# Amicus Curiae Brief — Blanton v. North Las Vegas

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## Record

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

## Text

* i.

No. 87-1437

IN THE

Supreme Court of the United

OCTOBER TERM, 1988

>_>

MELVIN R. BLANTON and MARK D. FRALEY,

Petitioners,
—

CITY OF NORTH LAS VEGAS, NEVADA,

Respondent.

ON WRIT OF CERTIORARI TO THE
SUPREME COURT OF THE STATE OF NEVADA

BRIEF AMICUS CURIAE OF THE
AMERICAN CIVIL LIBERTIES UNION AND
THE ACLU OF NEVADA IN SUPPORT OF
PETITIONERS

DAN C. BOWEN
(Counsel of Record)
Lionel Sawyer & Collins
50 West Liberty Street

P.O. Box 2610
Reno, Nevada 89505
(702) 788-8666

JOHN A. POWELL

JACQUELINE A. BERRIEN

American Civil Liberties Union
Foundation

132 West 43 Street

New York, New York 10036

(212) 944-9800

2

TABLE OF AUTHORITIES .

INTEREST OF AMICI. .
STATEMENT OF THE CASE
SUMMARY OF ARGUMENT . . .

AN INDIVIDUAL ACCUSED OF A
SERIOUS CRIMINAL OFFENSE IS
CONSTITUTIONALLY GUARANTEED
THE RIGHT TO BE TRIED BY A
Rr

11.

CONCLUSION .

TABLE OF CONTENTS (cont. )

DRIVING UNDER THE INFLUENCE

OF ALCOHOL IS A SERIOUS

CRIMINAL OFFENSE IN NEVADA,

AND THERE IS NO

JUSTIFICATION FOR THE DENIAL

OF PETITIONERS' FUNDAMENTAL
RIGHT TO BE TRIED BY A JURY

ON THESE CHARGES. ..... 33

A. Applying The Standards
Articulated In The
Decisions Of This Court,
It Is Clear That The
Offense Of Driving
While Under The
Influence of Alcohol Is
A Serious Offense In
DUN « 6 0 #2 @ % 6 33

B. Petitioners' Interests
Are Disserved By The
State Of Nevada's
Statutory Preclusion Of
Jury Trials For Indi-
viduals Accused Of DUI,
And There Are No State
Interests Of Constitu-
tional Magnitude Served
By The Deprivations Of
The Jury Trial Right
Which Occurred In This
Case. > ee Be Ssh} 50

* * * * * * * > * * * * > * 62

11

n

TABLE OF AUTHORITIES

Cases

Baker v. City of Fairbanks,
471 P.2d 386, 395, 401 (Alaska 1970) . . 29

Baldwin v. New York,
399 U.S. 66, 72 (197)

776 24 282, 295 (Nev. 1987)
7 9. F. COMET .
. . 5. Ohio 1976)
i 157 1

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

Bruce v. State,
614 P. 2d 813, 815
126 Ariz. 271, 273 (1980)

Callan v. Wilson,
127 U.S. 540 (18666) 11,
’

Cheff v. Schnackenberg
384 U.S. 373 (19866))))

iii

*
*
Ww
—

38, 48,
50, 51

418 U.S. 506 (1974) ;

District of Columbia v. Clawans,

00 U.S. 617 (1937) ...

District of Columbia v. colts,

13,

82 U.S. 63 (1930) ....

Duncan v. Louisiana
391 U.S. 145, 153-54 (1968)

Dyke v. Taylor Implement gg.,

391 U.S. 216, (1968) ...

395 U.S. 147 (1868)

356 U.S. 165, 183 n.14 (1958)

Landry v. Hoepfner
840 F. zd 1201, 1213 n.25
(Sth Cir. 1988) .

427 U.S. 618, (1976) . 2 .
re '
424 U.S. 319, 348 (1976) .
DD

139 U.S. 621 (1891) ...,

iv

-41, 43-47,

32, 42

34

52

25

17

mut) Vea

’
42 Cal.App. 3d Supp. 4, 8 n.6,

Patton v. United States,
281 U.S. 276, 312 (1930) . - - 13

116 Cal.Rptr. 795 (cal. Super. 1974) 32

’

Schick v. United States
195 U.S. 65 (1904) .....

459 U.S. 553, 558-59 (1983) ..
Se Be 794, (S.D. 1980)
ow x eee r

United States v. Barnett,
376 U.S. 681, 692-700 (1964) . .

25 (1981) .

652 F.2d 23,

’

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

United States v. Stewart,

568 F. 2d 501 (6th Cir. 1978) . .
United States v. Woods,

450 F. Supp. 1335 (D. Md. 1978)

*
399 U.S. 78, 87 (1970) 9,

18, 20

o „ „ „ AF

.
.
*
.
Ww
>

20,

Constitutions and Statutes

Nev. Rev. Stat. § 484.3792
(1983) > > * > . * * > * * * * 38, 39, 49

Nev. Rev. Stat. 484.3794 386, 37
1983 Nev. Stat. 1068-72 .... 37

Nevada Revised Statutes §484.3792
(1983) >. >. > > > > > * >. * — — > >. — >. > 36

U * 8 * Const * Amend * VI * * * * * * * * > 8

OE „„ „„ „ 0

Legislative Materials

Legislative Commission of the Legislative
Counsel Bureau of the State of Nevada,

Driving While Intoxicated, Bull.No. 83-7
at 1 (1982) * > > > > > > > 35, 41

Other Authorities

Judges, Reno Gazette-Journal,
Feb. 17, 1983 > >. > >. > * — > * > 40, 54

H. Kalven & H. Zeisel,
The American Jury 15 (1966) 9, 55, 59

vi

— tea ie

Kimble, George Ceccarelli On Drunk Drivers: |
“Let the Sentence Fit the Crime", The
Nevada Highway Patrolman, vol. III, no. 1,
(Jan. 1983) * * * > * >. > >. * * * >. 40, 56

The Changing Role of the Jury in the Nine-
teenth Century,
74 Yale L. J. 170, 171-72 (19643) 10

Morrison,

on DUI Deaths, Reno Gazzette-Journal,
November 22, 1987 >. > „ > * > >. > 7 >. > 35

Phillis,

Punch, Reno Gazzette-Journal, April 18,
1988 > >. >. >. o > — > >. * * * * > > 35, 54

vii

then RAEI ES Vai Bere DoE at sey ast o

.

rr

.

