Ct.

2928:

. The most marked indication of society’s endorse-

ment of the death penalty for murder is the legisla-

“tive response to Furman. The legislatures of at least

: 35 States have enacted new statutes that provide for

the ‘death penalty for at least some crimes that result

in the death of another n. And the Congress of

the United States, in 1974, enacted a statute provid-

ing the death penalty for aircraft piracy that results

in death. Phese recently adopted statutes have

attempted to address the concerns expressed by the

62

Court in Furman primarily (i) by specifying the fac-

tors to be weighed and the procedures to be followed

in deciding when to impose a capital sentence, or (ii)

by making the death penalty mandatory for specified

crimes. But all of the post Furman statutes make clear

that capital punishment itself has not been rejected

by the elected representatives of the people.

The national s‘andards reflected in the allowance of

Jury Trials ,or D.U.I. charges in forty-seven (47) States

clearly mandate a Sixth and Fourteenth Amendment

requirement that a Jury Trial be allowed, at a defendant's

request, in a D.U.I. trial. The draconian consequences

attendant to such a conviction, in their own right, lend

strength to the imposition of a jury between the accused

and the force of the State or prosecuting attorney.

The Federal District Court for the District of

Nevada Has Ruled That As A Matter of Federal

Constitutional Law, A Defendant Charged With

Driving Under the Influence of Intoxicating

Liquor Has the Right to A Jury Trial

This Court is referred to the well-reasoned decision

of Judge Edward Reed, attached hereto as Exhibit “B”, in

the case of Bronson v. Swinney, CV-R-86-130-ECR, filed

October 1, 1986, in the United States District Court for the

District of Nevada. Without reiterating the law in that

decision in the opening brief proper, the law and reason-

~g of that decision is urged upon this Court. The Bronson

case is now stuck in the Ninth Circuit awaiting a current

ruling by this Court on this issue, since Bronson’s attor-

ney neglected to exhaust his State remedies before gallop-

ing into the federal system.

63

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

1981), allowing jury trials for first-time DUI offenders in

federa! court.

C.

The United States Court of Appeals for the Ninth

Circuit Has Ruled In a State Case That A Potential

Fine of $1,000.00 Triggers the Right To A Jury Trial

In Rife v. Godbehere, 814 F.2d 563, 565 (CA9 1987), the

Ninth Circuit ruled that an Arizona State Defendant

charged with a Class I misdemeanor punishable by a fine

of up to $1,000.00 was entitled to a jury trial. The Court

followed the rule in United States v. Hamdan, 552 F.2d 276

(CA9 1977) which granted a jury trial on a federal charge

of the making of false statements in documents filed with

the Immigration and Naturalization Service, where a

potential fine of $1,000.00 existed. Rife extends this rule to

a State offense punishable by a potential fine of $1,000.09.

Inasmuch as a first-offense D.U.I. charge carries a poten-

tial fine of $1,000.00, a jury trial is required on this

separate legal basis and case.

IV

CONCLUSION

N.R.S. 266.550 cannot withstand the tide of federal

constitutional law cited above. This Court is not asked to

hold the statute unconstitutional for all purposes (misde-

meanor crimes), as the Rife case might strongly suggest;

but this Court is urged to construe N.R.S. 266.500 inappli-

cable to DUI offenses pursuant to the federal and state

constitutional provisions enumerated above. This would

64 65

allow Defendant BLANTON his jury trial in North Las IN THE SUPREME COURT OF THE STATE OF NEVADA

Vegas Municipal Court. seen

DATED this 19th day of June, 1987. CITY OF NORTH Case No. 18065

LAS VEGAS, NEVADA,

GRAVES, LEAVITT & KOCH Petitioner,

/s/ John J. Graves, Jr. vs.

JOHN J. GRAVES, JR., ESQ.

601 South Sixth Street

Las Vegas, Nevada 89101

ADDELIAR D. GUY, DISTRICT

JUDGE, EIGHTH JUDICIAL

(702) 385-7277 DISTRICT COURT OF THE

Attorn for Defendant/ STATE OF NEVADA,

Appellant MELVIN BLANTON Respondent.

_ ANSWER TO PETITION FOR

A WRIT OF CERTIORARI

(Filed July 1, 1987)

ATTORNEY FOR ATTORNEY FUR

lr ETITIONER RESPONDENT

MARK L. ZALAORAS JOHN G. WATKINS, ESQ.

Deputy City Attorney 333 N. Rancho Dr.

City of North Las Vegas Suite 633

2200 Civic Center Dr. Las Vegas, Nevada 89106

North Las Vegas, NV 89030

66

TABLE OF CONTENTS

Page

TABLE OF CONTENTS........-----seeeeeceeeeeeee i

CASES AND AUTHORITIES...........-----++0000% ii

NEVADA REVISED STATUTES .........---++++++5> ii

AEE . cc ccccccscscedcdnecscocatescsédedsocesceses 1

lt rrr? rrr tit 2

Il.

ARGUMENT

A.

ARE INDIVIDUALS CHARGED WITH VIOLAT-

ING OFFENSES UNDER NRS 484.379 CONSTI-

TUTIONALLY GUARANTEED A TRIAL BY

JURY?

IS NRS 266.550 UNCONSTITUTIONAL?

INDIVIDUALS CHARGED WITH VIOLATING

NRS 484.379 SUBSEQUENT TO JULY 1, 1983

ARE CONSTITUTIONALLY GUARANTEED A

TRIAL BY JURY AS THE OFFENSE IS

“SERIOUS” AS OPPOSED TO “PETTY”

SINCE AN INDIVIDUAL HAS A RIGHT TO A

JURY TRIAL FOR NRS 484.379 VIOLATIONS,

NRS 266.550 IS UNCONSTITUTIONAL

67

CASES AND AUTHORITIES

Page

Case

BRONSON V. SWINNEY CV-R-86-130 ECR

SEED. «cane chdseesGseebeebeeeenctsépcoeneesoocce: 3

CITY NORTH LAS VEGAS ex rel. ARNDT V.

DAINES 92 Nev. 292, 550 P. 2d 399 (1976) ......... 4

DUNCAN V. LOUISIANA 391 U:S. 145, 20 L. Ed.

YP oF § Se ST eee 3

STATE ex rel. WATSON V. MERIALDO 70 Nev. 322,

| hk f RR a RE rr PPT Ty 4,5

STATE V. SMITH 99 Adv. Op. 172 (1983)............. 3

Nevapa Revisep STATUTES

dl eke neseouesees 1, 2, 4, 5

RT A i el, ee ttie sce ceeeeedeedes 4

i E. . «oc cu ceeeseeseeeeeseecesesoconces 2, 3, 4

68

IN THE SUPREME COURT OF THE STATE OF NEVADA

*e fe 8 © ©

CITY OF NORTH Case No. 18065

LAS VEGAS, NEVADA,

Petitioner,

vs.

