Reply Brief — Blanton v. North Las Vegas

caiiinimanemnemiaeeeed :

Supreme Court, U.S.

~ FILED

. SFP 27 1988

JOSEPH F. SPATIOL, MR

No. 87-1437

In The

Supreme Court of the United States

October Term, 1987

+

MELVIN-R. BLANTON and

MARK D. FRALEY,

Petitioners,

vs.

CITY OF NORTH LAS VEGAS, NEVADA,

Respondent.

~—

ON WRIT OF CERTIORARI

TO THE SUPREME COURT OF

THE STATE OF NEVADA

+

PETITIONERS’ REPLY BRIEF ;

+

JOHN J. Graves, Jr.

601 South Sixth Street

Las Vegas, Nevada 89101

(702) 385-7277

Attorney for Blanton

Joun G. WarkINs

333 North Rancho Rd., #633

Las Vegas, Nevada 89106

(702) 646-3155

Attorney for Fraley

Counsel for Petitioners

QUESTION PRESENTED FOR REVIEW

Whether the misdemeanor offense of driving a vehi-

cle while intoxicated under Nevada state law is a

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

ii

TABLE OF CONTENTS

Page

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

TABLE OF CONTENTS. ...........00cecceeeeeeeees ii

TABLE OF AUTHORITIES.............0:0eeeeeeees iii

ARGUE 0.00 cvcvccccccvccddeccnceeussteansvanee 1

I Post-Baldwin Tests Used to Determine and

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

II This Court Has Determined That DWI is a

Serious Offense ............sceeeceeeeeeeeeees 3

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

IV The “Bright-Line” Test.................:eeeee 9

V_ Classification of the Offense by the States and

Federal Government.............eeeeeeeeeees 10

CONCLAIIIIIN « ccccccccccscvcbssssnsoceseennennene 13

——

iii

TABLE OF AUTHORITIES

Page

Cases

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

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

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

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

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

Se EP I PT GUUUED obi cceccccsccsccccccccccess 2

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

Landry v. Hoepfner, 840 F.2d 1201 (CA5 1988)...... 2,3

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

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

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

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

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

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

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

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

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

Welsh v. Wisconsin, 466 U.S. 740 (1984).......... 2, 5, 6

Nn ok cc ccccccbecccccccoes 6

STATUTES

EE ERC Ud ibe cesscvedeccccbccccces 11

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

ARGUMENT

I.

Post-Baldwin Tests Used to

Determine and Analyze the Right to Trial by Jury

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

in determining whether a right to trial by jury existed for

criminal contempt pursuant to §10(1) of the Labor Man-

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

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

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

be tried without a jury, but contemnors in serious

contempt cases in the federal system have a Sixth

Amendment right to a jury trial;

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

ard to the ment imposed, is not a serious

offense absent tive declaration to the contrary;

(3) lacking legislative authorization of more serious

t, a sentence of as much as six months in

prison, plus normal periods of probation, may be

im without a jury trial;

(4) but imprisonment for longer than six months is

constitutionally impermissible unless the contemnor

has been given the opportunity for a jury trial.

Paragraph 2 is a restatement of the “nature of the

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

consider punishment or penalties other than potential

incarceration and fine. Muniz was decided the year after

Codispoti v. Pennsylvania, 418 U.S. 506 (1974) which stated

at 418 U.S. 512:

Since that time, our decisions have established a

fixed dividing line between petty and serious

offenses: those crimes carrying a sentence of more

than six months are serious crimes and those carry-

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

1

This author concludes that this Court utilized the

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

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

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

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

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

test, therefore, remains viable, and the consideration of

penalties other than incarceration and fine has been

legitimated.

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

less home DW] arrest case, Justice White joined by Justice

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

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

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

incarceration and fine, one factor was found to be the

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

factor was the consequence of mandatory driver’s license

revocation upon conviction of DWI. Cases relied upon as

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

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

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

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

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

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

These lower federal court decisions, supra, as well as

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

(CA4 1986) and Landry v. Hoepfner, 840 F.2d 1201 (CA5

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

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

offense” test, penalties beyond incarceration and fine,

and the right to trial by jury in other State jurisdictions

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

month standard. The lower federal courts seem reticent

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

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

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

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

line” test, and argued it away.