INTEREST OF MMI

The American Civil Liberties Union
("ACLU") is a nationwide, non-partisan
organization of over 250,000 members dedi-
cated to defending the Bill of Rights and
advancing the civil rights and individual
liberties of the people of the United
States. The American Civil Liberties Union
of Nevada is one of the ACLU's state
affiliates.

This case presents the question
whether the constitutional protection of a
trial by jury should be afforded to indi-
viduals accused of driving while under the
influence of alcohol, who are facing
serious deprivations of liberty and

property, including incarceration and

pursuant to Rule 36.2 of the Rules of this
Court, letters of consent from the parties have
been filed with the Clerk of the Court.

monetary sanctions. Amici believe that
persons accused of serious criminal
offenses possess a fundamental consti-
tutional right to be tried by a jury, and
that the decisions of this Court support
the recognition of this right in the
instant case. Accordingly, we submit this
brief in support of Petitioners, and we
urge the Court to reverse the decision of

the court below.

STATEMENT OF THE CASE2/

Petitioner Melvin R. Blanton was
accused of driving while under the influ-
ence of alcohol ("DUI"). Following the
denial of his request for jury trial of the
charges against him, Petitioner filed a
petition for writ of mandamus. The Eighth
Judicial District Court of Nevada denied
Blanton's petition for writ of mandamus,
and he appealed to the Nevada Supreme
court. Petitioner Mark D. Fraley, like
Blanton, was charged with DUI, but
following the denial of his motion for jury
trial he pled guilty. Fraley was sentenced

to a period of incarceration and was

2/ amici adopt the Statement of the Case
set forth in Petitioner's Brief, but here
highlight the facts most relevant to the

argument presented infra.

* See generally Joint Appendix (hereafter
"J.A.") at 6, 13-15, 20-23.

ordered to pay a fine by the North Las
Vegas Municipal Court.4/ Fraley
subsequently challenged his conviction on
the ground that the denial of a jury trial
violated his federal constitutional rights.
Fraley's appeal to the Eighth Judicial
District Court was successful, and his case
was remanded to the municipal court, with
instructions to conduct a jury trial.

The City of North Las Vegas, Nevada
appealed the District Court's decision,
however, and the Nevada Supreme Court
granted the City’s petition for review. 2&/
= Nevada Supreme court summarily rejected

petitioners' argument that the denial of

jury trials on their DUI charges violated

4/ J.A. at 1.
S/ J.A. at 25-27.

8 J. A. at 28-52, 101.

their constitutional rights and concluded

that since state law "provide[d] a penalty
of .. . six months imprisonment [or less]
for a first-time DUI offense, there is no

constitutional right to a trial by jury."

Blanton v. North Las Vegas, 748 P.2d 292,

299 (Nev. 1987). This Court granted

certiorari on June 20, 1988.2/

SUMMARY OF ARGUMENT

The right to jury trial is a funda-
mental constitutional right which extends
to all persons accused of committing seri-
ous crimes. The offense of driving while
under the influence of alcohol is a serious
crime in Nevada and thus, such cases must
be tried by jury upon the demand of the

accused in order to meet the requirements

J. A. at 102-03.

of the United States Constitution. The
decisions of this Court provide that: (1)
an individual accused of a serious criminal
offense must be afforded the opportunity to
be tried by a jury; (2) where the jury
trial right is not statutorily mandated,
the assessment of the seriousness of the
offense, and hence, the determination
whether a specific offense must be tried by
jury upon the defendant's demand, must be
conducted by the courts on a case-by-case
basis; and (3) to determine whether an
offense is "serious," a court must consider
the maximum authorized period of imprison-
ment, along with a number of other factors
including the collateral consequences
accompanying the conviction, the intrinsic
nature of, and the societal condemnation

attendant to, the particular offense, as

reflected in the nature and type of sanc-
tions imposed upon conviction.

This Court has recognized that the
length of the maximum statutorily author-
ized sentence is not the sole determinant
of the seriousness of an offense for pur-
poses of deciding whether a state may
avoid the constitutional criminal jury
trial requirement. Nevertheless, the
Court below relied exclusively upon the
length of sentence to determine whether
Petitioners were entitled to a jury trial.
Under the tests articulated by this Court,
the offense of driving while under the in-
fluence of alcohol is a serious offense in
Nevada. Thus, the decision nolo, which
deprived petitioners of the jury trials
they requested, contravenes the require-
ments of the United States Constitution and

should be reversed by this Court.

I. AN INDIVIDUAL ACCUSED OF A SERIOUS
CRIMINAL OFFENSE IS CONSTITUTIONALLY
GUARANTEED THE RIGHT TO BE TRIED BY A
JURY.

The Sixth Amendment to the United

States Constitution guarantees that "in all
criminal prosecutions, the accused shall
enjoy the right toa ... trial by an
impartial jury."8/ This Court has recog-
nized that "(t)he right to jury trial in
criminal cases...{is] fundamental to our
system of justice." Duncan v. Louisiana,
391 U.S. 145, 153-54 (1968). The criminal
defendant's right to be tried by a jury

upon demand is significant because it

8/ U.S. Const. Amend. VI. See also U.S. Const.
Art. III, § 2, cl. 3 ("The Trial of all
Crimes...shall be by Jury.“).

prevent (s] the possibility of
oppression by the Government; the
jury interposes between the ac-
cused and his accuser the judg-
ment of laymen who are

less likely to function or appear
as but another arm of the
Government that has proceeded
against hin.