)

)

)

)

}

ADDELIAR D. GUY, DISTRICT ?

JUDGE, EIGHTH JUDICIAL )

DISTRICT COURT OF THE )

STATE OF NEVADA, ‘

)

Respondent.

ANSWER TO PETITION FOR

A WRIT OF CERTIORARI

FACTS

Defendant, MARK D. FRALEY, was arrested for

“Driving under the influence of intoxicating liquor” here-

inafter referred as D.U.I. and was scheduled for trial in

the North Las Vegas Municipal Court. Fraley file a writ-

ten demand for trial by jury. The municipal judge denied

the request and subsequently convicted Defendant of the

D.U.I. charge. An appeal was filed in the Eight Judicial

District Court.

One issue raised on appeal was the denial of the

right to be tried by jury. The Honorable Addeliar D. Guy

considered briefs and arguments of the respective parties

and held that all defendants charged with D.U.1.’s subse-

quent to July 1, 1983 are constitutionally entitled to a trial

by jury if desired. He further ruled that NRS 266.550 in so

far as it prevents or denies jury trials in municipal courts,

is unconstitutional. Counsel for the City of North Las

69

Vegas filed a Petition for Writ of Certiorari in this Court.

Two issues arise from these facts (1) Are individuals

charged with D.U.I. offenses under NRS 484.379 entitled

constitutionally to a jury trial? and (2) Is NRS 266.550

unconstitutional? If the answer to the former is negative

then the second issue becomes moot. On the other hand if

jury trials are constitutionally guaranteed the second

issue is alive and must be considered accordingly.

ISSUES

1.

ARE INDIVIDUALS CHARGED WITH VIOLAT-

ING OFFENSES UNDER NRS 484.379 CONSTI-

TUTIONALLY GUARANTEED A TRIAL BY

JURY?

Il.

IS NRS 266.550 UNCONSTITUTIONAL?

ARGUMENT

A.

INDIVIDUALS CHARGED WITH VIOLATING

NRS 484.379 SUBSEQUENT TO JULY 1, 1983

ARE CONSTITUTIONALLY GUARANTEED A

TRIAL BY JURY AS THE OFFENSE IS

“SERIOUS” AS OPPOSED TO “PETTY”

Individuals within Nevada’s boundaries are constitu-

tionally guaranteed trial by jury. The Nevada Constitu-

tion, Article I, Section 3 mandates,

“The right of trial by jury shall be secured to all and

remain inviolate forever .. . ” (Emphasis Added)

70

Federal protection is also afforded the public. The Sixth

Amendment of the United States Constitution holds,

“In all criminal prosecutions, the accused shall enjoy

the right to a speedy trial, by an impartial jury of the

State and district wherein the crime shall have been

committed, which district shall have been previously

ascertained by law .. . ” (Emphasis Added).

This right to a jury trial is a fundamental one and is

applicable to State proceedings through the 14th Amend-

ment. Duncan v. Louisiana, 391 U.S. 145, 20 L.Ed. 2d 491,

88 S. Ct. 1444 (1968). It is well settled however that not all

offenses require or trigger a trial by jury but rather only

those which are “serious” as opposed to “petty”. (It is

worthy to note that even though an offense may be

considered “petty” under the United States Constitution,

the State constitution may require that it be deemed

“serious” and guarantee a jury trial. A State is free to

afford its citizens more rights than guaranteed by the

federal constitution. However, it is this writer’s position

that under either constitution, a jury trial is guaranteed

for NRS 484.379 violation). Characterizing a particular

offense as either “serious” or “petty” is not automatic but

rather requires considering a number of issues and fac-

tors. This was done in a well reasoned decision by Judge

Reed in Bronson v. Swinney, CV-R-86-130 LCR (10-1-86)

which should be adopted by this Court. C.f. State v.

Smith, 99 Adv. Op. 172 (1983) (State v. Smith, is inapplica-

ble for now jail time is mandatory unlike the situation

and state of the law at the time of State v. Smith, supra.) in

addition to several other collateral consequences arising

from a conviction. No one can honestly say that Nevada

does not consider D.U.I.’s to be serious. A mere reading

of this Court’s opinions on D.U.I. related issues dispells

71

anything to the contrary. Such a strong position is war-

ranted as “drinks are dangerous when they drive”. How-

ever, it would be more dangerous if the government were

allowed to take away a valuable right from its citizens.

Under the circumstances that now exist, both the United

States and Nevada Constitutions guarantee a trial by jury

for offenses under NRS 484.379

SINCE AN INDIVIDUAL HAS A RIGHT TO A

JURY TRIAL FOR NRS 484.379 VIOLATIONS,

NRS 266.550 IS UNCONSTITUTIONAL

Municipal courts are unconstitutionally authorized

and created by the legislature. See Article 6, Section 1 of

the Nevada Constitution. It is important to note that once

municipal courts are established, they exist as a coequal

branch of local government and are part of the constitu-

tional judicial system of this state. See City of North Las

Vegas ex rel. Arndt v. Daines, 92 Nev. 292, 550 P. 2d 399

(1976). The legislature is empowered to fix by law the

jurisdiction of the municipal courts. See Article 6, Section

9 of the Nevada Constitution. NRS 266.555 sets the

municipal courts’ jurisdiction which includes D.U.I.

cases. It is well settled that municipal courts once created

are part of the constitutional judicial system. Equally

true, the executive and/or legislative branches of state

government may not exercise or restraint the judicial

power. See State ex rel. Watson v. Merialdo, 70 Nev. 322,

268 P. 2d 922 (1954). Forbidding jury trials in municipal

court amounts to the legislative branch undertaking the

role of judicial power. This they cannot do. Therefore,

NRS 266.550 is unconstitutional as to D.U.I. cases.

72

Respectfully submitted,

/s/ John G. Watkins

JOHN G. WATKINS, ESQ.

Att for FRALEY

333 N. Rancho Dr., #633

Las Vegas, Nevada 89106

CERTIFICATE OF MAILING

1 HEREBY CERTIFY that a copy of the above and

foregoing ANSWER TO PETITION FOR WRIT OF CER-

TIORARI was deposited in the mail at Las Vegas, Nevada

on this 30th day of June, 1987 addresses as follows:

MARK L. ZALAORAS, Deputy City attorney, City of

North Las Vegas, 2200 Civic Center Dr., North Las Vegas,

Nevada 89030.

/s/ Barbara Watkins

An —- of JOHN G.

WAT , ESQ.

73

IN THE SUPREME COURT OF THE STATE OF NEVADA

MELVIN R. BLANTON, ) No. 17940

Appellant,

vs.

