Amicus Curiae Brief — Blanton v. North Las Vegas

In the Supreme Court of the Gnited states

OCTOBER TERM, 1988

MELVIN R. BLANTON AND MArK D. FRALEY. PETITIONERS

Vv.

CITY OF NorTH LAS VEGAS, NEVADA

ON WRIT OF CERTIORARI

TO THE SUPREME COURT OF NEVADA

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENT

CHARLES FRIED

Solicuor General

EDWARD S.G. DENNis, JR

Acting Assistant Attorney General

WILLIAM C. BRYSON

Deputy Solicitor General

MICHAEL R. LAZERWITZ

Assistant to the Solicitor General

LOUIS M. FISCHER

Attorney

Department of Justice

Washingion, D.C. 20530

(202) 633-2217

QUESTION PRESENTED

Whether the Sixth Amendment, as applied to the States

through the Fourteenth Amendment, requires a jury trial

for the offense of driving under the influence of alcohol,

where the maximum penalty is a term of six months’ im-

prisonment.

(1)

TABLE OF CONTENTS

Page

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Ne cc ccccncecceccccsess 2

ees eee cecaccccncecesseces 5

Argument:

Petitioners were not entitled to a jury trial on the charge

that they were driving under the influence of alcohol .... . 7

A. An offense punishable by a maximum term of six

months’ imprisonment is a petty offense triable with-

EES MEG e eGo ace sceccccccsesccses 7

B. A DUI offense, punishable by a maximum term of six

months’ imprisonment, should be treated as a petty

offense triable without a jury .................... 17

EE SEE OT TTT ee 26

UR CEGURGEGEGESEb Seu Sdebcscccccceccccccs la

TABLE OF AUTHORITIES

Cases:

Argersinger v. Hamlin, 407 U.S. 25 (1972) ............. 9

Bairnsfather v. Louisiana, No. 86-5656 (Apr. 6, 1987)... . 17

Baldwin v. New York, 399 U.S. 66 (1970) .............. 4-5, 9,

14, 15, 16, 19, 20

Bioom v. lilinois, 391 U.S. 194 (1968) ...... 2... 06... 15

Brady v. Blair, 427 F. Supp. 5 (S.D. Ohio 1976) ......... 21

Brenner v. City of Casper, 723 P.2d 558 (Wyo. 1986) .... 23

Bronson v. Swinney, 648 F. Supp. 1094 (D. Nev. 1986). 5, 21, 22

Callan v. Wilson, ‘27 U.S. $40 (1888) ................ 7,9, 10

Cheff v. Schnackenberg, 384 U.S. 373 (1966) ........... 15

City of Casper v. Cheatham, 739 P.2d 1222 (Wyo. 1987) . 21, 23

Codispoti v. Pennsylvania, 418 U.S. 506 (1974) ...... 15, 22, 25

Commonwealth v. Fischi, 363 Pa. Supe;. >>, 525 A.2d

EE 21

District of Columbia v. Clawans, 300 US. 617 (1937)... . 11, 12,

15, 16, 19

District of Columbia v. Colts, 282 U.S. 63 (1930) ..... 4, 10, 18

Duncan v. Louisiana, 391 U.S. 145 (1968) .... | ._ on

13, 15, 16, 19, 20

(111)

IV

Cases — Continued: Page

Dyke v. Taylor Implement Co., 391 U.S. 216 (1968) ..... 1s

Fisher v. State, 305 Md. 357, 504 A.2d 626 (1986) ....... 24

Frank v. United States, 395 U.S. 147 (1969) ......... 13, 14, 19

Hicks v. Miranda, 422 U.S. 332 (1975) ................ 17

Landry v. Hoepfner, 840 F.2d 1201 (Sth Cir. 1988),

petition for cert. pending, No. 88-5043 ........ 20, 21, 23, 24

Matos v. Rodriguez, 440 F. Supp. 673 (D.P.R. 1976) .... 21

Muniz v. Hoffman, 422 U.S. 484 (1975) ............... 22

Parham v. Municipal Court, 86 S.D. 531, 199 N.W.2d

onc 6g4acbheudaluanehnses canecduneseoe 24

Reothweiler vy. Superior Court, 100 Ariz. 37, 410 P.2d

Gy EE Scans ncnoterestannndss pbennsdent¥eccee. 21, 23

Schick v. United States, 195 U.S. 65 (1904) ............. 8-9, 11

Southern Railway Co. v. Seaboard Allied Milling Corp.,

GS Fs ED Sbbnceshksdeseciose tcc vaviee. 17

State v. Amick, 173 Neb. 770, 114 N.W.2d 893 (1962)... . 24

State v. Henderson, 491 So.2d 647 (La. 1986) ........... 21

State v. Holliday, 109 R.1. 93, 280 A.2d 333 (1971) ...... 21

State v. Linnehan, 197 N.J. Super. 41, 484 A.2d 34 (App.

Div. 1984), cert. denied, 99 N.J. 236, 491 A.2d 723

GREED b ccvcsdndstncenusadetetie ceteteeteckies << 21

State v. Morrill, 123 N.H. 707, 465 A.2d 882 (1983) ..... 21

State v. O’Brien, 68 Haw. 39, 704 P.2d 883 (1985) ....... 21, 23

State v. Rodgers, 91 N.J.L. 212, 102 A. 433 (1917) ...... 18

State v. Smith, 99 Nev. 806, 672 P.2d 631 (1983) ........ 21

State v. Sweat, 78 N.M. 512, 433 P.2d 229 (1967) ....... 21

Thomas v. State, 331 A.2d 147 (Del. 1975) ............. 21

United States v. Barnett, 376 U.S. 681 (1964) ........... 15

United States v. Craner, 652 F.2d 23 (9th Cir. 1981) ... 5, 21, 22

United States v. Fletcher, 50S F. Supp. 1053 (W.D.Va.

ee ee le

United States v. Jenkins, 780 F.2d 472 (4th Cir.), cert.

i es ao occccccbcceascecesecs

United States v. Woods, 450 F. Supp. 1335 (D. Md.

DE -n 6445 04 HAS RUOURORME MEW es 000 cccevce

Weish v. Wisconsin, 466 U.S. 740 (1984) ...............

Whirley v. State, 480 So.2d 836 (Fla. 1984) .............

21

Vv

Constitution, statutes, regulations and rules: Page

U.S. Const.:

EE ELS ee ee, a ee 8,9

lt ctkt ine dedi eheaitievdtd eect ts dantiees 5,7

ee aa i, oes i a wel 4, 5, 9, 21

ee Ee ee ed on gn 640 hbaeenl 4,9, 21

Assimilative Crimes Act, 18 U.S.C. 13 ................ l

Judiciary Act of 1789, ch. 20, § 9, 1 Stat. 76-77 ......... 16

i es cca s ba 22

Tee ec ieeeonene 22

a ET EG BP 22

i eed en eckeeneensestca tas he 16

EE ee 1, 6, 16

18 U.S.C. (Supp. IV) 3581(b)(7) .... 2 oe 1, 6, 16

ey I og occ cccccccccscenes 1, 6, 16

i I EE oc occ ncccccccceseses 1, 6, 16

Nev. Rev. Stat. Ann. (Michie 1986 & Supp. 198):

ee ene cn eees nue ses 9000s 3,4

er cc teGuG ehh onnasscneses cess 3

I: do ho i ds oars 3

ee os Ose ul cbve hanes beeen 2

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Ee 2

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occ dadededad sseseeeeununen 3

Ee ee ee, See 3

36 C.F.R.:

i eka cu aeeebeons 2

a ii ia ee ee ee ee ek 2

A Si Re ek ee eet wanes « 2

a he ee cen 2

NR GARR Ae ny Oa a 2

Section 4.20a) ............:; 2

ee ae teak. debuws 2

i ee ee are 2

& 1 are ee 2

etn swWasduaweeh 2

VI

Rules — Continued: Page

RE en ee eee l

Rules of Procedure for the Trial of Misdemeanors before

United States Magistrates, R.2(b)(6) ............ hap 1

Miscellaneous:

Admin. Office of the United States Courts, Annual Re-

oi cds cowese ob taseketeds 2

W. Blackstone, Commentaries on the Laws of England

EEL ene a ee 8

J. Elliot, The Debates in the Several State Conventions,

on the Adoption of the Federal Constitution (2d ed.

1854):

Se Eee bane 66a s 66 CRee emadied cbuh id va 8

Di kedistundeds edeekabadalicenadmeoetens vex 9

2 M. Farrand, The Records of the Federal Convention of

Se es GR oc ecevakdimtbateetueutsedeco sce 8

Frankfurter & Corcoran, Petty Federal Offenses and the

Constitutional Guaranty of Trial by Jury, 39 Harv. L.

Sh na rbrdcddecwalidddiniehaddinténess os 7

J. Madison, The Debates in the Federal Convention of

1787, (G. Hunt & J. Scott eds. photo. reprint 1987).... 8, 9

J. Proffatt, A Treatise on Trial by Jury (1877 & photo.

SE GET & 0 bs oe cvedeucidenereuebadeadenleeauecss 8

In the Supreme Court of the Anited States

OCTOBER TERM, 1988

No. 87-1437

MELVIN R. BLANTON AND MARK D. FRALEY, PETITIONERS

Vv.