Baldwin v. New York, 399 U.S. 66, 72
(1970). This nation has "a long tradition
[of] attaching great importance to the
concept of relying on a body of one's peers
to determine guilt or innocence as a safe-
guard against arbitrary law enforcement, "2/
and this tradition is clearly reflected in
the Sixth Amendment to the Constitution.22/

2/ Williams v. Florida, 399 U.S. 78, 87
(1970).

10% some commentators have described the
right to trial by jury in criminal cases as
“enshrined” in the Sixth Amendment. H.
Kalven & H. Zeisel, The American Jury 15
(1966). Another commentator has ~oted that
“(ejnthusiasm for the jury“ predated the
ratification of the Sixth Amendment, as
demonstrated by the remark of one observer
in 1788 that the “jury was ‘adapted to the
(continued...)

Accordingly, this Court has recognized that
the right to criminal jury trial, which is
„basic in our system of jurisprudence! /
and essential to a fair trial, '"22/
extends to defendants in the state courts
as well as in the federal courts, and is
“protected against" incursions by the state
and federal governments. 391 U.S. at 148-
49.

On its face, the Sixth Amendment does

not admit any exception for “petty”

2 (. .. continued)
investigation of truth beyond any other
[system] the world can produce. Note,

teenth Century, 74 Yale L.J. 170, 171-72
(1964) (quoting Gerry,
New Constitution

(1788), reprinted in 2
714, 720 (Scott ed. 1894)).

2 Duncan v. Louisiana, 391 U.S. at 149

(quoting In re Oliver, 333 U.S. 257, 273
(1948)).

12 puncan, id., (quoting Gideon x.
Wainwright, 372 U.S. 335, 343-44 (1963)).

10

. dene > ee * .

a
|
;
:
:

crimes.43/ Nevertheless the Court has
recognized an exception for a category of
offenses that are, on the basis of several
criteria, deemed petty. See Baldwin v. New
York, 399 U.S. at 71-72. In such cases, a
jury trial is not constitutionally
required.

This Court first discussed the issue
of the right to jury trial for minor
offenses in Callan v. Wilson, 127 U.S. 540
(1888). There the Court vacated a police
court conviction of conspiracy which
carried a sentence of a $25 fine or thirty
days in jail. In Callan, the Court

13/ Indeed, Justices Black and Douglas were of the
view that the Sixth Amendment ard Article III,
Section 2, made no distinction between "petty" and
"serious" crimes. Baldwin v. New York, 399 U.S.
66, 69. As Justice White noted in Baldwin, the
legal distinction may be unpersuasive to the ac-
cused since "the prospect of for how-
ever short a time will seldom be viewed by the
accused as a trivial or 'petty' matter." Id. at
71.

11

observed, in dictum, that there was a
class of offenses “not of the class or
grade triable at common law by a jury"
that could be considered “petty” and thus,
could be tried without a jury in federal
court. However, the Court concluded that
conspiracy was an offense indictable at
common law, and thus, the right to jury
trial could not be bypassed in such cases.
127 U.S. at 555.44/ Eventually, the Court
was squarely presented with the issue of
whether the denial of a jury trial for
persons accused of offenses characterized

as “petty” constituted a violation of the

12

Sixth Amendment. See District of Columbia

v. Clawans, 300 U.S. 617 (1937) .22/
Even with the exception for petty

offenses, this Court has recognized that
"(tjrial by jury has been established by
the Constitution as the 'normal and...
preferable mode of disposing of issues ot
fact in criminal cases. / his Court
has never rejected the premise that "the
right of the accused to a trial by. .
jury [must] be jealously preserved, "17/
and, for the reasons set forth more fully

infra, the case now before the Court is one

15/ In dicta, the Court addressed the issue in
several cases between 1888 and 1937. See Natal v.
State of Louisiana, 139 U.S. 621 (1891); Schick v.
United States, 195 U.S. 65 (1904); District of
Columbia v. Colts, 282 U.S. 63 (1930).

16/ , 380 U.S. 24, 35

Singer v. United States
(1965), (quoting Patton v. United States, 281 U.S.
276, 312 (1930)).

17/ patton v. United States, 281 U.S. 276, 312
(1930).

13

which demands and deserves this Court's

intervention to preserve this important

constitutional right.

The decisions of this Court have

provided useful guidance for determining
whether an offense is petty or serious for
the purposes of the Sixth Amendment. This
Court has developed a three-part test for
evaluating the severity of an offense.

The essential elements of that structure
include consideration of: (1) whether a
crime is serious, either intrinsically or
as a result of the gravity ff potential
penalties; (2) whether an intrinsically
serious crime has been or could be

14

classified as petty by mere reduction of
the sentence imposed; and (3) whether an
intrinsically petty crime has developed
into a serious one due to an escalation of
the authorized penalties. Courts, not
legislators or prosecutors, are the
accepted and proper arbiters of whether the
Sixth Amendment requires a jury trial for
any given offense. Courts are vested with
the constitutional task of assessing

whether a crime is serious or petty. As

stated by the Court in Duncan v. Louisiana:

Of course the boundaries of the
petty offense category have
always been ill-defined, if not
ambulatory. In the absence of an
explicit constitutional

provision the definitional task
necessarily falls on the courts,
which must either pass upon the
validity of legislative attempts
to identify those petty offenses
which are exempt from jury trial
or, where the legislature has not
addressed itself to the problen,
themselves face the question in
the first instance.