THE NORTH LAS VEGAS

MUNICIPAL COURT, NORTH LAS

VEGAS, NEVADA AND THE

HONORABLE GARY DAVIS,

MUNICIPAL. JUDGE THEREOF,

Respondents.

CITY OF NORTH LAS VEGAS,

NEVADA,

Real Party in

Interest.

ee ee ee eee ee ee ee ee

RESPONDENT’S ANSWERING BRIEF

(Filed July 24, 1987)

JOHIN J. GRAVES, JR., ESQ. MARK L. ZALAORAS, ESQ.

GRAVES, LEAVITT & KOCH Deputy City Attorney

601 South Sixth Street 1301 East Lake Mead Bivd.

Las Vegas, Nevada 89101 North Las Vegas, NV 89030

(702) 385-7277 At CG I's Offi

State Mailroom

Las Vegas, Nevada 89158

Counsel for Appellant Counsel for Respondents

74 75

Il.

1.

TABLE OF CASES, STATUTES

EARLS CP CONSENTS Page No. AND OTHER AUTHORITIES

Il TABLE OF CASES, STATUTES AND OTHER Page No.

IS eh tae De ee mere i UNrtep States CONSTITUTION

ee Ee eee See iv a eee 3, 4

IV STATEMENT OF THE CASE.................. Vv PO EEE FS TE ne 3

V ARGUMENT a de cububdedesebel 8

A. eo abbeeeuseee 8, 9

The Ruling in State v. Smith is Controlling Fourteenth Amendment.................650ceeeeeeees 9

Authority on the Jury Trial Issue, Even in Light

of the lative Amendments to NRS 484.379

GS Wh ddunedsétncdusscsecauveussebasecues< 1 NevaDa CONSTITUTION

B. cued avacoubeees 5

There is no Federal Constitutional Right to Trial

by Jury for Misdemeanor DUI Offenses....... 3 STATUTES

1. Decisions of federal courts are not auto- 28 U.S.C. §1331 TTT TTTITILILILITILITITT iii +

matically binding upon state courts ..... 3 oe cnsuuesuocaiens 4

2. First and second offense DUI violations = | =igusoc eg, ©... 12, 14

are “petty offenses” under f j 1 consti- 18 U.S.C. §1 COPE SESE EESES ESE SESE SEES 2

tutional law and defendants are not enti- a euuaenstihs 2

SS GD GD OF Bie ccccccccccccccccccs 8

le i oe lle ne coaseereaheeee 2

ERR SIRS ORES Fe, ee re ye 3

EE, ee a NT 3

Cases

Baldwin v. New York 399 U.S. 66, 90 S.Ct. 1886

SELES I Se ee 11, 15

76

Bronson v. Swinney 648 F.Supp 1094 (D.Nev. 1986)

peeceeereseceeseeseneecenceseneoustsesecseess 7, 15, 16

Callan v. Wilson 127 U.S. 540, 8 S.Ct. 1301 (1888) ..... 8

Cheff v. Schackenberg 384 U.S. 373, 86 S.Ct. 1523

SEED cccccceceseccocevenssecesoccesebeuasesescones 9

Codispoti v. Pennsylvania 418 U.S. 506, 94 S.Ct.

f . errr ry TTT TTT ttt 13

Dean v. Crisp 536 P.2d 961, (C.A. Okla. 1975) ........ 6

District of Columbia v. Clawans 300 U.S. 617, 57

BED, GED GREE ccccccccccccccsvccccccsccnssveccees 9

Duncan v. Louisiana 391 U.S. 145, 88 S.Ct. 1444

RED co dcbcvencecacscusesesstocsenconetesestess 9, 15

Frank v. United States 395 U.S. 147, 89 S.Ct. 1503

ED occuccecbcevecccceuesssdeuebhetucesesses 10, 15

In Re Whitehorn 1 Cal.3rd 504, 462 P.2d 361......... 6

Marbury v. Madison 5 U.S. 137 1 Cranch 137........ 5

Matos v. Rodriquez 440 F.Supp. 673 (D.C.P.R.

ee cocckstcstevecccescenssedehbenusoeeretescess 17

Muniz v. Hoffman 422 U.S. 454, 95 S.Ct. 2178

PPPPTTTToTTTTTTTT Tlie Tr Le 14

Natal v. Louisiana 139 U.S. 621, 11 S.Ct. 636 (1891) ..... 9

People v. Luros 92 Cal.Rptr. 833, 480 P.2d 633

PP avcddasnseqeewehes ceesekentt$6eees onéeceosees 6

Rahn v. Warden 88 Nev. 429 (1972) ...........505005 7

Rife v. Godbehere 814 F.2d 563, (9th Cir. 1987)...... 14

Schick v. United States 195 U.S. 65, 24 S.Ct. 826

DE odhondcdcdecdvekeccueressvesesesecennsauesess 9

State v. Harmon 685 P.2d 814 (Ida. 1984)............. 6

77

State v. Smith 99 Nev. 806 (1983) .............. 1, 2, 15

Taylor v. Hayes 418 U.S. 488, 94 S.Ct. 2687 (1974) ....13

United States v. Arbo 691 F.2d 862, (9th Cir. 1982) ....18

United States v. Craner 652 F.2d.461, (9th Cir.

a pleat le cae sick eg i 13, 16

United States ex. rel. Lawrence v. Woods 432 F.2d

1072 (7th Cir.), cert. den. 402 U.S. 983 (1970)....... 6

United States v. Fletcher 505 F. Supp. 1053 (W.D.

RE eee ee ee eR 16

United States v. Jenkins 734 F.2d 1322 (9th Cir.

I a la ial ite ih lt ek a i tin a 18

United States v. Sanchez-Meza 547 F.2d 461 (1976) .... 16

Ill.

ISSUE

WHETHER A PERSON CHARGED WITH A MISDE-

MEANOR DUI OFFENSE HAS A CONSTITU-

TIONAL RIGHT TO A TRIAL BY JURY IN VIEW OF

LEGISLATIVE AMENDMENTS TO THE DUI LAW

SINCE THE RULING IN STATE V. SMITH AND IN

LIGHT OF THE RULING BY THE FEDERAL DIS-

TRICT COURT OF NEVADA IN BRONSON V.

SWINNEY?

IV.

STATEMENT OF THE CASE

The City of North Las Vegas adopts Blanton's version

of the facts as stated in his Statement of the Case and

Relevant Facts on page 1 of his “Appellant's Opening

Brief”, with the addition of the following facts, which

were omitted by Blanton.

——

78

The City o: North Las Vegas filed a Motion to Strike

Demand for Jury Trial in the Municipal Court of North

Las Vegas on or about October 9, 1986. At the same time

Blanton’s Demand for Jury Trial was denied by the

Municipal Court, the City’s Motion to Strike Demand for

Jury Trial was granted. The Municipal Court stayed pro-

ceedings pending determination of the Petition for a Writ

of Mandamus in the District Court.