CITY OF NORTH LAS VEGAS, NEVADA

ON WRIT OF CERTIORARI

TO THE SUPREME COURT OF NEVADA

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENT

INTEREST OF THE UNITED STATES

This case presents the question whether the Constitution

requires a jury trial for the offense of driving under the in-

fluence of alcohol (DUI), where the maximum penalty for

the offense is a term of six months’ imprisonment. Under

the Assimilative Crimes Act, 18 U.S.C. 13, the United

States prosecutes DUI and other offenses in violation of

state law when those offenses are committed on federal

enclaves. The United States takes the position in such

cases that a jury trial is not required where, unmer ap-

plicable state law, the offense is punishable by a maximum

term of six months’ imprisonment or less and thus wouid

be a “petty offense” as that term is used in the United

States Code. See 18 U.S.C. 19; 18 U.S.C. (Supp. IV)

3581(b)(7), (8) and (9); Fed. R. Crim. P. 54(c); see also

Rule 2(b6) of the Rules of Procedure for the Trial of

Misdemeanors before United States Magistrates. In addi-

(1)

2

tion, the United States prosecutes a variety of petty of-

fenses committed on property subject to the jurisdiction of

the National Park Service. See, e.g., 36 C.F.R. Pts. 1, 2,

3, 4, 5, 7, 12 and 13. Those offenses, which include DUI

(see 36 C.F.R. 4.23(a)) and other traffic violations, carry

penalties of no more than six months’ imprisonment. See

36 C.F.R. 1.3.

The federal courts handle a huge number of petty of-

fense cases each year. During the period sune 30, 1986, to

June 30, 1987, for example, United States magistrates

disposed of 83,092 petty oifenses, 56,763 of which were

traffic offenses. Administrative Office of the United

States Courts, Annual Report of the Director, Tables

M-1A, M-2, at 393, 397 (1987). To extend the right to a

trial by jury in even a small percentage of those cases

would have a marked impact on the administration of

justice in the federal system. Accordingly, the United

States has a direct and substantial interest in the Court’s

resolution of the question presented in this case.

STATEMENT

1. In Nevada, driving under the influence of alcohol

(DUI) is a misdemeanor punishable by a mandatory

minimum term of two days’ imprisonment and a max-

imum term of six months’ imprisonment. Nev. Rev. Stat.

Ann. § 484.3792.1(a)(2) (Michie Supp. 1988). The first of-

fender must pay a mandatory minimum fine of $200 and

may be fined a maximum of $1,000; the first offender

must also attend, at his own expense, ar alcohol abuse

educational course (id. § 484.3792.1(a)(3) and (1)). Upon

conviction, the first offender automatically loses his

license for 90 days (id. § 483.460.1(c)). A state prosecutor

may nc. dismiss a DUI charge in exchange for a guilty plea

to a lesser charge or for any other reason, “unless he

knows Or it is obvious” that there is insufficient evidence

3

to prove the offense (id. § 484.3792.3). Courts may not

suspend sentences or impose probation for DUI convic-

tions (ibid.).'

On June 29, 1986, in North Las Vegas, Nevada, a police

officer arrested petitioner Mark D. Fraley and charged

him with e DUI offense in violation of Nev. Rev. Stat.

Ann. § 484.379 (Michie 1986). After the North Las Vegas

Municipal Court denied Fraley’s demand for a jury trial,

Fraley pleaded guilty. The court sentenced Fraley to five

days’ imprisonment and a $300 fine; the court also ordered

Fraley to attend an alcohol abuse educational course. J.A.

1. On appeal, the Eighth Judicial District Court concluded

that Nev. Rev. Stat. Ann. § 266.550 (Michie 1986) un-

constitutionally deprived the North Las Vegas Municipal

Court of the power to conduct a trial by jury (J.A. 27).

The reviewing court therefore reversed Fraley’s conviction

and remanded the case to the North Las Vegas Municipal

Court for a jury trial (J.A. 25-27).

' If the court does not impose a mandatory prison term, the court

must order the first offender “to perform 48 hours of work for the

community while dressed in distinctive garb which identifies him as

having [committed a DUI offense].”" Nev. Rev. Stat. Ann.

§ 484.3792. 1(aX(2) (Michie Supp. 1988).

A second DUI offense, also a misdemeanor, is punishable by a

mandatory minimum term of ten days’ imprisonment and a maximum

term of six months’ imprisonment. The second offender must also pay

a mandatory minimum fine of $$00 and may be fined a maximum ol

$1,000. Nev. Rev. Stat. Ann. § 484.3792.1(b) (Michie Supp. 1988).

he second offender may also lose his license for one year (id.

483.460. i(b)(5)). A third DUI offense is punishable by a mandatory

minimum term of one year in prison and a maximum term of six years’

imprisonment; the third offender must pay a mandatory minimum

fine of $2,000, and may be fined a maximum of $5,000 (id.

§ 484.3792. i(c)). The third offender also loses his license tor three

years (id. § 483.460. 1(a)(2))

4

On July 18, 1986, also in North Las Vegas, a police of-

ficer arrested petitioner Melvin R. Blanton and charged

him with a DUI offense. The North Las Vegas Municipal

Court denied Blanton’s demand for a jury trial. J.A. 18,

56. Blanton petitioned the Eighth Judicial District Court

for a writ of mandamus. The court denied the petition.

J.A. 20-21.

' 2. Blanton appealed to the Nevada Supreme Court

from the order denying his petition for mandamus. In

Fraley’s case, respondent City of North Las Vegas filed an

Original petition for a writ of certiorari with that court.

J.A. 21-23, 28-52. The court consolidated the cases along

with several others that raised similar issues (J.A. 4-5).

The Nevada Supreme Court held that the Sixth Amend-

ment, as applied to the States through the Four’eenth

Amendment, does not require a jury trial for a DUI of-

fense where the maximum penalty is a term of six months’

imprisonment (Pet. App. 1-46).? Accordingly, the court

remanded Fraley’s case with instructions to reinstate the

conviction and remanded Blanton’s case with instructions

to proceed without a jury trial (id. at 45-46).

The Nevada court noted that in District of Columbia v.

Colts, 282 U.S. 63 (1930), this Court had looked to the

nature of the offense as a guidepost for determining

whether a particular offense required a jury trial.

Nonetheless, the Nevada court read this Court’s more re-

cent decisions such as Baldwin v. New York, 399 U.S. 66

? The court found no state constitutional requivement for a jury

trial, because “the right to a trial by jury under the Nevada Constitu-

tion is coextensive with that guaranteed by the federal constitution”

(Pet. App. 16). The court also disposed of the state law issue raised in

Fraley’s case by concluding that the North Las Vegas Municipal Court

has the authority, despite Nev. Rev. Stat. Ann. § 266.550 (Michie

1986), to conduct jury trials in DUI cases (Pet. App. 12-15).

5

(1970), and Duncan v. Louisiane, 391 U.S. 145 (1968), as

“retreat{ing] from [that] position * * * (toward] a more

workable objective test based on the severity of the max-

imum possible penalty alone” (Pet. App. 22).

While acknowledging that its decision was in conflict

with several federal court decisions,’ the Nevada Supreme

Court concluded ihat those decisions represented “an un-

necessary and unwarranted expansion of the Supreme

Court’s holding in Baldwin,” because “the collateral conse-

quences of a conviction have not been a criterion relied

upon in [its] recent decisions” (Pet. App. 31).* As the

court explained (id. at 31-32):

{T}he [Supreme] Court’s references to “line drawing”

in Duncan and Baldwin, and its increasing relian7e

upon the maximum punishment as the sole criterion

for characterizing offenses as “serious” or “petty,”

suggest that only the maximum punishment for an of-

fense need be examined to determine whether a jury

trial is constitutionally mandated.

SUMMARY OF ARGUMENT

The Constitution provides a right to a jury trial for “all

Crimes” (Art. III, § 2) and in “all criminal prosecutions”

(Amend. V1). Those provisions, however, do not require

> In United States v. Craner, 652 F.2d 23 (9th Cir. 1981), and Bron-

son v. Swinney, 648 F. Supp. 1094 (D. Nev. 1986), the courts held that

the nature of a DUI offense, together with the collateral consequences

from a conviction, render that offense “serious” for purposes of the

constitutional right to jury trial. In Bronson, the district court

specifically held that the Nevada DUI offense must be tried to a jury

(648 F. Supp. at 1098-1101).

* The court also identified certain “policy considerations” to sup-

port its ruling, such as the added expense of conducting jury trials in

misdemeanor DUI cases and the fact that some municipal courts are

staffed by nonlawyer judges (Pet. App. 33-42).

6

jury trials in all criminal cases. In accordance with the

common law practice, this Court has long recognized that

the constitutional right to a jury trial does not apply to

petty offenses. Although the Court in several early deci-

sions looked to the nature of a crime and its common law

roots in determining whether the crime was sufficiently

serious to require a trial by jury, the Court in more recent

cases has focused on the maximum penalty provided for

the offense as the principal criterion in determining

whether the right to a jury trial attaches. That criterion re-

mains the most reliable means of determining whether

society regards a particular offense as sufficiently serious

to trigger the right to a trial by jury.

The historical practice, which is reflected in the federal

definition of a petty offense, 18 U.S.C. 19, 3581(b)(7)-(9),

has been to provide jury trials only for those offenses that

are punishable by more than six months’ imprisonment.

The Court has recognized the six-month maximum penalty

as the appropriate constitutional dividing line between

serious and petty offenses, and we submit that it is the

proper constitutional test for determining when the right

to a jury trial attaches. Only those offenses carrying max-

imum sentences in excess of six months’ imprisonment

must be tried to juries.

In Nevada, as in many States, a first DUI offense is

punishable by a maximum of six months’ imprisonment.

In this case, the Nevada Supreme Court properly focused

on the maximum punishment for a first DUI offense in

concluding that the Constitution did not require that peti-

tioners be accorded a jury trial. We agree that neither the

inherent “nature” of an offense nor the collateral conse-

quences of a conviction provide an accurate indicator of

the seriou. 1ess of the offense for purposes of the constitu-

tional jury trial guarantee. In addition, contrary to peti-

tioners’ assertion (Br. 17-18), current practices among the

-

States in providing jury trials for DUI offenses do not sug-

gest the nature of DUI is such that the Constitution re-

quires that DUI defendants be accorded a jury trial

regardless of the maximum penalty provided tor the of-

fense under the applicable state law.