15

391 U.S. at 160. As the Ninth Circuit
Court of Appeals has observed, in the
absence of judicial action, "the
constitutional right to a jury trial would
exist only at the sufferance of the
legislative branch." United States v.
Craner, 652 F.2d 23, 25 (1981).

The evaluation of whether the offense
is intrinsically serious requires consider-
ation of three factors: (1) whether the
crime is indictable at common law; (2)
whether the offense is malum in se; and (3)
whether the offense involves moral delin-
quency or turpitude. Crimes indictable at
common law are uniformly regarded as
serious, despite the insignificance of the
penalty attached. See, e.g., Callan v.
Wilson, 127 U.S. at 555-557 (conspiracy
held to be a serious offense despite

assessed sentence of thirty days in

16

prison). Crimes mala in se are similarly
deemed serious despite relatively brief
authorized sentences to be imposed upon a
finding of violation of the relevant

law. 10 See, e.g., District of Columbia v.
Colts, 282 U.S. at 73-74 (reckless driving
is malum in se and thus requires jury trial
notwithstanding penalty limited to $300
fine or ninety days imprisonment). Cf.
District of Columbia v. Clawans, 300 U.S.

at 625 (holding that license violation was
a morally inoffensive mala prohibita

offense, and thus was not triable by

If the offense is not, by its nature,
serious, then this Court instructs that the
next consideration is whether the sentence
imposed is sufficiently serious to elevate

the offense from the “petty” to "serious"

category. In Schick v. United States, this

Court indicated that a crime petty by
nature could rise to the level of "serious"
solely on the basis of the sentence

imposed. 195 U.S. at 67-68. That view was

reaffirmed in District of Columbia x.
Clawans:

[This Court has refused to
foreclose consideration of the
severity of the penalty as an
element to be considered in
determining whether a statutory
offense, in other respects
trivial and not a crime at common
law, 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 prescribed by the Consti-
tution.

300 U.S. at 625.

18

In a spate of decisions between 1966
and 1970, a number of which concerned
sanctions for criminal contempt, the Court
refined and elaborated upon the aforemen-
tioned analysis without departing from the
basic principies. The analysis of criminal
contempt proceeded along the conventional
lines. The Court inquired whether contempt
was by its nature serious, and if not,
whether the penalty authorized was suffi-
ciently long to make it so.

In Cheff v. Schnackenberg, 384 U.S.
373 (1966), the Court affirmed that cri-
minal contempt is not a crime which is per
se serious. "[(C)riminal contempt, intrin-
sically and aside from the particular
penalty imposed [is] not deemed a serious
offense requiring the protection of the

constitutional guarantees of the right to

19

jury trial." Id. at 378-80.22/ However,
even criminal contempt is no longer viewed
as petty if it carries a potential penalty
of more than six months. Bloom v.
Illinois, 391 U.S. 194 (1968). See also

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

In Duncan v. Louisiana, this Court
elaborated upon the significance of the
maximum authorized sentence (as contrasted
with the sentence actually imposed or
served) as a relevant criterion for

establishing the severity of an offense. 22/

42/ cf. Williams v. Florida, 399 U
(1970) (Harlan, J., concurring in a ont *
dissenting in part) ("In Clawans, the Court held
the severity of punishment was not determinative
when the offense by its own nature is not
considered grave.... {In Callan v. Wilson, 127

U.S. 540, 556 Schick YX. United States
65], this Court noted the nature —

offense and the severity of punishment are
distinct considerations.") — aaah.

20/ See Duncan, 391 U.S. at 160.

20

In Duncan, the defendant was sentenced to
60 days imprisonment for "simple battery,"
but imprisonment for up to two years was
authorized by the applicable statute. This
Court found that the conviction violated
the Constitution, and held that "the
penalty authorized for a particular crime

. .. may in itself, if serious enough,
subject the trial to the mandates of the
Sixth Amendment."21/ The court added that
"“(cjrimes carrying possible penalties up to
six months do not require a jury trial if
they otherwise qualify as petty offenses."
Id. at 159 (emphasis supplied)
Significantly, though, Duncan does not
identify the severity of sentence as the
sole factor for assessing the seriousness

of an offense, and the concomitant trial

21/ puncan v. Louisiana, 391 U.S. at 159.

21

¢
procedures to be extended to persons
charged with the offense. "While this
Court has said that the most significant
index to the seriousness of an offense if
the degree of penalty that attaches ...
this is not alone determinative .... [T]he
‘apportioned punishment lat common law) was
both a consequence of the ... quality of
the misconduct and an index of the commun-
ity's moral judgment upon it.“ Williams
Vv. Florida, 399 U.S. at 121 n.7 (Harlan,
J., concurring in part and dissenting in

part) (1970) (quoting Frankfurter &

Corcoron, Petty Federal Offenses and the
Constitutional Guaranty of Trial by Jury,

39 Harv. L.Rev. 917, 980 (1926)) (emphasis
supplied).

While Duncan held that in some cases
"the length of the authorized prison term

or the seriousness of other punishment is

22

enough in itself to require a jury
trial,"22/ it does not affect the corollary

principle that even offenses bearing
shorter potential terms of imprisonment may
also be serious crimes, thereby requiring
the attendant procedural guarantees
extended to persons accused of committing
them. See also, Frank v. United States,
395 U.S. 147 (1969); Baldwin v. New York,
399 U.S. 66 (1970).

Baldwin v. New York, id., held that

any crime carrying a maximum authorized
sentence of more than six months is
necessarily serious. This bright-line
standard for assessing the severity of an
offense was first suggested in Cheff v.