V.

ARGUMENT

A.

THE RULING IN STATE v. SMITH IS CONTROL-

LING AUTHORITY ON THE JURY TRIAL ISSUE,

EVEN IN LIGHT OF THE LEGISLATIVE AMEND-

MENTS TO NRS 484.379 SINCE 1983.

The pronouncement of this Court in State v. Smith, 99

Nev. 806 (1983) is controlling authority on the DUI jury

trial issue. The accused, Melvin Blanton, is not entitled to

a jury trial for a misdemeanor DUI offense where the

maximum authorized penalty is six (6) months in jail or

less. In Smith, supra, this Court stated:

“Persons are guaranteed the right to a jury trial

by bo.’ art I, section 3 of the Nevada Constitution,

and the sixth amendment to the United States Consti-

tution. Despite apparently significant differences in

the language of these constitutional provisions, both

provisions have been interpreted to guarantee the

right to a jury trial in a criminal matter only as it

existed at common law. Thus, there is no constitu-

tional right to trial by pry for “petty” offenses. See

Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444

(1968); State v. Ruthe, 24 Nev. 251, 52 P. 274 (1898).

Whether there is a constitutional right to a trial by

jury therefor turns upon whether the offense charged

79

is characterized as “serious” or “petty.” See Duncan

v. Louisiana, 391, U.S. at 159. In turn, the principal

criterion used in characterizing an offense as “petty”

or “serious” is the severity of the maximum autho-

rized penalty. See Baldwin v. New York, 399 U.S. 66,

S.Ct. 1996 (1969); Bloom v. Illinois, 391 U.S. 194, 211,

88 S.Ct. 1477 (1968).

In recent decisions, the United States Supreme

Court has increasingly relied upon the objective crite-

rion of the maximum possible penalty in deciding

whether to characterize an offense as “petty” or

“serious”. See Taylor v. Hayes, 418 U.S. 488, 94 S.Ct.

2697 (1974); Codispoti v. Pennsylvania, 418 U. S. 506,

94 S.Ct. 2687. Using this criterion, the Court has held

that where the maximum possible penalty is six

months imprisonment or less, the offense is “petty,”

and the right to trial by jury does not attach. See

Codispoti v. Pennsylvania, 418 U.S. at 512.

At the time of the alleged offense, the maximum

punishment for a first-time DUI conviction in Nev-

ada under NRS 484.379 was six months imprison-

ment or a fine of up to $1,000.00. As the potential

maximum term of imprisonment is six months, it

would appear that respondent Smith’s offense was

“petty” within the Supreme Court's definition, and

that there is thus no constitutional right to trial by

jury in his DUI prosecution. . . .

Accordingly, we look to the criterion expressly

established by the United States Supreme Court:

where the maximum possible penalty is six months

imprisonment or less, the offense is “petty” and the

right to trial by jury does not attach. As NRS 484.379

rovides a penalty of up to six months imprisonment

or a first-time DUI offense, there is no constitutional

right to a trial by jury. The district court thus erred in

granting the writ of mandamus to compel the jus-

tice’s court to grant respondent a jury trial in his

pending DUI prosecution.” Id. at page 809-810.

The amendments to Nx&S 484.379 made in 1983 and

1985 did not change the maximum authorized penalty for

a misdemeanor DUI conviction. Those amendments did

change the minimum penalty. The 1983 Legislature

changed the minimum penalty from a fine of $100 and

mandatory counseling to a $200 fine, mandatory counsel-

ing and either 2 days in jail or 48 hours of community

service for a first offense, and the person must wear

distinctive garb to identify himself as a DUI offender if

performing the latter. NRS 484.3792. The maximum pen-

alty for either a first or second DUI remains at six months

in jail and/or a $1,000 fine. NRS 484.3792. The 1983

Legislature also amended the driver’s license revocation

law by mandating a ninety day revocation for a first

offense DUI conviction and one year for a second offense.

NRS 483.460.

The 1985 Legislature did not change any of the pen-

alty provisions for a misdemeanor DUI. It did increase

the maximum authorized penalty for a felony DUI from

six years to twenty years. NRS 484.3795.

It is clear from the above analysis that the holding in

State v. Smith, supra, remains viable even in light of the

amendments to the DUI law since the time of that deci-

sion. Therefore, there is no right to a jury trial for a

misdemeanor DUI, as that offense must still be classified

as “petty”.

THERE IS NO FEDERAL CONSTITUTIONAL RIGHT

TO TRIAL BY JURY FOR MISDEMEANOR DUI

OFFENSES.

1. Decisions of federal courts are not automatically

binding upon state courts.

81

The powers of the federal judiciary are specified in

the Constitution of the United States and the statutes

enacted by the Congress of the United States. Article III,

Section 1 of the Constitution states that:

The judicial Power of the United States, shall be

vested in one supreme Court, and in such inferior

Courts as the Congress may from time to time ordain

and establish.

Section 2 of Article II further illuminates the issue by

noting that:

Tne judicial Pewer shall extend to all Cases, in Law

and Equity, arising under this Constitution, the Laws

of the United States, and Treaties made, or which

shall be made, under their Authority; . . .

It is clear from the above language that inferior fed-

eral courts were intended to have judicial power only

over specific cases and controversies involving federal

issues. They are not authorized to decide abstract matters

or to bind state courts except to the extent that a particu-

lar case or controversy arises from a state court. The

United States Code has not given any additional powers

to the federal courts and maintai.1s this case or controv-

ery limitation.

28 USC § 1331 - The district courts shall have origi-

nal jurisdiction of all civil actions arising under the

Constitution, laws or treaties of the United States.

28 USC § 3231 - The district courts of the United

States shall have original jurisdiction, exclusive of

the States, of all offenses against the laws of the

United States.

82

Obviously the federal courts are limited in their jurisdic-

tion to specific actions. The same limitation applies to the

highest court in the land, the Supreme Court. In one of

the earliest decisions of the Supreme Court, Article III of

the Constitution was interpreted to preclude any court in

the United States federal system from acting in an advi-

sory capacity or rendering decision on general issues,

rather than on a case by case basis involving actual

controversies. Marbury v. Madison, 5 U.S. 137, 1 Cranch

137 (1803). However, because the Supreme Court is the

ultimate authority on federal questions and issues, its

decisions, while not binding except in a particular case,

are considered to be the most definitive statement of the

law which was at issue in that case and therefore upon

that specific federal question. (Most states also have pro-

visions of their state constitutions or statutes which

acknowledge the United States Supreme Court as the

controlling authority in the interpretation of federal

issues, see Article 1, Sec. 2. of the Nevada Constitution.)