Amicus State of Nevada complains that Petitioners’

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

a “collateral consequences” test because the DWI offense

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

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

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

alty and other factors about equally in determining the

seriousness of the offense.

This Court is urged by Petitioners to retain the reli-

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

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

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

There are certain offenses, like the Nevada DWI law,

which cannot be properly catalogued under the “bright-

line” umbrella solely; such offenses cannot be isolated

from other real, societal factors and forces that unques-

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

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

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

imagine a petty crime that would burst onto the Ameri-

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

and even that offense has taken 10 years to ripen.

This Court Has Determined That DWI

is a Serious Offense '

In cases decided by this Court after Raldwin v. New

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

societal consequences has been painted in somber tones.

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

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

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

evidence of guilt, the majority prefaced its decision with

these words:

The situation underlying this case — that of the drunk

driver — occurs with tragic frequency on our Nation’s

highways. The carnage caused by drunk drivers is

well documented and needs no detailed recitation

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

— with the problem that the state courts have, has

tedly lamented the tragedy. See near fly

Al ram, 352 U.S. 432, 439, 77 S.Ct. 408, 412, TL 2d

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

ways, most of which should be avoidable, now

reaches the astounding figures only heard of on the

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

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

reo (deploring = irresponsibility and the

frightful carnage it spews upon our highways”);

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

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

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

highways of this Nation exceeds the death toll of all

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

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

nizing the “compelling interest in highway safet

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

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

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

case, itself amply answers amicus State of Nevada’s asser-

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

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

itself does not necessarily injure another person and is

not universally considered as immoral... ”

Se

5

This Court has also expressed the belief that the

prevention of drunken driving was properly a major con-

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

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

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

an act that is dangerous to others who are law abiding

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

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

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

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

without authority, that the alternate method of prosecut-

ing drunk driving cases which focuses on 0.10% or more

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

sizes evidence of driving difficulty, field sobriety tests,

and physical signs of intoxication, indicates that drunk

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

alternate, easily provable method of conviction attests the

firm intent of every State to convict drunk drivers and

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

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

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

the imminently logical choice to crack down on offenders

by a surer, more efficient method of proof.

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

related issues, clearly reflect the Nation’s perception that

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

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

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

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

case from this Court which states that DWI, as presently

constructed in most State jurisdictions and by the federal

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

however, cited several cases where DWI has been held to

be an offense malum in se (Br. 22), as well as indicative

comments set out in the Neville and Welsh cases, above.

Ill.

The impact of Nationwide DWI Jury Trials

First, only a handful of States do not allow the right

to trial by jury in DWI prosecutions. See Appendices of

Petitioners, amici-United States and State of New Jersey.

Any decision made by this Court in favor of DWI jury

trials will have little national impact. The only State

directly affected will be Nevada, although five or six

States will have to re-evaluate their existing DWI laws.

Second, neither Respondent nor its amici have

responded to statistics provided by Petitioners which

indicate a waiver rate of upwards of 90% in misdemeanor

trials. See Appendices “C” and “D”, Opening Brief. In

fact, in the State of Nevada itself, Washoe County (Reno

Justice Court), as pointed out by amici A.C.L.U. (Br.

59-60), jury trials in DWI offenses were set in motion in

1986. In that year 707 individuals were charged but only

one jury trial was held at an expense of $284.70. In 1987,

897 individuals were charged, and only 12 jury trials

conducted at a total cost of $4,961.36. The waiver rate in

1987 was, therefore, over 98%. Similar high waiver rates

were recorded in Baldwin v. New York, 399 U.S. 66, 74 n.22

(1970).

Third, amicus State of New Jersey paints a gloomy

picture of “massive delays” in its judicial system if jury

trials were required, thereby impinging on the right to

speedy trial. (Br. 26) Amendment VI, United States Con-

stitution. Not only is this supposition unsupported in fact

>

in New Jersey’s brief, but it fails to account for uninter-

rupted functioning of larger, more complex judicial sys-

tems found in the States of New York, California, Illinois,

and elsewhere, where DW] jury trials have been allowed

for decades.

Further, fiscal impact, also a complaint of Respon-

dent and its amici, is a factor that must be weighed along

with other factors, it is not of controlling weight. Mathews

v. Eldridge, 424 U.S. 319, 348 (1976).