ARGUMENT

PETITIONERS WERE NOT ENTITLED TO A JURY TRIAL ON

THE CHARGE THAT THEY WERE DRIVING UNDER THE IN-

FLUENCE OF ALCOHOL

A. An Offense Punishable By A Maximum Term OF Six

Months’ Imprisonment Is A Petty Offense Triable Without

A Jury

1. Article 111, Section 2, of the Constitution provides

that “{t}he Trial of all Crimes * * * shall be by jury.” The

Sixth Amendment similarly provides that “[{i}n all criminal

prosecutions, the accused shall enjoy the right to a * o¢

trial, by an inypartial jury * * *.” Although the language is

unqualified, those provisions have not been construed to

require jury trials for all criminal offenses. Rather, the

constitutional language has been “interpreted in the light

of the principles which, at common law, determined

whether the accused, in a given class of cases, was entitled

to be tried by a jury.” Callan v. Wilson, 127 U.S. 540, 549

(1888).

The English common law practice permitted a wide

range of minor or petty criminal offenses to be resolved

summarily before magistrates and justices of the peace

without a jury, and that practice was generally followed in

the American colonies. See Frankfurter & Corcoran, Petty

Federal Offenses and the Constitutional Guaranty of Trial

by Jury, 39 Harv. L. Rev. 917 (1926). As one 19th century

American <, mmentator explained:

it is evident that a jury trial cannot be demanded in

every case where a person is punished for a criminal

offence. Such was not the practice at any time in the

common law, and before the adoption of our Con-

stitutions. * * * [T}here has always been a method for

punishing offences of a minor grade, by inferior

judicial officers * * * without a trial by jury; and

* * * our Constitutions giving the right of a trial by

jury, either expressly or impliedly, refer to this

antecedent practice * * *.

* * * If there be any general rule in common to all it is

this: that in England, under the common law and

various statutes, and here at the time of the adoption

of our Constitutions, the trial of minor offences, such

as * * * the punishment of intoxication, * * * and the

punishment of the violation of laws and ordinances of

local. municipal bodies, was without a jury, before

magistrates generally denominated justices of the

peace.

J. Proffatt, A Treatise on Trial by Jury § 95, at 135-136

(1877 & photo. reprint 1986) (footnote omitted).

The initial draft of the jury trial guarantee in Article III

used the term “criminal offenses.” In place of that term,

the Committee of Style substituted the term “crimes,”

which was understood at the time to denote “such offenses

as are of a deeper and more atrocious dye.” 4 W. Black-

stone, Commentaries on the Laws of England § (ist

American ed. 1772). As the Court noted in Schick v.

’ Available records of the Constitutional Convention of 178/ shed

little light on the decision by the Committee of Style to substitute the

term “criminal offences” for the word “crimes” in the final version of

Article Il. See 1 J. Elliot, The Debates in the Several Siate Conven-

tions, on the Adoption of the Federal Constitution 149, 229, 270, 304

(2d ed. 1854) (Elliot’s Debates); 2 M. Farrand, The Records of the

Federal Convention of 1787, at 144, 173, 187, 433, 438, 576 (rev. ed.

1966); 2 J. Madison, The Debates in the Federal Convention of 1787,

9

United States, 195 U.S. 65, 69-70 (1904), the use of the

term “crimes” appears to confirm the Framers’ intent to re-

tain the practice of summary criminal prosecutions for

petty offenses.°®

2. The Constitution thus creates “the essential if not

wholly satisfactory [task] * * * of determining the line be-

tween ‘petty’ and ‘serious’ [offenses] for purposes of the

Sixth Amendment right to jury trial.” Baldwin v. New

York, 399 U.S. 66, 68 (1970) (plurality opinion). The

Court’s early decisions sought to resolve the question of

the applicability of the jury trial right by focusing on the

seriousness of the offense in question and whether that of-

at 344, 477 (G. Hunt & J. Scott eds. photo. reprint 1987). Addressing

the Virginia Ratifying Convention in 1788, however, James Madison

did state (3 Elliot’s Debates 537 (emphasis in original)) that

{t}he trial by jury is held as sacred in England as in America.

There are deviations from it in England; yet greater deviations

have happened here, since we established our independence, than

have taken place there for a long time * * *. It is a misfortune in

any case that this trial should be departed from; yet in some cases

it is necessary.

* The Court has consistently read the jury trial provisions of Article

Ill and the Sixth Amendment as equivalent. F.g., Callan v. Wilson,

127 U.S. at 549-550. The Sixth Amendment right to jury trial for

serious criminal offenses applies to the States through the Fourteenth

Amendment. Duncan v. Louisiana, 391 U.S. 145, 157-158 (1968).

The Court has addressed the apparent inconsistency between its

treatment of the constitutional jury trial guarantee and other constitu-

tional protections applicable to criminal prosecutions. In Argersinger

v. Hamlin, 407 U.S. 25, 30, 31 (1972) (footnote omitted), the Court,

on the basis of the “historical support for limiting the ‘deep commit-

ment’ to trial by jury to ‘serious criminal cases,’ ” rejected the argu-

ment “that since prosecutions for crimes punishable by imprisonment

for less than six months may be tried without a jury, they may also be

tried without a lawyer.” The Court also made clear that other Sixth

Amendment protections, such as the right to a public trial and the

right to confront witnesses, have historically not been limited to

felonies or serious offenses (id. at 28).

10

fense or an analogous one was triable to a jury at common

law. The Court’s more recent decisions, however, have

discarded the case-by-case effort to assess the seriousness

of an offense or its treatment at common law, in favor of a

simpler and more objective test focusing on the maximum

penalty that the offense carries. The latter inquiry, we sub-

mit, is the proper means of determining whether the Con-

stitution requires that an offense be tried to a jury.

In Callan vy. Wilson, supra, the defendant, a union

musician, was convicted after a bench trial of conspiring

to prevent certain nonunion musicians from working. The

defendant refused to pay a $25 fine and was sentenced to

30 days’ imprisonment. 127 U.S. at 540-542. In determin-

ing whether the defendant was entitled to a jury trial, the

Court looked only to “the nature of the crime of con-

spiracy at common law” (id. at 556). Finding that con-

spiracy “is by no means a petty or trivial offence” (id. at

555), but instead “is an offence of a grave character” (id.

at 556), the Court concluded that the offense must be tried

to a jury.

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

Court followed a similar line of analysis. The defendant in

the Colts case was charged with the crime of driving

recklessly so as to endanger people, an offense that was

punishable by a maximum of 30 days’ imprisonment.

Focusing “primarily upon the nature of the offense,” the

Court held that the defendant was entitled to a jury trial

for two reasons: first, the offense “in its very nature is

malum in se * * * [and] was an indictable offense at com-

mon law”; and second, driving recklessly so as to endanger

people “is an act of such obvious depravity that to

characterize it as a petty offense would be to shock the

general moral sense” (id. at 73 (emphasis in original)).

Since the decisions in Callan and Colts, the Court has

moved away from the approach used in those cases. In

light of the difficulty of finding common law analogues

for many modern day offenses, the Court has abandoned

the effort to determine whether a particular offense would

have been indictable at common law. In addition, rather

than attempting to determine in the abstract whether a

particular offense was of sufficient “depravity” to be

deemed serious, the Court has looked to the penalty im-

posed for the offense. Under that approach, the Court has

looked to the size of the penalty as the best measure of the

seriousness of the offense as the legislature viewed it, and

thus as the determining factor in deciding whether the of-

fense carries with it a right to trial by jury.

The penalty-oriented approach had its origins as early as

1904 in Schick v. United States, supra. There, the detend-

ant was convicted summarily of selling unstamped

oleomargarine in violation of a federal revenue statute and

was ordered to pay a $50 fine. The Court concluded that

the crime charged was a petty offense because “[s}o small a

penalty * * * indicates * * * [ijt is not one necessarily in-

volving any moral delinquency” (195 U.S. at 67). As the

Court explained, the nature of the offense, and in par-

ticular “the amount of the punishment prescribed” deter-

mine “whether it is to be classed among serious or petty of-

fenses” (id. at 68).

Subsequently, in District of Columbia v. Clawans, 300

U.S. 617, 625 (1937), the Court again refused to rely ex-

clusively on the common law treatment of the offense, but

instead considered the severity of the penalty in determin-

ing whether a statutory offense “must be deemed so

serious as to be comparable with common law crimes, and

thus to entitle the accused to the benefit of a jury trial.”

Such an inquiry, the Court noted, involves an “objective

standard{]” that may be “taken as-a gauge o! [the com-

munity’s} social and ethical judgments” (/d. at 628).

12

The defendant in Clawans was convicted of unlawfully

selling unused portions of railway tickets, an offense

punishable by a maximum sentence of 90 days’ imprison-

ment (300 U.S. at 623). Reviewing practices among the

Colonies and the States in the late 18th century, the Court

found numerous examples of summary disposition of

petty offenses with punishments exceeding three months’

imprisonment (id. at 625-630). The Court then concluded

that a penalty of that size, “when attached to the offense

of selling second-hand goods without a license,” did not

give the crime “the character of * * * a major offense” (id.

at 630).

By stating that the severity of the penalty was a principal

factor in the constitutional inquiry, the Clawans Court

foreshadowed the approach the Court has embraced dur-

ing the past 20 years. In keeping with the trend toward an

objective standard, the Court in Clawans observed that

the question of a defendant's right to jury trial “must be

resolved, not subjectively by recourse of the judge to his

own sympathy and emotions, but by objective standards

such as may be observed in the laws and practices of the

community taken as a gauge of its social and ethical

judgments” (300 U.S. at 628).’