While the reiteration of the above provisions of the

Federal Constitution and Statutes may seem to be super-

fluous, it is ‘mportant that they be recognized since they

are the building blocks for the case law involving the

authority of a federal court to bind a state court. Too

often it is assumed that a federal court is directly supe-

rior to a state court, when in reality, the two systems are

distinct and separate from each other; the federal system

acts only as a method of checks and balances against

improper activity by state courts. The dichotomy between

the federal and state judicial systems is well recognized

in the State of Nevada. In Bargas v. Warden, 87 Nev 30, 482

83

P.2d 317 (1971), the Supreme Court of the State of Nevada

noted that:

We are bound by the decisions of the United States

Supreme Court (Nevada Constitution, Article 1, Sec.

2.). We are not bound by the decisi »ns of the other

federal courts, Bargas at 32.

Nevada is not alone in its view regarding the force

and effect of federal decisions. In People v. Luros, 480 P.2d,

633, 92 Cal Rptr. 833 (1971), the Supreme Court of Califor-

nia in an en banc decision, reiected the interpretations of

several federal courts noting that the federal courts were

not “compelling authority” and citing to the California

case most known for outlining the division between fed-

eral and state courts, In Re Whitehorn, 1 Cal. 3rd 504, 462

P.2d 361 (1969).

Similarly, the Supreme Court of Idaho, in State v.

Harmon, 685 P.2d 814 (1984) indicated that while it might

give deference to federal district court opinions, it was in

no way bound by them. Citing the premiere federal case

in this area, United States ex. rel. Lawrence v. Woods, 432

F.2d 1072 (7th Cir. Ill.) cert. den. 402 U.S. 983 (1970),the

Idaho Court noted that federal district court rulings do

not bind state courts in unreiated cases.

Finally, in one of the most succinct statements of the

law in this area, the Court of Criminal Appeals of Okla-

homa, in Dean v. Crisp, 536 P.2d 961 (1975), stated that:

... The federal courts have no jurisdiction except in

those areas which are concerned with interpretation

of the United States Constitution. The inferior federal

courts exercise no appellate jurisdiction over state

tribunals. Therefore, decisions from these federal

courts are not conclusive on state courts... . The

84

decisions of the Federal Circuit Court of Appeals in

Lamb, supra, and Radcliff, supra, do not establish

binding precedent on this Court until the issue is

answered by the United States Supreme Court. The

inferior federal courts exercise their power only on a

case-to-case basis and can extend their power no

further. Dean at 963.

Of course the Court in Dean also noted that federal

case law is often persuasive and the Nevada Supreme

Court has also so indicated in Rahn v. Warden, 498 P.2d

1344 (1972), where the Nevada High Court acquiesced in

decisions of the Ninth Circuit Court of Appeals.

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

the authority relied upon by Blanton to support his argu-

ment for a jury trial, the Federal Court had before it a

Writ of Habeas Corpus arising out of a conviction for DUI

originating in the Justice’s Court for Reno. The granting

of the Writ and the Court’s Order for a jury trial on

remand are only binding upon the original Justice’s

Court, and only in that particular case. The federal order

is not binding upon a municipal or district court in the

instant situation. A court’s holding is always limited to

those issues which are necessary to decide the case. All

other commentary is dictum and not precedent. Since

Judge Reed’s minor reference to municipal court was not

necessary to a resolution of the case, it would not be

binding.

Given the above case law, it is clear that neither the

North Las Vegas Municipal Court nor the District Court

are bound by the Bronson decision. Moveover, the State

of Nevada has not chosen to acquiesce to federal court

rulings in this area and the District Court correctly chose

85

not to have taken notice of the Bronson ruling and denied

Blanton's Petition.

2. First and second offense DUI violations are

. offenses” under federal constitutional law

and defendants are not entitled to trials by jury.

A review of the United States Constitution and

Supreme Court case decisions is necessary for a complete

understanding of the issues involved with the DUI jury

trial question. Article III, Section 2, paragraph 3 of the

United States Constitution states that:

“The Trial of all Crimes, except in Cases of Impeach-

ment, shall be by Jury; ... ”

This language was later supplemented by the Sixth

Amendment which provides that:

“In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial!

may...”

On its face, the Constitution would seem to impose

the right of trial by jury in all federal criminal cases,

bearing in mind that Article III deals only with the fed-

eral government and federal crimes. Despite this lan-

guage, however, the Supreme Court of the United States,

as the ultimate authority on the meaning of the Constitu-

tion, decided as early as 1888, in Callan v. Wilson, 127 U.S.

540, 8 S.Ct. 1301, that the language in the Constitution

must be viewed in light of the times in which it was

written. Thus the Supreme Court has consistantly hold

that the right to a jury trial was never intended te apply

to those crimes which were considered to be “petty

offenses” at common law. The Court has on numerous

occasions reitereated this distinction between “petty” and

“serious” offenses and has extended the concept to statu-

tory crimes. Cheff v. Schackenberg, 384, U.S. 373, 86 S.Ct.

1523 (1966); District of Columbia v. Clawans, 300 U.S. 617,

57 S.Ct. 660 (1937); Schick v. United States, 195 U.S. 65, 24

S.Ct. 826 (1904), Natal v. Louisiana, 139 U.S. 621, 11 S.Ct.

636 (1891).

In the landmark case of Duncan v. Louisiana, 391 US.

145, 88 S.Ct. 1444 (1968), when the Supreme Court held

that by virtue of the Fourteenth Amendment, the Sixth

Amendment right to trial by jury also applied to state

criminal proceedings, the High Court again restated its

position with regard to the limitations between “serious”

and “petty” offenses.

. . « It is doubtless true that there is a category of

petty crimes or offenses which is not subject to the

xth Amendment _ trial — and should not

be subject to the Fourteenth Amendment jury trial

requirement here applied to the States . . . the penalty

authorized for a particular crime is of major rele-

vance in determining whether it is serious or not

... The penalty authorized by the law of the locality

may be taken “as a gauge of its social and ethical

judgments,” . . . of the crime in question.

RB ay me de bpm he nen meng se

both in England and in the Colonies and have

been exempt from the otherwise comprehensive lan-

guage of the Sixth Amendment's jury trial provi-

sions. There is no substantial evidence that the

Framers —— to depart from this established

commonlaw practice, and the possible consequences

to defendants from convictions for petty offenses

have been thought insufficient to outweigh the bene-

fits to efficient law enforcement and simplified judi-

cial administration resulting from the availability of

speedy and inexpensive non-jury adjudications. . . .

In the absence of an explicit constitutional provision,

87

the definitional task necessarily falls on the courts,

which must either pass on the validity of the legisla-

tive attempts to identify those petty offenses which

are exempt from trial, or where the legislature

has not itself to the problem, themselves

face the questions in the first instance . . .