In the area of trial by jury, a more pervasive dedica-

tion is found in the cases of this Court. As stated in

Duncan v. Louisiana, 391 U.S. 145, 156 (1968):

Beyond this, the jury trial provisions in the Federal

and State Constitutions reflect a fundamental deci-

sion about the exercise of official power - a reluc-

tance to entrust plenary powers over the life and

liberty of the citizen to one judge or to a group of

judges. Fear of unchecked power, so typical of our

State and Federal Governments in ot respects,

found expression in the criminal law in this insis-

tence upon community participation in the deter-

mination of guilt or innocence. The deep

commitment of the Nation to the right of jury trial in

serious criminal cases as a defense against arbitrary

law enforcement qualifies for protection under the

Due Process Clause of the Fourteenth Amendment,

and must therefore be respected by the States.

It may further be noted that fiscal considerations

have never been injected into the calculus of the right to

trial by jury in the previous cases of this Court.

Amicus State of New Jersey (Br. 18), citing McMillan

v. Pennsylvania, 477 U.S. 79 (1986), argues that a court’s

consideration of mandatory sentencing minima as found

in Nevada’s DWI statute “ . . . would illogically compel a

jury trial with respect to the offense solely because, in a

given case, the prosecutor alleges the existence of

. aggravating factors and thus seeks the minimum

statutory penalty . . . ” McMillan is mischaracterized in

this context. That case forbade a jury trial at a sentencing

hearing where the State proved a fact, to wit, that the

defendant “visibly possessed a firearm.” Upon that find-

ing, by a preponderance of the evidence, a mandatory

term was imposed. Here, no fact is proved at sentencing,

the mandatory minimum sentence is automatic. Further,

Nevada DWI law does not require any aggravating cir-

cumstances to be pled, except for subsequent offenses

after first conviction. More importantly, mandatory pun-

ishments are simply a factor for this Court to consider in

determining whether the offense of DWI is serious.

The dire consequences prophesied by the States of

Nevada, New Jersey, and Louisiana are, in a constitu-

tional sense, a tempest in 2 teapot, and unsupported by

hard data. Petitioners, on the other hand, as the peti-

tioner in Baldwin, supra, have set out the expected high

waiver rate of DWI jury ‘rials, minimal costs in Nevada,

and a constitutional imperative and commitment to trial

by jury where fiscal impact, although a factor, does not

carry controlling weight. The verbal hand-wringing of

the States in their amici briefs brought on by fears of costs

and court congestion are more imagined than real. The

plain truth is that in Nevada presently, DWI trials are

assembly line swift, cheap, and conviction rates are high

(82%). It is not hard to imagine why Nevada would hate

to give this up.

9

IV.

The “Bright-Line” Test

Amici for Respondent and the Respondent itself urge

this Court in the strongest terms to stubbornly follow a

“bright-line” test enunciated in Baldwin, supra, and to

abandon other tests used to determine the right to trial by

jury. This reasoning fails to take into account that

“ ... the boundaries c‘ the petty offense category have

always been ill-defined, if not ambulatory.” Duncan v.

Louisiana, 391 U.S. 145, 160 (1968). Basically this Court is

being urged to paint itself into a corner by using one test

to evaluate every offense.

The Baldwin “bright-line” test works fine when incar-

ceration and fine are the only penalties, and the nature of

the offense does not indicate a serious offense. But when

other significant penalties appear, and the nature of the

offense indicates seriousness, a meaningful argument can

be made for the right to trial by jury. A review of States’

practices in regard to the grant of jury trial should also be

made as the third part of the litmus test.

For the Court to rule otherwise, and rest upon the

“bright-line” standard of Baldwin, will send a message to

the States that the “packing” of punishment “under the

line” is condoned as long as the six-month barrier is not

punctured. The “bright-line” standard is convenient and

sure, but in certain offenses, as in the DWI case at bar, the

“deep commitment” of this Nation to the right of trial by

jury cannot be sacrificed to a sterile “bright-line” require-

ment. It must be remembered that the “bright-line” stan-

dard is just one of this Court’s standards, not the

standard. To adopt one test to the exclusion of the others

would be myopic.