More recent decisions, following the approach used in

Clawans, have focused on the maximum penalty for an of-

fense as the proper criterion for determining whether the

right to a jury trial attaches. A series of three cases decided

’ In a statement further anticipating the six-month penalty that the

Court ultimately settled on as the appropriate dividing line between

serious and petty offenses, the Court observed in Clawans (300 U.S. at

627-628 (footnote omitted)) that

we may doubt whether summary trial with punishment of more

than six months’ imprisonment, prescribed by some pre-

Revolutionary statutes, is admissible without concluding that a

penalty of ninety days is too much.

13

in 1968 and 1969 have become the leading authorities for

that point.

In Duncan v. Louisiana, 391 U.S. 145, 159 (1968), tive

Court made clear that “the penalty authorized for a par-

ticular crime is of major relevance in determining whether

it is serious or not.” The Court noted that petty offenses

were tried without juries in England and the Colonies “and

have always been held to be exempt from the otherwise

comprehensive language of the Sixth Amendment’s jury

trial provisions” (id. at 160). There is no evidence that the

Framers intended to depart from that practice, the Court

observed.

In determining whether a particular offense was “petty”

or “serious” for jury trial purposes, the Duncan Court em-

phasized that it was important to use “objective criteria”

(391 U.S. at 161) to make the constitutional determina-

tion. Furthermore, the court noted that “[{t}he 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” (id. at 160 (citation omitted)). While

not deciding precisely where the line should be drawn be-

tween petty offenses and serious crimes, the Court con-

cluded that a crime carrying a potential penalty of two

years’ imprisonment is a serious crime and not a petty of-

fense.

Frank v. United States, 395 U.S. 147 (1969), which was

decided the year after Duncan, made the same point. As in

Duncan, the Court in Frank explained that in determin-

ing whether the jury trial right attached in a prosecution

for a particular crime, the Court sought “objective indica-

tions of the seriousness with which society regards [an] of-

fense” and that “[tjhe most relevant indication of the

seriousness of an offense is the severity of the penalty

authorized for its commission” (id. at 148). Although

Frank was a contempt case in which there was no statutory

14

maximum penalty, the Court noted that in “ordinary

criminal prosecutions, the severity of the penalty author-

ized * * * is the relevant criterion” for distinguishing be-

tween petty and serious offenses (id. at 149). In such cases,

the Court explained, “the legislature has included within

the definition of the crime itself a judgment about the

seriousness of the offense” (ibid.).

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

which was decided the following year, a plurality of the

Court announced a standard that it distilled from prior

precedents.* The Court stated that i: iooked to “objective

criteria reflecting the seriousness with which society

regards the offense * * * [and] found the most relevant

such criteria in the severity of the maximum authorized

penalty.”* Indeed, the Court referred to the maximum

* Three Justices joined the plurality opinion. Justices Black and

Douglas concurred in the judgment but did not agree that the Con-

stitution permits petty offenses to be tried without a jury. Chief

Justice Burger and Justices Harlan and Stewart dissented on the

ground that the incorporation doctrine should not be invoked to apply

the jury trial requirements of the Constitution in full force to the

States. See 399 U.S. at 76-77 (Burger, C.J., dissenting); id. at 117-143

(Harlan, J., dissenting); id. at 143-145 (Stewart, J., dissenting).

Justice Harlan and apparently Justice Stewart agreed with the plurali-

ty, however, that for federal purposes the six-month period of im-

prisonment was the appropriate dividing line between serious and

petty crimes. See 399 U.S. at 120-121 (Harlan, J., dissenting); id. at

143 (Stewart, J., dissenting). Accordingly, five Members of the Court

agreed on the six-month period of imprisonment as the correct point

at which the constitutional right to a jury trial should attach. For that

reason, we refer to the plurality’s reasoning on that point as setting

forth the view of the Court.

* Ct. Welsh v. Wisconsin, 466 U.S. 740, 754 n.14 (1984) (“Given

that the classification of state crimes differs widely among the States,

the penalty that may attach to any particular offense seems to provide

the clearest and most consistent indication of the State’s interest in ar-

resting individuals suspected of committing that offense.”).

15

penalty as “the only objective criterion by which a line

could ever be drawn * * * between offenses that are and

that are not regarded as ‘serious’ for purposes of trial by

jury.” Jd. at 68, 72-73 (footnote omitted). '”

3. At the same time that it was settling on the max-

imum penalty as the sole criterion for determining whether

a jury trial is required, the Court established a “bright

line” test to distinguish petty from serious crimes for pur-

poses of the jury trial guarantee. The Court has concluded

that crimes “carrying a sentence of more than six months

are serious crimes and those carrying a sentence of six

months or less are petty offenses.” Codispoti v. Penn-

sylvania, 418 U.S. 506, 512 (1974); see id. at 519 (Mar-

shall, J., concurring). That constitutional dividing line,

'® The Court has followed a roughly similar line of analysis in cases

involving contempts of court. In United States v. Barnett, 376 U.S.

681, 682-683 (1964), which was decided several years before Duncan,

the Court held that criminal contempt is a petty offense that need not

be tried to a jury. In dictum, the Court noted that “our cases have in-

- dicated that, irrespective of the severity of the offense, the severity of

the penalty imposed * * * might entitle a defendant to the benefit of a

jury trial” (id. at 695 n.12 (citing District of Columbia v. Clawans,

supra)). Justice Clark, writing for the Court, added (ibid.) that

“(some members of the Court afe of the view that, without regard to

the seriousness of the offense, punishment by summary trial without a

jury would be constitutionally limited to that penalty provided for

petty offenses.” Two years later, in Cheff v. Schnackenberg, 384 U.S.

373, 379 (1966), a plurality of the Court followed Barnets to hold that

an individual who received a six-month sentence for criminal con-

tempt was not entitled to a jury trial. The plurality reasoned that a

jury trial was not required because the sentence fell within the range

Congress prescribed for petty offenses and the nature of a criminal

contempt offense did not call for different treatment (id. at 379-380).

The Court subsequently held that a jury trial was required in contempt

cases in which penalties of more than six months’ imprisonment were

imposed. See Bloom v. Iilinois, 91 U.S. 194 (1968); Dyke v. Taylor

Implement Co., 391 U.S. 216, 220 (1968). .

tl i i i i i

16

although necessarily somewhat arbitrary (see Baldwin, 399

U.S. at 73; Duncan, 391 U.S. at 160-161) has a sound

historical basis and is consistent with contemporary stand-

ards. As the Court has noted, “in the late 18th century in

America crimes triable without a jury were for the most

part punishable by no more than a six-month prison

term.” Duncan v. Louisiana, 391 U.S. at 161; see Baldwin

v. New York, 399 U.S. at 71; District of Columbia v.

Clawans, 300 U.S. at 626-627. At the time of Duncan,

even in the absence of any constitutional compulsion the

States were nearly unanimous in the view that offenses

punishable by more than six months’ imprisonment should

be tried to juries. See Duncan v. Louisiana, 391 U.S. at

161 & n.33; Baldwin v. New York, 339 U.S. at 71-72. And

in the federal system, Congress has consistently def ined as

petty any offense punishable by no more than six months’

imprisonment.'' It is thus clear from this Court’s

precedents, as well as historical and contemporary prac-

tice, that a defendant has a right to a jury trial for any of-

fense carrying a maximum penalty of more than six

months’ imprisonment, but he does not have a right to a

jury trial for an offense carrying a maximum penalty of six

months’ imprisonment or less.

\! See, e.g., 18 U.S.C. (1982 ed.) 103); 18 U.S.C. 19, 18 U.S.C.

(Supp. 1V) 3581(b)(7), (8) and (9).

in the Judiciary Act of 1789, ch. 20, § 9, 1 Stat. 76-77, Congress

vested district courts with exclusive jurisdiction over “all crimes and

offences * * * cognizable under the authority of the United States,

* * * where no other punishment than whipping * * * a fine not ex-

ceeding one hundred dollars, or a term of imprisonment not exceeding

six months, is to be inflicted.” Congress specifically provided (id. at

77) that “the trial of issues in fact, in the district courts, in all causes

except civil causes of admiralty and maritime jurisdiction, shall be by

jury.” Congress enacted no such provision for the trial of “crimes and

offences” in which the maximum penalty was six months or less and

which were tried in the district courts.

17

B. A DUI Offense, Punishable By A Maximum Term Of Six

Months’ Imprisonment, Should Be Treated As A Petty Of-

fense Triable Without A Jury

The application of these principles to this case is

straightforward. The Nevada DUI law provides for a max-

imum of six months’ imprisonment for first offenders such

as petitioners. Therefore, petitioners are not constitu-

tionally entitled to a jury trial. If there were any doubt of

the application of those principles in the context of a DUI

offense, the Court just two Terms ago reaffirmed the

vitality of the six-month constitutional dividing line for

purposes of the right to a jury trial, and it did so in the

context of a DUI prosecution. In Bairnsfather v. Lout-

siana, No. 86-5656 (Apr. 6, 1987), the appellant chal-

lenged the Louisiana courts’ refusal to grant him a jury

trial for a DUI offense. Although the DUI offense carried

a maximum penalty of only six months’ imprisonment, the

appellant argued that the crime was a serious offense for

constitutional purposes, because of the nature of the of-

fense and the collateral consequences that a defendant

could suffer upon conviction. See 86-5656 J.S. 8-9. The

Court, however, dismissed the appeal in that case for want

of a substantial federal question. That precedent is directly

applicable here and should be dispositive. '’

Petitioners contend that the nature of the DUI offense

(Br. 18-22), as well as the collateral consequences of a con-

viction (Br. 9-16), render the Nevada DUI offense suffi-

ciently serious to require a jury trial in spite of the six-

'\2 The Court’s dismissal for want of a substantial tederal question

represents a decision on the merits and therefore has precedential

value, albeit less value than an opinion of the Court after full briefing

and argument. See, e.g., Southern Railway Co. v. Seaboard Allied

Milling Corp., 442 U.S. 444, 462 (1979); Hicks v. Miranda, 422 U.S.