In determining whether the h of the authorized

term or the seriousness of other punishment is

enough in itself to require a trial, we are coun-

seled by District of Columbia v. C , supra, to refer

to ve criteria, chiefly the laws and practices in

the Nation. 88 S.Ct. at 1453.

The Duncan Court then went on to note that both at

common law and in federal statutes, the dividing line

between “petty” and “serious” offenses was a maximum

jail sentence of six months. The Court also indicated, in

Footnote 35, that with the exception of criminal contempt

offenses, the relevant penalty to be considered was the

possible maximum sentence which could be imposed, not

the actual sentence levied against the defendant.

Subsequent to Duncan, the Supreme Court has writ-

ten several decisions which clarify the manner in which a

crime is to be classified as “petty” or “serious” and

stresses that the amount of jail time which could be

imposed is to be considered the most important, almost

exclusive, factor in making such a determination. The

first of these cases is Frank v. United States, 395 US. 147,

89 S.Ct. 1503 (1969). Frank dealt with a criminal contempt

charge arising out of the violation of an administrative

ruling. The Court succinctly reviewed the steps a court

should take in deciding whether or not a jury trial is

warranted.

“In determining whether a particular offense can be

classified as ‘petty,’ this Court has sought objective

indications of the seriousness with which society

regards the offense. . . .The most relevent indication

of the seriousness of an offense is the severity of the

penalty authorized for its commission.

- the — ea tions, the severity of

e penalty autho , not the penalty actual!

imposed, is the relevant criterion. In such onsen, the

legislature has included within the definition of the

crime itself a judgment about the seriousness of the

offense.” Frank. at 89 S.Ct. at 1505.

Frank also held that collateral consequences of a convic-

tion, if contemplated within the definition of “petty” by

the legislature, would not remove an offense from the

“petty” category. Thus the Court in Frank rejected the

claim that a three year sentence of probation made an

otherwise “petty” offense a “serious” one for purpose of

a jury trial and noted that:

“Probation is, of course, a significant infringement of

personal freedom, but it is certainly less onerous a

restraint than jail itself.” Frank, 89 S.Ct. at 1506.

The next major federal case dealing with jury trials is

Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886 (1970). In

Baldwin, the defendant was charged with a crime which

was punishable by up to one year imprisonment and

which by statute could not be tried by jury. It was in

Baldwin that the Supreme Court established the outer

limit for the dividing line between “petty” and “serious”

crimes. Any offense which carried a penalty in excess of

six months in jail would be “serious”, those whose maxi-

mum jail time did not exceed six months would be

“petty”. The Court made no mention of other factors,

such as the amount of the fine, except to briefly refer to

the $500.00 fine limit contained in the federal definition

of “petty” under 18 USC § 1. The majority of the opinion

centers around the issue of imprisonment and the need

for objective criteria to make a determination.

“ .. This near-uniform jud t of the Nation [that

any jail time over six months removes a crime from

the ‘petty’ offense category] furnishes us with the

only objective criterion by which a line could ever be

drawn-on the basis of the possible penalty alone-

between offenses that are and that are not regarded

as ‘serious’ for purposes of trial by jury.

Of necessity, the task of drawing a line ‘requires

attaching different consequences to events which,

when they lie near the line, actually differ very little.’

Duncan, supra, at 161, 20 L.Ed.2d at 502. One who is

threatened with the ibility of imprisonment for

six months may find little difference between the

potential consequences that face him, and the conse-

quences that faced the appellant here. Indeed, the

of imprisonment for however short a time

will seldom be viewed by the accused as a trivial or

‘petty’ matter and may well result in quite serious

affecting career and his reputation.

the accused cannot possibly face more than

six months’ imprisonment, we have held that these

disadvantages, onerous as they may be, may be out-

weighed by the benefits that result from speedy and

inexpensive non-jury adjudications.” Baldwin, 90

S.Ct. at 1890.

Baldwin clearly sets forth the type of “balancing” test the

Supteme Court recommends in all cases involving the

jury trial issue. However, lower courts and numerous

attorneys have taken Baldwin out of context. For example,

the national standards language of Baldwin has been

referred to by Judge Reed in Bronson and by the Ninth

Circuit in some opinions as supporting grounds for the

granting of jury trials in DUI cases. United States v.

90

Craner, 652 F.2d 461 (9th Cir. 1976). The reasoning stated

is that since the majority of states do grant a defendant a

jury trial for DUI offenses, then this is a reflection by the

“nation” that the offense is a serious one. While many

states do allow for jury trials in DUI cases, they also

allow jury trials in most misdemeanor cases, that is most

cases where the penalty does not exceed six months’ in

jail. Those states which still punish DUI by penalties

which do not exceed the six month standard still consider

the offense as “petty.” These states have not redefined

“petty”, instead they have simply determined that jury

trials should be granted in all crimes, petty or not, either

because their state constitutions require jury trials in all

criminal matters and are broader in scope than the fed-

eral constitution, or because state legislatures have

enacted statutes providing for jury trials in petty offense

cases. Nationally, the standard for defining a “petty”

offense still turns primarily around the maximum possi-

ble jail sentence and the six month rule. Codispoti v.

Pennsylvania, 418 U.S. 506, 94 S.Ct. 2687 (1974); Taylor v.

Hayes, 418 U.S. 488, 94 S.Ct. 2687 (1974).

For some years after Duncan, the Supreme Court did

not rule on the relationship of fines to “petty” offense.

This changed with the rendering of the decision of the

Court in Muniz v. Hoffman, 422 U.S. 454, 95 S.Ct. 2178

(1975). The Court in Muniz noted that while the six

month guideline had been taken in part from the statu-

tory definition of a “petty offense” contained in 18 USC

-§ 1(3) ($500.00 fine and/or six months imprisonment) this

did not mean that any fine which exceeded $500.00

would automatically cast the offense into the serious

category. Muniz involved a $10,000.00 fine which was

91

imposed against a labor union in a contempt type pro-

ceeding. The High Court did not set any outside fine

standard for jury purposes in Muniz, but it did indicate

that fines are, to some extent, at the bottom of the consid-

erations which are to be weighed.

“It is one thing to hold that deprivation of an indi-

vidual’s liberty beyond a six month term should not

be imposed without the protections of a jury trial, but

it is quite another to suggest that, regardless of the

circumstances a jury is required where any fine

greater than $500 is contemplated. From the stand-

point of determining the seriousness of the risk and

the extent of the possible deprivation faced by a

contemnor, imprisonment and fines are intrinsically

different.” (Emphasis added). Muniz at 477.

Blanton cites Rife v. Godbehere, 814 F.2d 563 (C.A.