10

Amicus State of New Jersey contends that federal-

state disputes will arise if this Court adopts a test or tests

other that a “bright-line” standard. Again, this “flood-

gate” argument does not withstand analysis. Other than

DWI, counsel for Petitioners know of no State petty

offense which presses for “serious” status. Even this DWI

offense has taken almost a decade to mature to its present

posture as a serious crime. But the last answer is that the

lower courts can respond to requests for jury trial made

in criminal offenses which develop into serious offenses

over the course of years.

Amicus State of New Jersey, indeed, concedes that

“(o)ther tests and factors proposed by petitioners and

amici curiae national and Nevada chapters of the Ameri-

can Civil Liberties Union . . . for distinguishing ‘petty’

from ‘serious’ offenses are presumably capable of

“bright-line” formulation, but are laden with negative

consequences ...” Amicus then argues that the decision

to allow trial by jury should be left to the legislatures.

Vv.

Classification of the Offense by the

States and Federal Government

Amicus State of New Jersey (Br. 24-25) argues that 22

States punish DWI with potential incarceration beyond

the six-month Baldwin standard, 4 States have determined

that DWI is a “serious” offense independent of relevant

penalties, 6 States do not allow DWI jury trials, and 19

States do not recognize Baldwin's petty/serious dichot-

omy for any offense. The point is asserted that these

latter 19 jurisdictions are, as support for a national con-

sensus, useless as to those jurisdictions’ views as to the

11

seriousness of drunk driving. This argument, at first

blush, possesses appeal, but upon closer analysis the

argument fails. Because a State chooses to allow a defen-

dant the right to trial by jury in DWI and other non-

serious offenses, means no more than that State has deter-

mined that all criminal offenses are serious, and worthy

of the right to trial by jury. The reasoned voices of 19

States cannot be just dismissed. It is less a question of

whether these 19 States consider DWI to be a serious

offense, and more a question of 45 States absolutely

allowing jury trials for DWI defendants. In the vast

majority of States, a defendant has a jury trial option

(even in Reno, Nevada), but in 6 States the unlucky

defendant has no option.

The federal government in 18 U.S.C. §1 punishes

petty offenses with as much as 6 months imprisonment

and a $5,000 fine. This Court, however, has specifically

determined that that definition cannot be accorded tal-

ismanic significance. Muniz v. Hoffman, 422 U.S. 454, 477

(1975).

Respondent and its amici argue that this Court in

Martin v. Ohio, 480 U.S. 228, 107 S.Ct. 1098 (1987), reh’g

denied 107 S.Ct. 1913 (1987), in not ruling on the basis of

sheer numbers of States which have adopted a rule,

should thereby adopt a similar posture in this case. First,

Petitioners do not urge the numbers of States which allow

the right to jury trial as a sole determining test, but as

one test in the ultimate determination that DWI is a

serious offense. Second, the sense of this Court’s cases

indicates national uniformity as a defined goal. Baldwin v.

New York, 399 U.S. 66, 70-71 (1970). National uniformity is

12

turned upside-down if 6 States can mandate the federal

constitutional rule for the 45.

This Court has further found that although classifica-

tion is a matter for the States, that

In the absence of an explicit constitutional provision,

the definitional task necessarily falls on the courts,

which must either pass upon the validity of 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 question in the first instance.

The State of Nevada, by way of the penalties avail-

able for DWI, has implicitly assigned that offense to the

serious category. Respondent and its amici in their briefs,

have been strangely silent about whether those punish-

ments call for a right to trial by jury. This Court can

review Appendix “B” of Petitioners’ Opening Brief for

criminal sanctions and civil (administrative) actions asso-

ciated with a DWI conviction for the States as a whole.

Nevada’s DWI law, of course, contains added punish-

ments not listed in this table.

~~

eg

13

CONCLUSION

Wherefore, for the foregoing reasons, Petitioners

pray that the judgment below be reversed.

Respectfully submitted:

Graves, Leavitt & Kocu

Esa. Joun J. Graves, Jr., Eso.

Rancho Road, #633 601 South Sixth Street

Las Vegas, Nevada 89101

(702) 646-3155 (702) 385-7277

Att for Petitioner Attorney for Petitioner

Mark D. Fraley Melvin Ray Blanton