332, 343-345 (1975).

month cap on the authorized penalty. Moreover, : peti-

tioners suggest (Br. 17-18) that current state practices

regarding jury trials for DUI offenses confirm that DUI

offenses should be tried to a jury. The Court’s decisions,

however, show that neither the inherent nature of an of-

fense nor its collateral consequences are an accurate in-

dicator of its seriousness for purposes of the constitutional

jury trial guarantee. And, contrary to petitioners’ sug-

gestion, most States treat DUI as a petty offense and do

not regard it as an offense that requires a trial by jury as a

constitutional matter.

1. As even petitioners concede (Br. 21), the Court has

all but explicitly abandoned its inquiry, last announced in

District of Columbia v. Colts, supra, into an offense’s

common law pedigree. That inquiry would be fruitless in

the case of modern statutory offenses that were unknown

to the common law, and even if a common law analogue

could be found, the treatment of the analogous offense at

common law would not necessarily shed light on whether

society now considers the offense sufficiently serious to

warrant a trial by jury.'?

Any inquiry into the “nature of an offense,” without re-

ga.d to the maximum pen ‘ty attached, would be equally

') This case demonstrates the difficulty (and ultimate futility) of

looking to the treatment of a given offense at common law. The

closest common law analogue to DUI presumably would have been

driving a wagon or horsecart while drunk. Available authority sug-

gests that that offense, as opposed to reckless driving so as to en-

danger others, the offense that was at issue in Co/fs, was not an indict-

able offense at common law. See, e.g., Siate v. Rodgers, 91 N.J.L.

212, 102 A. 433 (1917). Yet the historical analogy obviously does not

speak very clearly to the question whether the offense of DUI is suffi-

ciently serious to warrant trial by jury. Instead, as we set out above, it

is the legislature’s assignment of a penalty that is the most accurate

gauge of the seriousness of an offense.

19

uninformative, as it would inevitably call for subjective

evaluations by the courts as to the culpability of particular

conduct. To attempt to divine the “nature of the offense”

would thus violate this Court’s instruction that the con-

stitutional inquiry should be based on objective criteria.

E.g., Baldwin v. New York, 399 U.S. at 68; Frank v.

United States, 395 U.S. at 148; Duncan v. Louisiana, 391

U.S. at 161; District of Columbia v. Clawans, 300 U.S. at

628. In addition, it would disregard the “most relevant in-

dication of the seriousness of an offense” (Frank v. United

States, 395 U.S. at 148)—the legislature’s assignment of a

particular penalty to the crime.

We do not doubt that DUI may be “an act repugnant to

the moral sense of the community” (Br. 22); See Welsh v.

Wisconsin, 466 U.S. at 755 (Blackmun, J., concurring).

Indeed, the same judgment should hold true for any

criminal offense that is punishable by imprisonment, even

for a relatively short term. If the repugnancy of the con-

duct were the test, however, any criminal act more serious

than a minor infraction would give rise to a jury trial right.

And, in any event, if a court’s sense of moral repugnance

were the test, there would be no hope of obtaining certain-

ty and predictability in determining what offenses must be

tried to a jury. The open-ended and subjective standard

advocated by petitioners would ignore the legislature’s

choice and could convert almost any criminal offense into

one requiring a jury trial, a result the Court long ago held

the Constitution did not require.

Looking to the collateral consequences from a convic-

tion to determine the offense’s seriousness, as petitioners

suggest (Br. 9-16), would run a similar risk of permitting

subjective determinations to control the right to a jury

trial. Conviction for any crime has collateral conse-

quences, yet the Court has never stated that those conse-

quences define the seriousness of an offense. Instead, the

20

Court in Duncan v. Louisiana, 391 U.S. at 160, has made

clear that

the possible consequences to defendants from convic-

tions for petty offenses have been thought insufficient

to outweigh the benefits to efficient law enforcement

and simplified judicial administration resulting from

the availability of speedy and inexpensive nonjury ad-

judications.

Accord Baldwin v. New York, 339 U.S. at 73. There is

simply no ascertainable standard by which a court could

reasonably distinguish the collateral consequences

resulting from a DUI conviction from those resulting from

other petty offenses to the extent necessary to justify a

constitutional difference for purposes of the jury trial

guarantee. See Landry v. Hoepfner, 840 F.2d 1201, 1216

(Sth Cir. 1988) (en banc), petition for cert. pending, No.

88-5043. Many traffic violations can result in the suspen-

sion or loss of a driver’s license or compulsory attendance

at safe driving schools. Moreover, the opprobrium at-

tached to driving while intoxicated would be difficult to

distinguish, for constitutional purposes, from the op-

probrium attached to other petty offenses such as public

intoxication or engaging in various forms of disorderly

conduct.

2. Most state and federai courts that hav. eddressed

the issue have held that an offense such as DUI, when it

carries a penalty of no more than six months’ imprison-

ment, does not require a jury trial. For example, the en

banc Fifth Circuit recently held that a DUI of.ense under

Louisiana law was a petty offense, triable without a jury,

because the maximum potential penalty was six months’

imprisonment. Landry v. Hoepfner, supra. The court,

thoroughly analyzing this Court’s decisions, explicitly re-

jected arguments that the nature of the DUI offense itself

or the collateral consequences resulting from a conviction

21

elevated the offense to a “serious” crime for purposes of

the Sixth and Fourteenth Amendments (840 F.2d at

_ 1210-1217). See also United States v. Jenkins, 780 F.2d

472, 474 (4th Cir.), cert. denied, 476 U.S. 1161 (1986);

United States v. Fletcher, 50S F. Supp. 1053, 1054 (W.D.

Va. 1981); Matos v. Rodriguez, 440 F. Supp. 673, 676-677

(D.P.R. 1976); Thomas v. State, 331 A.2d 147 (Del. 1975);

State v. Henderson, 491 So. 2d 647, 650 (La. 1986); State

v. Smith, 99 Nev. 806, 810, 672 P.2d 631, 634 (1983); State

v. Morrill, 123 N.H. 707, 709-713, 465 A.2d 882, 884-886

(1983); State v. Linnehan, 197 N.J. Super. 41, 43-44, 484

A.2d 34, 35 (App. Div. 1984), cert. denied, 99 N.J. 236,

491 A.2d 723 (1985); State v. Sweat, 78 N.M. 512,

§13-514, 433 P.2d 229, 230-231 (1967); Commonwealth v.

Fischi, 363 Pa. Super. 173, 177-180, 525 A.2d 775,

777-778 (1987); State v. Holliday, 109 R.1. 93, 280 A.2d

333 (1971).

Four federal courts and three state courts have con-

cluded that the Constitution requires that DUI defendants

be accorded a trial by jury even where the offense carries a

maximum penalty of six months or less. See United States

v. Craner, 652 F.2d 23 (9th Cir. 1981); Bronson v. Swin-

ney, 648 F. Supp. 1094 (D. Nev. 1986); United Slates v.

Woods, 450 F. Supp. 1335 (D. Md. 1978); Brady v. Blair,

427 F. Supp. 5 (S.D. Ohio 1976); Rothweiler v. Superior

Court, 100 Ariz. 37, 410 P.2d 479 (1966); State v. O’Brien,

68 Haw. 39, 704 P.2d 883 (1985); City of Casper v.

Cheatham, 739 P.2d 1222 (Wyo. 1987). Those courts have

generally relied on the collateral consequences of a DUI

conviction as the reason for holding the jury trial right ap-

plicable. That approach to the constitutional issue,

however, is inconsistent with the analysis in this Court’s

decisions, as we have discussed above.

Nor are those courts’ other justifications for requiring

jury trials in DUI cases convincing. The district court in

Bronson v. Swinney, supra, which required that Nevada

22

provide a jury trial in DUI cases, based its ruling in part on

the fact that the Nevada DUI statute has a mandatory

minimum two-day jail sentence. See 648 F. Supp. at

1098-1100. The presence of a minimum sentence, how-

ever, does not suffice to convert DUI into a “serious” of-

fense for constitutional purposes. This Court has never

looked to the minimum sentence as a factor in determining

whether the right to a jury trial attaches. Indeed, even in

contempt cases, where the actual sentence imposed deter-

mines whether the accused must have a jury trial, the

Court has emphasized that a sentence of no more than six

months’ imprisonment does not require a trial by jury.

E.g., Muniz v. Hoffman, 422 U.S. 454, 475-476 (1975);

Codispoti v. Pennsylvania, 418 U.S. 506, 511-512 (1974).

Consequently, a mandatory two-day jail sentence cannot

transform an otherwise petty offense into one that must be

tried to a jury.'*

'* We also disagree with the Ninth Circuit's decision in Craner, in

which that court based its ruling in part on the fact that the penalty for

DUI on national park lands was set by the Secretary of the Interior

rather than by Congress. From the fact that the offense and its penalty

were defined by regulation rather than by statute, «ie court concluded

that the size of the penaity is less important because it does not reflect

a legislative judgment that DUI offense on national park grounds is a

petty offense. The regulations themselves, however, demonstrate the

flaw in that approach. Congress has authorized penalties of up to six

months’ imprisonment and a $500 fine for regulatory violations in the

national parks, 16 U.S.C. 3, three months’ imprisonment and a $100

fine for regulatory violations in national military parks and

battlefields, 16 U.S.C. 9a, and no imprisonment but a $500 fine for

regulatory violations in national historic sites, 16 U.S.C. 462(k). If the

Craner court is correct, the fact that Congress did not define the crime

would require a DUI offense on a national historic site to be tried to a

jury even though the offense carried no risk of punishment and a max-

imum fine of only $500. By extrapolation, the Craner court would ap-

parently require a trial by jury even if the maximum penalty were a

$15 fine.