Schnackenberg, 384 U.S. 373, where this
Court, relying upon its supervises: y power,

22/ 391 U.S. at 161.

23

imposed a six-month limit on sentences
imposed by federal courts in contempt pro-
ceedings. In Baldwin v. New York, the
Court squarely addressed the issue,
holding that "no offense can be deemed
petty for purposes of the right to trial
by jury where imprisonment for more than
six months is authorized." 399 U.S. at 69
(emphasis supplied).

This Court has repeatedly adhered to
the basic principle that the Sixth Amend-
ment assessment of the seriousness of a
crime depends upon its intrinsic nature as
well as the severity of the maximum

authorized penalty. Finally, a crime

23/ In Codispoti v. Pennsylvania, 418 U.S. 506
(1974), the Court held that petty contempt could be

serious by nature may not be made petty

merely by reducing the maximum authorized

absent legislative
422 U.S. at 476 (emphasis supplied)
Massachusetts, 427 U.S. 618, (

held Massachusetts’ two-tier system

sentence,24/ and a crime petty by nature
could be made serious by increasing the
maximum sentence.22/ Thus, it is clear
that the severity of a crime depends upon
both the nature of the offense and the
penalty imposed.

The most significant doctrinal
development in the judicial process of
establishing the boundaries required by
Duncan has been the evolution of objective
standards for evaluating the severity of an
offense. This Court suggested in Baldwin
that in deciding whether an offense is
"petty" or serious,“ courts should look

to objective criteria reflecting the

24/ cf. Baldwin v. New York, 399 U.S. at 76 n.2
(Black, J., concurring) (“ben the sanction lin-
posed against an individual] bem all the indicia
of a criminal punishment, a jury trial cannot be
denied by labeling the punishment 'petty.'").

22/ See supra note 23.

26

seriousness with which society regards the
offense. Baldwin also indicates that the
maximum authorized length of imprisonment
is a relevant objective criterion. How-
ever, the maximum authorized sentence is
but one objective criterion, and the
courts must look to all the relevant
criteria in each particular case. The
additional measures of the severity of a
crime, as is clear from the Court's opin-
ions dating back to 1888, are based upon
four factors: historical and federal
practices, collateral consequences, and
contemporary responses to criminal acts.
An example of the importance of
historical practice is the tradition of
punishment for contempt of court. The fact
that for centuries contempt has been sum-
marily punished weighed heavily in the

Court's conclusion that contempt was not

27

intrinsically serious. See Green v. United
States, 356 U.S. 165, 183 n.14 (1958);

United States v. Barnett, 376 U.S. 681,
692-700 (1964). See also District of
Columbia v. Clawans, 300 U.S. at 625-26
(discussing standards prevailing at time of
adoption of Constitution as a guidepost for
the Sixth Amendment assessment of the
seriousness of an offense).

Similarly, the federal practice of
defining petty offenses as the category of
offenses punishable by not more than six
months imprisonment and a $500 fine in-
fluenced this Court's decision that the
right to jury trial must be extended to a
person accused of committing crime for
which the authorized sentence exceeded six

months. See Duncan v. Louisiana, 391 U.S.
at 161.

28

Another important consideration is
whether serious collateral consequences
attend conviction for the offense. In
Baldwin, Justice White examined the col-
lateral consequences in assessing the
gravity of conviction for felonies and
misdemeanors and in establishing "that
some misdemeanors are also serious
offenses."28/ Lower federal courts2// and
state courts28/ have also considered the

collateral consequences in assessing the

26/ 399 U.S. at 70. See generally id. at 69 n.8;

see also — , 300 2
at 628 (practices of ty taken as gauge o
its social and ethical judgments).

27/ See, ed. „ 652 F.2d

*
23, 25-26 (9th Cir. 1981).

28/ See, 8. , 291 M. M. 2d 793,
754, (S.D. 1980) ("To detennine whether a crime is
serious or petty, we look to ... whether society
views the offense with extticiek — and
the consequences of conviction.");

„ 471 P. ad 386, 395, 401 (Alaska 1970)
("(c]ollateral consequences to the accused are
reflected by our mores and standards.").

29

constitutional necessity of providing a
jury trial.

Finally, the Court has relied heavily
on the sanctions currently imposed for the
criminal offense. For instance, in Duncan
v. Louiisiana, the Court examined other
states practices in punishing simple bat-

tery. 391 U.S. at 161. See also Baldwin
Vv. New York, 399 U.S. at 70-71 (practices
of states relevant to six month rule).

The Ninth Circuit held in United
States v. Craner, 652 F.2d 23, that driving
under the influence of alcohol in a
national park was a serious offense, even
though it carried a six months maximum

sentence. The court stated:

The extent of possible punishment
does not, however, alone deter-
mine whether an offense is seri-
ous or petty. Otherwise the
constitutional rights to a jury
trial would exist only at the
sufferance oi the legislative
branch.

30

To gauge the seriousness of an
offense, the Supreme Court has in
recent years looked to the
authorized penalty and to the
“relevant rules and practices
followed by the federal and state
regimes."

{In addition,] consideration of
the future [collateral conse-
quences] of conviction [is rele-
vant] in deciding whether an
offense is a serious one
(emphasis supplied) (citations
omitted).

Id. at 25-26.22/

State courts are also in agreement
with the Ninth Circuit. A thorough
consideration of the issue appears in State
v. Wilke, where the Court stated:

To determine whether a crime is

serious or petty, we look to the

maximum punishment ... and the

nature of the offense, and con-
sider its common law background

22/ See also United States v. Stewart, 568 F.2d
501 (6th Cir. 1978); United States v. Sanchez-Mesa,
547 F.2d 461 (9th Cir. 1976); United States v.
Woods, 450 F. Supp. 1335 (D. Md. 1978); and Brady
v. Blair, 427 F. Supp. 5 (s. b. Ohio 1976).