1987) where the Ninth Circuit held that the defendant

was entitled to a jury trial on the basis alone that he was

subject to a $1,000 fine pursuant to a charge brought

under an Arizona statute. The reasoning to support this

decision is weak in view of the Muniz decision. It is also

unrealistic in the sense of the economics of our times; a

$500 fine had much greater impact twenty years ago on

an individual defendant than a $1,000 fine would today.

Based upon a reading of the Supreme Court cases

cited above, the City submits that no federal grounds

exist for this Court to grant jury trials for DUI defen-

dants. The fact that Nevada’s statute requires mandatory,

as opposed to discretionary, imposition of imprisonment

is irrelevant, since the Supreme Court stated in Duncan,

supra, that it is the potential, not the actual jail sentence

which is important. The fact that the DUI statute contains

provisions such as mandatory counseling and that a DUI

92

conviction will result in collateral consequences (s‘ch as

the loss of a driver’s license or enhanced punishme \t on

a second offense) is insufficient to mandate a jury trial.

Frank, supra, contained an obvious statement of the High

Court that regulatory provisions of sentencing, such as

probation, do not take an offense out of the “petty”

category if it is otherwise treated as a “petty” offense,

that is, punishable by no more than six months in jail. As

noted in Baldwin, supra, the fact that the conviction could

result in serious consequences and repercussions does

not control \.hether the crime is classified as “petty” or

“serious.” Finally, the mere fact that Nevada has chosen

to impose a $1,000 fine, instead of a $500 fine, does not

automatically remove the offense from the “petty” cate-

gory, especially given the rulings of the Nevada Supreme

Court in this area, specifically in State v. Smith, supra.

Considering the above analysis, it is difficult to agree

with the reasoning of Judge Reed in Bronson. With ail due

respect to Judge Reed, the City submits that his opinion

in Bronson presents an incomplete statement of the case

law in this area and the rationale and policies set forth by

the United States Supreme Court.

Judge Reed relied heavily upon two Ninth Circuit

cases dealing with jury trial issues. United States v. Craner,

652 F.2d 461 (9th Cir. 1976) and United States v. Sanchez-

Meza, 547 F.2d 461 (1976). The City’s reading of both of

these cases is that they represent attempts by the Ninth

Circuit to expand the concept and scope of jury trials way

beyond that established by the United States Supreme

Court. The City does not agree with the reasoning of the

Ninth Circuit in either case and argues that while the

Ninth Circuit (absent an overriding ruling from the

93

Supreme Court) can create a greater scope of jury trials in

the federal courts under its appellate jurisdiction, its

rulings are not binding upon the State of Nevada and are

in direct contradiction with the case law established by

the Supreme Court, which is binding upon Nevaiia.

Moreover, both Craner and Sanchez-Meza concerned feci-

eral offenses taking place on federal land. Thus, ister-

pretation of federal statutory law was involved, not state

law.

Not every federal court agrees with Craner. In United

States v. Fletcher, 505 F.Supp. 1053 (1981), the United

States District Court for the Western District of Virginia

not only summarily denied a request for a jury trial

involving a DUI committed in a federal park, but also

rejected the Craner concept of looking beyond the autho-

rized penalties. Indeed, the Fletcher Court specifically

held that:

.. . the revocation of the right to operate a vehicle

upon the highways, . . . is not a part of the punish-

ment provided by law to be fixed by a court or jury

upon conviction of a crime. The revocation

... follows as a consequence and effect of conviction

for crime. Fletcher at 1054.

Another federal court has rejected the concept that

courts should consider the treatment of the offense at

common law or whether the offense is malum in se, again

in direct conflict with Craner and Sanchez-Meza. The

United States District Court for the District of Puerto

Rico, in Matos v. Rodriquez, 440 F.Supp. 673 (1976), firmly

rejected the “nature of the offense” method of classifying

crimes for purposes of jury frials. The Court gave great

94

weight to the Supreme Court decision in Frank, supra, and

stated that:

... the Court reiterated the importance of the sever-

ity of the maximum sentence and disregarded the

possibility of an extended period of probation as a

criterion for concluding that an offense was serious.

It concluded that of the objective indicators, the most

important is the severity of the sentence. In cases

where the maximum penalty has been provided for

in a statutory m nner, the legislature has been said to

include within the penalty im} osed < statement about the

seriousness of the offense. . . .

_. . It is thus clear that the doctrine of District of

Columbia v. Colts, supra, wherein the primary impor-

tance was given to the nature of the offense, is no

ionger applicable. Matos at 676, 677.

Even the Ninth Circuit has had occasion to backtrack

with regard to its decision in Craner. In United States v.

Arbo, 691 F.2d 862 (1982), the Ninth Circuit referred to its

policy in Craner. In Arbo, the defendant was charged with

a violation of both federal statute and a federal regula-

tion. The Court noted that its decision in Craner was

based on “extraordinary circumstances”, that is the lack

of legislative judgment because the offense arose from a

federal regulation. But in Arbo, the Court said no extraor-

dinary circumstances existed since the defendant was

charged under a federal statute, which did show legisla-

tive judgment that the crime should be a petty offense

and triable without a jury.

In addition to the Arbo decision, the Ninth Circuit

has, in one other opinion, apparently recanted, at least in

part, the doctrine in Craner. In United States v. Jenkins, 734

F.2d 1322 (1983), the Court found that the imposition of a

two year probation period under the Youth Corrections

95

Act did not create extraordinary circumstances warrant

ing a jury trial; that this collateral consequence did not

remove the offense from the petty category because it

was punishable by not more than six months in jail.

(Jenkins involved a simple assault.)

Given the detailed review of the case law contained

in this Brief of the decisions of the United States Supreme

Court, together with an in depth reading of the decisions

of the Ninth Circuit, which are often ambiguous at best, it

is evident that DUI offenders in the State of Nevada, and,

more specifically, those charged in the Municipal Court of

North Las Vegas, do not have a constitutional right to a

trial by jury.

For the reasons heretofore stated, the City requests

that the Court uphold the decision and order below and

remand the case to the Eighth Judicial District Court for a

trial do novo without a jury. The nature of a misde-

meanor DUI offense in Nevada has not changed from

what is categorized as “petty” to that of “serious”. The

maximum authorized punishment remains at six months

in jail, which constitutes a clear line of demarcation

between petty and serious offenses.

DATED this 30th day of July, 1987.

ROY A. WOOFTER, CITY ATTORNEY

CITY OF NORTH LAS VEGAS

: /s/ Mark L. Zalaoras

ARK L. ZALAORAS

ey By Fon Blvd.