—

23

A review of current practices among the States, in-

cluding the District of Columbia, regarding the right to

jury trial for a DUI offense shows that 30 jurisdictions

have penalties of no more than six months’ imprisonment

for a first DUI offense.'* Twenty-two of those States pro-

vide for a jury trial in DUI cases, but only two do so solely

because they view DUI as a “serious” offense for constitu-

tional purposes despite its petty offense penalty. See

Rothweiler v. Superior Court, 100 Ariz. 37, 41-47, 410

P.2d 479, 483-486 (1966); State v. O’Brien, 68 Haw. 39,

41-43, 704 P.2d 883, 885-887 (1985).'* The other 20 States

'S The Fifth Circuit, in Landry v. Hoepfner, supra, recently con-

ducted such a review. See 840 F.2d at 1218-1220. The Fitsh Circuit in-

cluded Puerto Rico in its analysis, but we have chosen to include only

the 50 States and the District of Columbia. Petitioners have attached

to their brief an appendix that assertedly contains a list of the States

that provide jury trials for a DUI offense (Br. App. 1-9). That list is

deceptive, however, because it does not show the number of jurisdic-

tions that provide for a jury trial for all criminal offenses, and we

disagree with petitioners’ analysis with respect to several States. We

are attaching as an appendix to this brief a list of how each State, in-

cluding the District of Columbia, treats DUI offenses.

The Landry court's categorization rested on an appendix that we

had submitted. See 840 F.2d at 1218 & n.3?. We provided incorrect in-

formation with respect to Connecticut and Pennsylvania, so the actual

breakdown of the States varies slightly from that in Landry.

'© The Wyoming Supreme Court recently held that DUI was a

“serious” offense, for constitutional purposes, and that it therefore re-

quired a jury trial in a municipal court, even though the applicable local

ordinance provided for no penalty of imprisonment. Ci/y of Casper v.

Cheatham, 739 P.2d 1222, 1223-1224 (Wyo. 1987). That court,

however, already had held that under Wyoming law a detendant had a

right to jury trial in any cases where the penalty involved a potential

term of imprisonment. Brenner v. City of Casper, 723 P.2d 558, 561

(Wyo. 1986). Courts in Maryland and South Dakota also have held

that a DUI offense is serious. In both States, however, the penalty for

DUI is one year in prison. Thus, a defendant would have a right to a

24

grant a jury trial in all criminal cases or in all cases that

carry a potential penalty of imprisonment.'’ Eight

jurisdictions, including Nevada, with punishments for

DUI not exceeding six months’ imprisonment, do not pro-

vide for a jury trial.'*

In the remaining 21 States, the maximum penalty for

DUI exceeds six months’ imprisonment.'? Hence, coupled

with Arizona, Hawaii, and Wyoming, a total of 24 states

consider DUI to be a “serious” offense, for constitutional

purposes, while 27 jurisdictions deem DUI to be a petty

offense. See App., infra, la, Sa, 20a; see also 840 F.2d at

1219. As the Fifth Circuit observed (ibid.), that ratio

“reflects that a clear majority of the jurisdictions * * *

classifies [DUI] in a manner which entirely meets the

standards of the Supreme Court’s definition of ‘petty.’ ”

Accordingly, the practice among the States does not sup-

jury trial irrespective of those decisions. See Fisher v. State, 305 Md.

357, 504 A.2d 626 (1986); Parham v. Municipal Court, 86 S.D. 531,

199 N.W.2d 501 (1972); see also App., infra, 8a, 17a. By contrast,

courts in Florida and Nebraska, States that provide for a jury trial in

virtually all criminal cases, have held that a DUI offense does not in-

trinsically require a jury trial. See Whirley v. State, 450 So.2d 836

(Fla. 1984); State v. Amick, 173 Neb. 770, 114 N.W.2d 893 (1962).

'? California, Connecticut, Florida, Idaho, Kansas, Kentucky,

Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska,

North Carolina, Ohio, Oregon, South Carolina, Utah, West Virginia,

Wisconsin, and Wyoming all provide either by state constitution or

statute for a jury trial in all criminal cases or in all prosecutions in-

volving potential imprisonment. See App., infra, 2a-20a.

'® Those jurisdictions are Delaware, the District of Columbia,

Louisiana, Nevada, New Hampshire, New Jersey, New Mexico, and

North Dakota. See App., infra, 3a-4a, 7a, | la-i4a.

'? Eleven of those States also provide for jury trial in all criminal

cases. Those States include Alaska, Colorado, Illinois, Indiana, lowa,

Maine, Oklahoma, Tennessee, Texas, Vermont, and Washington. See

App., infra, la-2a, 6a, 8a, 1Sa, 17a-19a.

25

port a conclusion that a DUI charge warrants a jury trial

when the maximum sentence is six months’ imprisonment.

3. Finally, we submit that the constitutional dividing

line that the Court has established has the virtues of

predictability and ease of application for the parties.

When the jury trial right is conditioned on the length of

the potential sentence for an offense, the trial court and

the parties know in advance whether a jury trial is re-

quired. On the cther hand, if a trial court must determine

the seriousness of minor offense: on a case-by-case basis,

the administration of justice obviously will suffer. The

confusion wrought by such a test, requiring either an ex-

amination of the nature of the offense or its collateral con-

sequences, will no doubt be immense. The burden is par-

ticularly great because it is imposed in a class of cases in

which the need for easily applied rules and simplified

handling is the greatest. The Court’s “fixed dividing line

between petty and serious offenses” (Codispoti v. Penn-

sylvania, 418 U.S. at 512) remains historically sound, easy

to apply, and consistent with contemporary standards.

The Court should therefore reaffirm the vitality of that

standard for determining whether an offense requires a

jury trial.

26

The judgment of the Supreme Court of Nevada should

be affirmed.

Respectfully submitted.

SEPTEMBER 1988

CHARLES FRIED

Solicitor General

EDWARD S.G. DENNIS, JR.

Acting Assistani Attorney General

WILLIAM C. BRYSON

Deputy Solicitor General

MICHAEL R. LAZERWITZ

Assistant to the Solicitor General

Louts M. FISCHER

Attorney

APPENDIX

PENALTIES FOR FIRST OFFENSE DUI AND

RIGHT TO JURY TRIAL IN THE STATES

AND THE DISTRICT OF COLUMBIA

ALABAMA

ALASKA

ARIZONA

Under Ala. Code § 32-5A-191

(Supp. 1987), the maximum

penalty is one year in prison and

a $1,000 fine.

The state right to jury trial ap-

plies only to those classes of

cases triable to a jury at com-

mon law. Ex parte LeFlore, 445

So.2d 932, 934 (Ala. 1983).

Under Alaska Stat. §§ 28.35.030

(b), 12.55.035(b)(3), and

12.55.135(a) (1984), the max-

imum penalty is one year in

prison and a $5,000 fine.

The state right to jury trial ap-

plies to all offenses punishable

by imprisonment. Baker v. City

of Fairbanks, 471 P.2d 386,

401-402 (Alaska 1970).

Under Ariz. Rev. Stat. Ann.

§§ 28-692.01.B, 13-707.A.1, and

13-802.A (1976 & 1978), the

maximum penalty is six months’

imprisonment and a $1,000 fine.

In Rothweiler v. Superior Court,

100 Ariz. 37, 41-47, 410 P.2d

(la)

ARKANSAS

CALIFORNIA

COLORADO

2a

479, 483-486 (1966), the state

supreme court held that DUI

was a serious offense that re-

quired trial by jury.

Under Ark. Stat. Ann. §§5-65-

103, 5-65-111(a), and 5-65-112(1)

(1987), the maximum penalty is

one year in prison and a $1,000

fine.

The state right to jury trial ap-

plies only to those classes of

cases triable to a jury at com-

mon law. Dunn v. Davis, 725

S.W.2d 853, 855 (Ark. 1987).

Under Cal. Veh. Code §§ 23152

and 23160(a) and Cal. Penal

Code § 689 (West 1985), the

maximum penalty is six months’

imprisonment and a $1,000 fine.

There is a state constitutional

right to jury trial for all misde-

meanors, including DUI, even

though the misdemeanor would

be a petty offense under federal

law. Mills v. Municipal Court,

10 Cal.3d 288, 298 & n.8, 515

P.2d 273, 280 & n.8 (1973).

Under Colo. Rev. Stat. §§ 42-4-

1202(1)(a) and (4)(a)(1) (19xx),

the maximum penalty is one year

CONNECTICUT

DELAWARE

3a

in prison and a $1,000 fine.

The state extends the opportuni-

ty for a jury trial to all criminal

cases. City of Canon City v.

Merris, 137 Colo. 169, 181-182,

323 P.2d 614, 620-621 (1958).

Under Conn. Gen. Stat.

§§ 14-227a(a) and (h) (1987), the

maximum penalty is six months’

imprisonment and a $500 fine.

The state right to jury trial ap-

plies to all criminal offenses, ex-

cept those where the maximum

penalty is a $199 fine. See Conn.

Gen. Stat. § 54-82b (Supp.

1988).

Under Del. Code Ann. tit. 21,

§§ 4177(a) and (d)(1) (1985), the

maximum penalty is six months’

imprisonment and a $1,000 fine.