31

., Whether society views the

offense with sufficient oppro-

brium, and she consequences of

conviction.
291 N.W.2d at 794.

In District of Columbia v. Clawans,
300 U.S. 617, the Court examined a District
of Columbia statute that proscribed en-
gaging in the business of selling second-
hand property (in that case, the unused
portion of a railway excursion ticket)
without a license. The Court held that the
offense was “at most but an infringement
of local police regulations, and its moral
quality is relatively inoffensive." 300
U.S. at 625. Indeed, such would probably

be most people's definition of a petty

30/ Ses also Bruce v. State, 614 P.2d 813, 815,
126 Ariz. 271, 273 (1980) ("Other criteria include
whether the offense was classified as a crime at

Supp. 4, 8 n.6, 116 cal. tr. 795 (Cal.Super. 1974)
(noting that Codispoti spoke of contempt only).

32

crime today. In contrast, however, a DUI
charge in Nevada is hardly a “relatively
inoffensive" transgression of “local police
regulations." With the mandatory jail
sentence for first offenders, automatic
revocation of driver's license, increasing
penalties and imprisonment, not to mention
the economic sanctions and great public
opprobrium brought down upon the offender,

it cannot be said to be a "petty" offense.

II. DRIVING UNDER THE INFLUENCE OF ALCOHOL
IS A SERIOUS CRIMINAL OFFENSE IN
NEVADA, AND THERE IS NO JUSTIFICATION
FOR THE DENIAL OF PETITIONERS'
FUNDAMENTAL RIGHT TO BE TRIED BY A
JURY ON THESE CHARGES.

Driving under the influence is a

serious problem nationwide, as this Court

33

has observed. "The carnage caused by drunk
drivers is well documented.... This Court
.. has repeatedly lamented the
tragedy. "21/ The nature of the offense
itself, the harsh collateral consequences
attendant to DUI conviction, and the fact
that the penalty for the offense includes
mandatory imprisonment reflect the
seriousness of the crime in Nevada.22/
Nevada, like the rest of the nation,
has recognized that DUI is a serious
offense and has acted to impose more severe
sanctions for violation of its laws against
drunk driving. "The Legislature passed (a]
stiffer DUI law in 1983, calling for a

31/ south Dakota v. Neville, 459 U.S. 553, 558-59
(1983). See also Breithaupt v. Abram, 352 U.S. 432,
439 (1957); Tate v. Short; 401 U.S. 395, 401 (1971)

(Blackmun, J., concurring); Mackey v. Montrym, 443
U.S. 1, 17-19 (1979).

32/ See Bronson v. Swinney, 648 F.Supp. 1094 (D.
Nev. 1986).

34

— . — . LEöǗÿwömãa

mandatory minimum two-day jail sentence or
48 hours of public service for first-time
offenders. It was one of the strictest
anti-DUI laws in the nation."33/ The 1981
statistics on alcohol-related traffic
fatalities in Nevada afforded Nevada the
unenviable distinction of “rank{ing]) first
among the states in fatal traffic accidents
for the number of miles driven. 4 such
statistics reportedly prompted the 1983 and
1985 state legislative efforts to enact
"tougher DUI laws" and to "crack (! down

on drunk driving offenses."22/ such legis-

lative efforts reflect the prevailing
sentiment in Nevada that DUI is a serious
offense.

In Nevada, a first DUI offense is
serious, even though labelled a misde-
meanor. Nevada Revised Statutes §484.3792
(1983) provides that, for a first offense
DUI, the court shal]:268/

(1) Order the offender to pay

tuition for an educational course

on the abuse of alc 1 and con-

trolled substances;
(2) Unless the sentence is

32/ (...contimued)
the second time someone is arrested for DUI." Id.

reduced pursuant to Nev. Rev.
Stat. 484.3794, sentence him to
imprisonment for not less than
two days nor more than six months
in jail, or to perform forty-
eight hours work for the con-
munity while dressed in distinc-
tive garb that identifies him as
a DUI offender; and (3) Fine
him not less than $200 nor more
than $1,000.

The educational course, mandatory jail
time and mandatory fine of $200 to $1,000,
were added to the statute by amendment in
1983.28/ additionally, the Nevada law
provides:

3. No person convicted of
violating the provisions of NRS
484.379 may be released on pro-
bation, and no sentence imposed
for violating those provisions

may be suspended. No prosecuting
attorney may dismiss a charge of
violating the provisions of NRS
484.379 in exchange for a plea of
guilty or nolo contendere to a
lesser charge or for any other
reason unless he knows or it is
obvious that the charge is not
supported by probable cause or

38/ See 1983 Nev. Stat. 1068-72.

37

— 29 proved at the time of
trial.

As noted in Bronson v. Swinney, 648
F.Supp. 1094 (D.Nev.1986), statutory
limitations on prosecutorial and judicial
discretion are exceptional, and a mis-
demeanor criminal statute with a mandatory
jail term is quite unusual. Even some of
the most heinous crimes are not punishable
by mandatory imprisonment without the pos-

sibility of release on probation." Id at

1099. In making a decision as to whether a

crime is petty or serious, courts are to

look to “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." District of
Columbia v. Clawans, 300 U.S. at 628. The

ne. Rev. Stat. §484.3792(3) (1983) (emphasis
suppl ied) .