North Las , NV 89030

—— for pondents and

Real Party in Interest

CERTIFICATE OF MAILING

I hereby certify that I served a copy of the foregoing

Respondents’ Answering Brief by placing a true and cor-

rect copy of the same for mailing sealed in an envelope

properly addressed for mailing in the United States Mail

at North Las Vegas, Nevada, postage prepaid, addressed

to:

JOHN J. GRAVES, JR., ESQ.

GRAVES, LEAVITT & KOCH

601 South Sixth Street

Las Vegas, Nevada 89101

ATTORNEY GENERAL'S OFFICE

State Mailroom Complex

Las Vegas, Nevada 89158

DATED this 30th day of July, 1987.

/s/ Sherry Berrett

An Employee of the City of

North Las Vegas

97

IN THE SUPREME COURT OF THE STATE OF NEVADA

MELVIN R. BLANTON, ) No. 17940

Appellant,

vs.

THE NORTH LAS VEGAS

MUNICIPAL COURT, NORTH LAS

VEGAS, NEVADA AND THE

HONORABLE GARY DAVIS,

MUNICIPAL JUDGE THEREOF,

Respondents.

CITY OF NORTH LAS VEGAS,

NEVADA,

Real Party in

Interest.

Nee ee ee ee ee ee ee ee ee ee

APPELLANT'S REPLY BRIEF

(Filed Sept. 2, 1987)

JOHN J. GRAVES, JR., ESQ. MARK L. ZALAORAS, ESQ.

GRAVES, LEAVITT & KOCH Deputy City Attorney

601 South Sixth Street 1301 East Lake Mead Blvd.

Las Vegas, Nevada 89101 North Las Vegas, NV 89030

(702) 385-7277

Attorney General’s Office

State Mailroom Complex

Las Vegas, Nevada 89158

Counsel for Appellant Counsel for Respondents

98

TABLE OF CONTENTS

TABLE OF AUTHORITIES............

I LEGAL MEMORANDUM .............

TET CONCLUIGION occ ccccccccccscccescus

MT APPUNUIA.. cccccccocscccoccscesssnes

IV CERTIFICATE OF SERVICE BY MAIL.

TABLE OF AUTHORITIES

CASES

Page No

Casper v. Cheatam No. 86-307, 07/21/87 Wyomin

Supreme Court 41 CrlL 2354 (08/12/8

(Attached as Appendix).................

Landry v. Hoepfner 818 F.2d 1169 (CA5 1987).......... 1

Landry v. Hoepfner 822 F.2d 510 (CA5 1987)

1.

LEGAL MEMORANDUM

Counsel, in this Reply Brief, wishes only to point out

two (2) recent cases which have allowed jury trials in DUI

cases. The first is Casper v. Cheatam, No. 86-307, 07/21/87,

a Wyoming Supreme Court case which has yet to be

reported. The case is reported at 41 CrL 2354 (08/12/87)

and a copy of that page is attached for the review of the

Court in the Appendix. The majority appears to have

based the finding on the Wyoming Constitution, but

requires a jury trial or demand even when no jail term is

possible upon conviction, and only a maximum fine of

$750.00 can be imposed.

The second case is Landry v. Hoepfner, 818 F.2d 1169

(CAS 1987) wherein a three-judge panel held that the

Sixth Amendment required a jury trial in a DUI case in

Louisiana. There, upon conviction, the Court reasoned, a

six (6) month jail term is possible, a fine of up to $500.00,

serious economic repercussions can occur (increased

insurance rates), public opprobrium, and a sixty (60)-day

suspension of the driver’s license. The reasoning of this

case is impeccable. Landry was ordered set for en banc

hearing, 822 F.2d 510 (CA5 1987).

Il.

CONCLUSION

State and Federal cases overwhelmingly allow jury

trials in DUI cases. The State of Nevada is one of a small

minority of states which have shown reluctance to

100

recognize the right. This Court should require a jury trial

upon demand in a first-offense DUI case.

DATED this 28th day of August, 1987.

GRAVES, LEAVITT & KOCH

/s/ John J. Graves, Jr.

JOHN J. GRAVES, JR., ESQ.

601 South Sixth Street

Las Nevada 89101

(702) 7277

Att for Defendant/

A lant MELVIN BLANTON

IN THE SUPREME COURT OF THE STATE OF NEVADA

CITY OF NORTH LAS VEGAS, ) No. 18065

NEVADA )

Petitioner, .

vs. )

THE EIGHTH JUDICIAL DISTRICT ?

COURT OF THE STATE OF NEV- ?

ADA, IN AND FOR THE COUNTY ?

OF CLARK, AND THE HONOR- )

ABLE ADDELIAR D. GUY, DIs- ?

TRICT JUDGE,

Respondents.

and

MARK D. FRALEY,

Real Party in

Interest.

ee ee ee ee ee ee

101

WRIT OF CERTIORARI

(Filed Dec. 31, 1987)

TO: The Honorable Addeliar D. Guy, Judge of the

Eighth Judicial District Court:

WHEREAS, this Court having made and filed its

written decision that a writ of certiorari issue,

NOW, THEREFORE, you are compelled to vacate

your order reversing Mark D. Fraley’s conviction and to

enter a new order consistent with the decision of this

court; in your case entitled Mark D. Fraley v. City of

North Las Vegas, Case Number C76512.

WITNESS The Honorables E. M. Gunderson, Chief

Justice, Thomas L. Steffen, Cliff Young, Charles E.

Springer and John C. Mowbray, Associate Justices of the

Supreme Court of the State of Nevada, and attested by

my hand and seal this 31st day of December, 1987.

(SEAL)

Judith Fountain

Clerk

/s/ Jeanne C. Richard

Chief Deputy Clerk of the

Supreme Court

102

SUPREME COURT OF THE UNITED STATES

OFFICE OF THE CLERK

WASHINGTON, D.C. 20543

June 20, 1988

Mr. John Julian Graves Jr.

601 South Sixth Street

Las Vegas, NV 89101

Re: Melvin R. Blanton and Mark D. Fraley, v. City of

North Las Vegas, Nevada No. 87-1437

Dear Mr. Graves:

The Court today entered the following order in the

above entitled case:

The petition for a writ of certiorari is granted.

Very truly yours,

J Spaniol, Jr., Clerk

Ie joseph F. Spaniol, Jr.

103

SUPREME COURT OF THE UNITED STATES

OFFICE OF THE CLERK

WASHINGTON, D.C. 20543

June 20, 1988

Mr. John G. Watkins

333 N. Rancho Drive, #633

Las Vegas, NV 89106

Re: Melvin R. Blanton and Mark D. Fraley, v. City of

North Las Vegas, Nevada No. 87-1437

Dear Mr. Watkins:

The Court today entered the following order in the

above entitled case:

The petition for a writ of certiorari is granted.

Very truly yours,

Joseph F. Spaniol, Jr., Clerk

/s/ Joseph F. Spaniol, Jr.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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