Contrary to the representation

in the appendix to petitioners’

brief, the Delaware Supreme

Court has held that the right to

jury trial applies only to

“serious” offenses, both in the

first instance (Van Arsdall v.

State, 524 A.2d 3, 9 n.11 (Del.

1987)), and on appeal de novo

(Clements v. Family Court, 401

A.2d 72, 74 (Del. 1979)). A

DISTRICT OF

COLUMBIA

FLORIDA

4a

serious offense is punishable by

more than six months’ imprison-

ment. Thomas v. State, 331

A.2d 147, 150 (Del. 1975) (ap-

plying the Baldwin test and over-

ruling the prior state rule that

trial by jury is required when the

offense carries a punishment of

three months’ imprisonment).

Under 40 D.C. Code Ann.

§ 716(b)(1), the maximum

penalty is 90 days’ imprisonment

and a $300 fine.

The District of Columbia courts

follow the Court’s precedents;

the D.C. Court of Appeals has

not recognized a constitutional

right to jury trial for an offense

punishable by no more than six

months’ imprisonment. By

statute, an accused may demand

a jury trial where the offense’s

penalty exceeds 90 days’ im-

prisonment. See Jackson v.

United States, 498 A.2d 185,

187-188 (D.C. 1985).

Under Fla. Stat. §§ 316.193(1)

(a) and (2)(a) (Supp. 1988), the

maximum penalty is six months’

imprisonment and a $500 fine.

The state extends the opportuni-

ty for a jury trial to all traffic of-

GEORGIA

HAWAII

IDAHO

Sa

fenses, including DUI. Fla. Stat.

§ 316.1934(4) (Supp. 1988).

Under Ga. Code Ann. §§ 40-6-

391(a), 40-6-391(c)IMA), and

40-6-391(c)(1)(B; (Supp. 1988),

the maximum penalty is one year

in prison and a $1,000 fine.

Georgia does not recognize a

state right to jury trial for petty

offenses. Key v. Stewart, 228

Ga. 516, 517, 186 S.E.2d 739,

740 (1972).

Under Haw. Rev. Stat.

§§ 291-4(a) aud (b)(1)(C) (1985),

the maximum penalty is six

months’ imprisonment.

In State v. O’Brien, 68 Haw. 39,

41-43, 704 P.2d 883, 885-887

(1985), the state supreme court

held that DUI was a serious of-

fense that required trial by jury.

Under Idaho Code §§ 18-8004

(1), 18-8005(1)(a), and 18-8005

(1)(b) (Supp. 1988), the max-

imum penalty is six months’ im-

prisonment and a $1,000 fine.

The state right to jury trial ap-

plies to all criminal offenses, ex-

cept those not punishable by im-

prisonment or those punishable

ILLINOIS

INDIANA

IOWA

6a

by no more than a $100 fine. See

Idaho Code § 19-1902 (1987).

Under Ill. Rev. Stat. ch. 95%,

paras. 11-SOl(a) and (c) (Supp.

1988), and ch. 38, para.

1005-1-14 (1982), the maximum

penalty is one year in prison.

The state right to jury trial ap-

plies to all criminal offenses, in-

cluding a traffic speeding viola-

tion. See Ill. Rev. Stat. ch. 38,

paras. 103-6 and 102-15 (1980);

People v. Beil, 76 Ill. App. 3d

924, 927-928, 395 N.E.2d 400,

402-403 (1979).

Under Ind. Code §§ 9-11-2-2

and 35-50-3-2 (1987), the max-

imum penalty is one year in

prison and a $5,000 fine.

The state constitutional right to

jury trial applies to all criminal

offenses. Gillespie v. Gilmore,

307 N.E.2d 480, 482-483 (1974).

Under lowa Code §§ 321, .2.1.a,

321J3.2.2.a, and 903.1.1.b

(Supp. 1988), the maximum

penalty is one year in prison and

a $1,000 fine.

The state constitutional right to

jury trial applies to all criminal

offenses. State v. Henderson,

KANSAS

KENTUCKY

LOUISIANA

7a

287 N.W.2d 583, 584-585 (lowa

1980).

Under Kan. Stat. Ann.

§§ 8-1567(a) and (c) (1982), the

maximum penalty is six months’

imprisonment and a $500 fine.

The state right to jury trial ap-

plies, on demand, to all misde-

meanor and traffic offenses. See

Kan. Stat. Ann. § 22-3404

(1981); State v. Dickson, 680

P.2d 313 (Kan. 1984).

Under Ky. Rev. Stat. Ann.

§§ [89A.010(1) and (2)(A)

(Michie/Bobbs-Merrill Supp.

1986), the maximum penalty is

30 days’ imprisonment and a

$500 fine.

The state right to jury trial ap-

plies to “all criminal pros-

ecutions, including prosecutions

for violation of traffic laws”

(Ky. ‘Rev. Stat. Ann.

§ 29A.270(1) (Michie/Bobbs-

Merrill 1985)).

Under La. Rev. Stat. Ann.

§§ 14:98(A) and (B) (West

1986), the maximum penalty is

six months’ imprisonment and a

$500 fine.

MAINE

MARYLAND

8a

The state right to jury trial ap-

plies to those offenses with

penalties exceeding six months’

imprisonment or a $500 fine. See

State v. Henderson, 491 So.2d

647 (La. 19% 5).

Under Me. Rev. Stat. Ann. tit.

29, §§ 1312-B.1, 1312-B.2, and

tit. 17-A, §§1252.2D and

1301.3.E (1974), the maximum

penalty is one year in prison and

a $5,000 fine.

The state right to jury trial ap-

plies to all criminal offenses.

State v. Freeman, 487 A.2d

1175, 1179 (Me. 1985).

Under Md. Transp. Code Ann.

§§ 27-101 and 21-902(k)(1)

(1982), the maximum penalty is

one year in prison and a $1,000

fine.

The state right to jury trial ap-

plies to criminal offenses

punishable by more than 90

days’ imprisonment. In Fisher v.

State, 305 Md. 357, 366-369, 504

A.2d 626, 630-632 (1986), the

court held that a DUI defendant

was entitled to a jury trial

because of the seriousness of the

offense even though the pros-

ecutor had agreed not to seek a

ee ee

MASSACHUSETTS

MICHIGAN

MINNESOTA

9a

penalty of more than 90 days’

imprisonment.

Under Mass. Gen. L. ch. 90,

§§ 21 and 24(1)(a)(1) (1985), the

maximum penalty is two years’

imprisonment and a $1,000 fine.

There is no state right to jury

trial in the first instance for

petty offenses. See Opinion of

the Justices, 271 N.E.2d 335,

336-337 (Mass. 1971). Instead,

Massachusetts uses a two-tiered

system under which a jury trial -

may be obtained on appeal. See

Ludwig v. Massachusetts, 427

U.S. 618 (1976).

Under Mich. Comp. Laws

§§ 257.625(1) and (4) (Supp.

1988), the maximum penalty is

90 days’ imprisonment and a

$500 fine.

The state right to jury trial ap-

plies to all criminal offenses.

People v. Goodwin, 69 Mich.

App. 471, 472-474, 245 N.W.2d

96, 96-97 (1976).

Under Minn. Stat. §§ 169.121.1,

169.121.4(a), and 609.03(3)

(1986), the maximum penalty is

90 days’ imprisonment and a

$700 fine.

MISSISSIPPI

MISSOURI

10a

The state constitutional right to

jury trial applies to all criminal

offenses. Petersen v. Petersen,

278 Minn. 275, 278-281, 153

N.W.2d 825, 828-830 (1967).

Under Miss. Code Ann. §§ 63-

11-30(1) and (2)(a) (1973), the

maximum penalty is one day in

prison and a $500 fine.

The state right to jury trial ap-

plies, on demand, to petty of-

fenses. Clark v. State, 332 So.2d

415, 416-417 (1976) (right to jury

trial applies to any offense ex-

cept criminal contempt).

Under Mo. Rev. Stat.

§§ 558.011.1(6), 560.016.1(2),

§77.0101, and 577.010.2(1)

(1979), the maximum penalty is

six months’ imprisonment and a

$500 fine.

The state constitutional right to

jury trial applies to all criminal

offenses except violations of

municipal ordinances. State ex

rel. Cole v. Nigro, 471 S.W.2d

933, 936-937 (Mo. 1971). A state

statute does, however, provide

for jury trials in certain

municipal courts. See Mo. Rev.

Stat. § 479.130 (1987).

MONTANA

NEBRASKA

~NEW HAMPSHIRE

Under Mont. Code Ann.

§ 61-8-722 (1988), the maximum

penalty is 10 days’ imprisonment

and a $500 fine.

The state right to jury trial ap-

plies to all criminal offenses.

Mont. Code Ann. §§ 46-17-201

and 46-17-403 (1986).

Under Neb. Rev. Stat.

§§ 39-669.07 and 28-106(1)

(1984), the maximum penalty is

seven days’ imprisonment and a

$200 fine.

The state right to jury trial ap-

plies to all criminal offenses.

State v. Karel, 204 Neb. 573,

$74-577, 284 N.W.2d 12, 13-14

(1979).

Under N.H. Rev. Stat. Ann.

§§ 265:82 and 265:82-b.1.(a)

(1982 & Supp. 1987), the max-

imum penalty for the “violation”

is a $1,000 fine. (By the decision

of the state supreme court, see

infra, the maximum penalty is a

$500 fine.)

Contrary to petitioners’ claim in

the appendix to their brief,

under New Hampshire law there

is no right to jury trial for a DUI

offense. The state supreme court

NEW JERSEY

12a

held in State v. Morrill, 465

A.2d 882, 884-886 (N.H. 1983),

that the DUI offense was a

“violation,” not a crime, and

thus there was no right to jury

trial. The court also followed the

Baldwin test and concluded that

there was no federal constitu-

tional right to trial by jury for a

DUI offense (see id. at 884-885).