38

amendments to the DUI statutes of Nevada
restricting judicial and prosecutorial
discretion and mandating, inter alia, in-
prisonment with no probation objectively
demonstrate that the people of Nevada
consider DUI a serious offense in every
instance:

DUI may not always have been con-
sidered a serious offense, but it has now
become a matter so clearly disfavored in
Nevada that the punishment and the col-
lateral consequences of conviction have
been repeatedly enlarged. This development
in Nevada is further illustrated by the
fact that both prosecutors and judges have
been legislatively stripped of discretion
in the disposition of DUI cases42/ in an
effort to ensure that punishment for the

4% see Nev. Rev. Stat. § 484.3792(3) (1983).

39

offense is “certain, severe and swift. "4l/

The general populace now views DUI as

a serious criminal act and greatly

disapproves of DUI offenders.42/ Like the
rest of the country, Nevada has attempted
to respond to the public perception that
drunk driving is a widespread and serious
societal problem.43/ The punishments pro-
scribed by Nevada law leave no doubt as to
the legislative judgment about the serious-
ness of the crime. Increased penalties for
drunk driving leave little doubt that dri-
ving under the influence is now viewed as a
serious problem and as a serious crime.
While the maximum authorized sentence
for an offense is clearly relevant to the

Court's consideration of the seriousness of

42/ This disapproval is perhaps not surprising in
light of statistics suggesting that nearly half the
people in the nation will at same time be involved
in an alcohol-related autamobile accident. Landry
v. Hoepfner, 840 F.2d 1201, 1213 n.25 (5th Cir
1988).

43/ See generally Legislative Commission of the
legislative Counse] Bureau State of Nevada,

of
Driving While Intoxicated, Bull.No.83-7 (1982).

41

the DUI offense in Nevada, Chief Justice
Rehnquist cautioned in Codispoti that the
length of sentence test should not be
“woodenly" applied. Codispoti, 418 U.S.
525, 536-37. Also, this Court, in Duncan
v. Louisiana, held that, "[{ijn determining
whether the length of the authorized prison
term or the seriousness of other punishment
is enmeugh in itself to require a jury
trial,” courts are counseled "to refer to
objective criteria, chiefly the existing
laws and practices in the Nation." 391
U.S. at 161. Moreover, the Court, in
District of Columbia v. Clawans, recognized
that standards of action and of policy vary
considerably from generation to generation,
and that crimes and punishment once thought
to be mild may come to be regarded as
harsh, calling for a jury trial, even
though a jury trial may not have been

42

provided for prior to the adoption of the
Constitution. 300 U.S. at 627. All
indicia of an offense recognized as
“serious” by this Court are present in the
case of DUI in Nevada.

The “wooden{ ]“ application of the
six month rule has, in at least one case,
yielded a result which amici believe is
clearly inconsistent with the requirements
of the Sixth Amendment. Landry v.
Hoepfner, 818 F. 2d 1169 (5th Cir. 1987),
rev'd en banc, 840 F.2d 1201 (5th Cir.
1988), involved a state statutory scheme
which, like the Nevada legislation, imposes
serious penalties for a first offense DUI
conviction including a mandatory jail sen-
tence, period of community service, and/or
participation in a substance abuse treat-
ment program, but nevertheless does not

provide for jury trials in such cases.

43

See 840 F.2d at 1202-04. The Court of
Appeals wrote in Landry:

[It is clear that an infraction
may be a ‘petty offense,' for
which the United States Consti-
tution does not require that
there be a right of trial by
jury, notwithstanding that it is
Clearly a ‘crime' which may be
punished by as much as six
months' imprisonment.... [Alt
least respecting offenses not
indictable at common law, when
the legislature of a state elects
to make criminal certain conduct
within that state's borders, it
is likewise entitled to determine
that the offense it has created
shall not be a serious one by

fixing 'petty' under the bright-
line rule of paldwintd/
Thus, the wooden application of a bright
line rule for determining whether an of-
fense is sufficiently serious to require
trial by jury led the Fifth Circuit Court
of Appeals to permit the state to

circumvent the requirements of the Sixth

44/ 840 F. ad at 1206, 1210 (citation omitted).

44

Amendment by allowing it to impose
"“sanction(s which] bear[{ ] all the indicia
of a [serious] criminal punishment" while
denying the right to jury trial merely by
labeling the punishment [and the offense)
‘petty.'" Baldwin v. New York, 399 U.S.
66, 76 n.2 (Black, J., concurring). Amici
submit that the Landry court erred by
mechanistically applying a six-month rule.
The majority in Landry simply determined
that driving under the influence was not an
indictable offense at common law,42/ and
concluded that since the maximum sentence

did not exceed six months, the offense

45/ put see , 840 F.2d 1201,
1220 114
(mert ]“ with the majority's “conclusion that DWI

was never an indictable offense at common law,"
and noting that it was not indictable at common
law...because the offense did not exist at common

law.") (emphasis supplied) .

45

should not be considered a serious one
requiring a jury trial.

In addition, the Landry Court
attempted an untenable distinction between
the situation presented by the Louisiana
DWI statute and District of Columbia v.
Colts, 282 U.S. 63, which held that a
person charged with reckless driving must
be provided a jury trial upon demand,
although the maximum authorized imprison-
ment was thirty days. The majority's
distinction defies logic. In Nevada and
elsewhere, DUI is currently considered a
more serious offense than reckless
driving.48/ Nevertheless, to reach the

conclusion that the reskless driving charge

46

in Colts was more serious than a modern-day
DUI charge, the Landry Court held that the
reckless driving in Colts was not just
“reckless driving“ but driving so reck-
lessly as to endanger property and indi-
viduals." 840 F.2d at 1212. Implicit in
this holding is the conclusion that drunk
driving is not “driving so recklessly as to
endanger property and individuals." This
conclusion is simply untenable. Neverthe-
less, the end result of Landry is that a
person accused of reckless driving is en-
titled to a jury trial,42/ hut a person
accused of DUI is not similarly afforded a
jury trial upon request in Nevada. This
result is clearly incongruous and contrary

to public policy and, for the reasons set

47/ See Colts, supra.