The court reduced the maximum

fine to $500, the limit under

state practice for triggering a

right to jury trial in civil cases

(see id. at 885-886). Finally, the

court pointed out that the

legislature in 1973 had

eliminated any right to jury trial

on a de novo appeal from a con-

viction for a violation (see id. at

884).

Under N.J. Rev. Stat. §§ 39:4-

50(a) and (1) (Supp. 1988), the

maximum penalty is 30 days’ im-

prisonment and a $400 fine.

The state right to jury trial does

not apply to petty offenses such

as DUI; an offense is deemed

petty solely by the length of the

potential sentence. State v. Lin-

nehan, 197 N.J. Super. 41,

43-44, 484 A.2d 34, 35 (App.

Div. 1984), cert. denied, 491

A.2d 723 (N.J. 1985).

NEW MEXICO

NEW YORK

NORTH CAROLINA

l3a

Under New Mex. Stat. Ann.

§§ 66-8-102.A and .D (1988),

the maximum penalty is 90 days’

imprisonment and a $500 fine.

There is no state right to jury

trial for a DUI offense. State v.

Sweat, 78 N.M. 512, 513-514,

433 P.2d 229, 230-231 (1967).

Under N.Y. Veh. & Traf. Law

§§ 1192.2 and .S (McKinney

1986 & Supp. 1988), the max-

imum penalty is one year in

prison and a $500 fine.

In New York, the right to jury

trial is determined by the length

of the potential sentence, with

the Baldwin bright-line test as

the dividing line. Morgenthau v.

Eribaum, 59 N.Y.2d 143,

153-154, 451 N.E.2d 150, 156

(1983).

Under N.C. Gen. Stat.

§§ 20-138.1(a) and 20-179%i)

(1983), the maximum penalty is

six months’ imprisonment and a

$500 fine.

The state right to jury trial ap-

plies to all criminal offenses.

State v. Field, 75 N.C. App.

647, 648, 331 S.E.2d 221, 222

(1985).

NORTH DAKOTA

OHIO

l4a

Under N.D. Cent. Code

§§ 39-08-01.1, 39-08-01.2, and

12.1-32-01 (1987), the maximum

penalty is 30 days’ imprisonment

and a $500 fine.

Contrary to petitioners’ claim in

the appendix to their brief, the

state constitutional right to jury

trial applies only to those cases

triable to a jury when the state

constitution was adopted in

1889. In Interest of R.Z., 415

N.W.2d 486, 488 n.1 (N.D.

1987). There is no right to jury

trial in municipal court,

although a defendant can obtain

a jury trial on appeal to the

county court. City of Bismarck

v. Altevogt, 353 N.W.2d 760,

764-766 (N.D. 1984).

Under Ohio Rev. Code Ann.

§§ 4511.99(A)(1) and 2929.21(B)

(1) (Page’s Supp. 1987), the

maximum penalty is six months’

imprisonment and a $1 ,000 fine.

The state right to jury trial ap-

plies to all offenses punishable

by imprisonment. City of Lima

v. Rambo, 113 Ohio App. 158,

161-162, 177 N.E.2d 554,

555-556 (1960).

OKLAHOMA

OREGON

PENNSYLVANIA

lSa

Under Okla. Stat. tit. 47, §§ 11-

902(A) and (C) (1988), the max-

imum penalty is one year in

prison and a $1,000 fine.

The state right to jury trial ap-

plies to all offenses punishable

by imprisonment. Murrah v. Ci-

ty of Oklahoma City, 620 P.2d

1335, 1338 (Okla. Crim. App.

1980).

Under Or. Rev. Stat. §§ 153.

505., 153.615(2)(a), and 153.623

(24) (1987), the maximum penal-

ty for the “traffic infraction” is a

$500 fine.

Despite the legislature’s treat-

ment of DUI, the Oregon

Supreme Court concluded that

DUI retained aspects associated

with crimes and thus a DUI

charge must be tried to a jury, as

would other state criminal of-

fenses. Brown v. Multnomah

County District Court, 280 Or.

95, 101-109, 570 P.2d 52, 55-60

(1977).

Under 75 Pa. Cons. Stat.

§§ 3731(a) and (e), 42 Pa. Cons.

Stat. § 9721, and 18 Pa. Cons.

Stat. §§ 1101(4) and 1104(2)

(1982 & Supp. 1988), the max-

imum penalty is two years’ im-

prisonment and a $5,000 fine.

RHODE ISLAND

SOUTH CAROLINA

SOUTH DAKOTA

16a

Under state law an offense

require a jury trial. Com-

monwealth v. Fischi, 525 A.2d

775, 777 (Pa. Super. 1987).

Under R.I. Gen. Laws §§ 31-27-

2(a) and (d)(1) (Supp. 1987), the

maximum penalty is one year in

prison and a $100 fine.

The state right to jury trial ap-

plies only to those offenses

triable to a jury when the state

constitution was adopted in

1842, namely, any offense that is

“criminal” in nature. As a result,

a person charged with a petty of-

fense has a right to jury trial on

appeal. State v. Vinagro, 433

A.2d 945, 946-947 (R.1. 1981).

Under S.C. Code Ann.

§§ 56-5-2930 and 56-5-2940

(1) (Law. Co-op. Supp. 1987),

the maximum penalty is 30 days’

imprisonment and a $200 fine.

The state right to jury trial ap-

plies, on demand, to all criminal

offenses. S. C. Code Ann.

§ 22-2-150 (Supp. 1987); see

United States v. Jenkins, 780

F.2d 472, 474-475 (4th Cir.

1986).

Under S.D. Codified Laws Ann.

§§ 32-23-1, 33-23-2, and

TENNESSEE

TEXAS

17a

22-6-2(1)(Supp 1988), the max-

imum penalty is one year in

prison and a $1,000 fine.

In Parham v. Municipal Court,

86 S.D. 531, 538, 199 N.W.2d

S01, SOS (1972), the state

supreme court held that the

defendant, who was charged

with DUI under a municipal or-

dinance, was entitled to a jury

trial because the crime was

“serious.”

Under Tenn. Code Ann.

§§ 55-10-40l(a) and 55-10-

403(a)(1) (Supp. 1987), the max-

imum penalty is imprisonment

for 11 months and 29 days, and

a $1,000 fine.

The state constitutional right to

jury trial applies to all mis-

demeanor offenses. State v.

Morgan, 598 S.W.2d 796,

797-798 (Tenn. Crim. App.

1979).

Under Tex. Traffic Reg. Code

Ann. §§ 67011-1(b) and (c) (Ver-

non Supp. 1988), the maximum

penalty is two years’ imprison-

ment and a $2,000 fine.

The state right to jury trials ap-

plies to all criminal offenses.

UTAH

VERMONT

VIRGINIA

18a

Franklin v. State, 576 S.W.2d

621, 623 (Tex. 1978).

Under Utah Code Ann.

§§ 41-6-44, 76-3-204, and

76-3-301 (1953 & Supp. 1987),

the maximum penalty is six

months’ imprisonment and a

$1,000 fine.

The state right to jury trial ap-

plies to all criminal offenses, in-

cluding those tried before

nonrecord justice courts. See

Utah Code Ann. §§ 78-46-5,

78-1-1, 78-5-1 (Supp. 1987).

Under Vt. Stat. Ann. tit. 23,

§§ 1201(a) and 1210(b) (1987),

the maximum penalty is one year

in prison and a $750 fine.

The state right to jury trial ap-

plies to all criminal offenses.

State v. Becker, 130 Vt. 153,

154-155, 287 A.2d 580, 582

(1972).

Under Va. Code Ann. § 18.2-

270 (1988), the maximum penal-

ty is one year in prison and a

$1,000 fine.

Virginia does not recognize a

state right to jury trial in the first

instance for a petty offense, but

one is obtainable on de novo ap-

WASHINGTON

WEST VIRGINIA

WISCONSIN

19a

peal. Manns v. Commonwealth,

213 Va. 322, 323-324, 191

S.E.2d 810, 811-812 (1972).

Under Wash. Rev. Code

§§ 46.61.502 and 46.61.515

(1970 & Supp. 1988), the max-

imum penalty is one year in

prison and a $500 fine.

The state right to jury trial ap-

plies to all criminal offenses.

City of Pasco v. Mace, 98

Wash.2d 87, 99-100, 653 P.2d

618, 625 (1983).

Under W.Va. Code §§ 17C-5-2

(d)(1) and (2) (Supp. 1988), the

maximum penalty is six months’

imprisonment and a $500 fine.

The state constitutional right to

jury trial applies to any offense

punishable by imprisonment.

Scott v. McGhee, 324 S.E.2d

710, 713 (W.Va. 1984).

Under Wis. Stat. §§ 346.63(1)

and 346.65(2)(b) (Supp. 1987-

1988), the maximum penalty is a

$1,000 fine.

The state right to jury trial ap-

plies to all criminal offenses. See

State v. Voss, 34 Wis.2d S01,

149 N.W.2d 595 (1967).

ia

WYOMING

20u

Under Wyo. Stat. §§ 31-5-233(a)

and (d) (Supp. 1987), the max-

imum penalty is six months’ im-

prisonment and a $750 fine.

The state constitutional right to

jury trial applies to any offense

punishable by imprisonment.

Brenner v. City of Casper, 723

P.2d 558, 561 (Wyo. 1986). The

state supreme court also recently

held that a municipality that had

eliminated imprisonment as a

penalty for DUI must still pro-

vide a jury trial because the of-

fense was “serious.” City of

Casper v. Cheatam, 739 P.2d

1222, 1223-1224 (Wyo: 1987).

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