47

forth supra, should be rejected by this
Court.

Nevada's statutory scheme imposes

additional serious collateral consequences

for a conviction of driving under the
influence. The offender faces automatic
driver's license revocation. Nev. Rev.
Stat. § 484.384. As noted by the court in
Bronson v. Swinney, in Nevada, where
distances are great, the revocation of a
driver's license is a serious matter.
“Driving is nearly imperative to the
ability of many people to earn a living."
648 F.Supp. at 1099. Another major
consequence is that the penalties provided
in the statute compound so that the third
conviction within a seven year period
carries a mandatory penalty of imprisonment
in the state prison for not less than one

year nor more than six years, and a fine of

48

not less than $1,000 nor more than $5,000.
Nev. Rev. Stat. § 484.3792. Additionally,
the names of DUI offenders in Nevada are
regularly published in the newspapers,
thereby exposing DUI offenders to

even greater stigma. 648 F.Supp. at 1099-
100. Obviously a first or second DUI
conviction will have greater collateral
consequences than a first or second
conviction for most misdemeanors.

In light of the threat of mandatory
jail time without the possibility of pro-
bation, automatic driver's license revo-
cation, escalation of penalties faced for
subsequent DUI offenses, public opprobrium
and the serious economic repercussions
affecting the average individual charged
with a DUI, the offense must be considered
serious.

Driving while intoxicated is
a deadly crime. The people of

49

the State of Nevada, through
their legislature and in other
ways, have clearly evinced a
feeling that driving while
intoxicated is a serious crime.

Bronson v. Swinney, 648 F.Supp. at 1100.
In Nevada, DUI is clearly a serious
criminal offense and thus, petitioners
should have been afforded an opportunity

for jury trial on the charges against then.

The Court below held, inter alia, that

[A] non-jury trial, in a misde-
meanor case, is speedy and inex-
pensive. On the other hand, a
decision of this court requiring
jury trials in the prosecution of
DUI offenses in the municipal
court would result in tremendous
expense to the municipalities of
this state. ([Sjerious finan-
cial, administrative, and policy

50

concerns (would arise if tjhe
position of the federal district
court in renden were ... to
be adopted by this court....

Blanton vy. North Las Vegas, 748 P.2d 494,
501-02 (Nev. 1987). This conclusion is
troubling for a number of reasons.

Amici note, at the outset, that
administrative burdens alone cannot justify
the denial of a fundamental constitutional
right. As discussed fully supra, the
decisions suggest that the right to jury
trial for an individual accused of DUI in
Nevada is such a right. However, assuming
arguendo that the court below has properly
identified state interests which must be
balanced against the petitioners' consti-
tutional interests, it is appropriate to
consider whether the government's interests

here outweigh the interests served by pro-

51

viding DUI defendants the option to request
trials by jury.48/

This Court has identified "the inter-
position between the accused and his
accuser of the common sense judgment of a
group of laymen, and ... the community par-
ticipation and shared responsibility that
results from that group's determination of
guilt and innocence" as the “essential
feature(s) of a jury." Williams v.
Florida, 399 U.S. 78, 100 (1970). These
“feature(s) of a jury“ are among the
interests which would be served by
affording petitioners the opportunity for
jury trial. One federal judge, evaluating

U.S. 319, 348 (1976).

his experience with jurisdictions that only
provide bench trials for persons accused of
DUI, has written:
[IIn many ... jurisdictions,

DWI cases are handled as if ina

mass production line.... An

offender who believes that he was

unlawfully charged with driving

while intoxicated would have the

protection of ... having his case

tried by a jury [if the appro-
priate assessment of the serious-

nada] DUI offense were

While the judges in a jurisdiction which
requires bench trials in all DUI cases may
not intend to deliver “mass production"
justice, the Nevada experience to date
suggests that it may prove difficult to
avoid this result where “everyone in the
court is loaded with work," and keeping!
up with the added DUI cases . requires

42/ Jandry v. Hoepfner, 840 F.2d 1201, 1220 (5th
Cir. 1988) (Garza, J., dissenting) .

53

conducting) an average of two trials ...
every day.

An additional pressure evidently
exerted upon Nevada's judges in DUI cases
is the perception that "the state's courts
lalre being too lenient on drunken
drivers. This perception is
sufficiently widespread to have prompted
amendment of the state's DUI l#ws to
"“remove...discretion from the judges."22/
Where, as here, judicial as well as prose-
cutorial discretion is severely curtailed
by statute, the accused might opt for a
jury trial because he believes that the

jury “represents an impressive way of

20/ Phillis, Officials Fear Tougher Laws Losing
Punch, Reno Gazette-Journal, April 18, 1988 at 20.

54

building discretion, equity, and flexi-
bility into a legal system. Not the least
of the advantages is that the jury, re-
lieved of the burdens of creating prece-
dent, can bend the law without breaking
it."22/ Judges administering DUI laws
have also been subjected to monitoring by
groups such as Mothers Against Drunk
Driving24/ and Concerned Citizens and
Victims of Drunk Drivers.22/ one exhibit
to the record of the Nevada Legislature's
1983 joint hearing on the DUI laws warned
that “judges ... had best start watching
those court-watchers appearing more and

more regularly in their courtrooms to

53/ Kalven & Zeisel, supra, note 10 at 498.
Ses, Exh. D. to the Mimutes of the Nevada
State Legislature Joint Hearing on Drunk Driving
(Feb. 17, 1983). at 65-66.

es Kimble, supra note 40 at 49.

55

observe drunk driving proceedings. They're
MADD [Mothers Against Drunk Driving)
ladies, and they're starting to keep tabs.
The results could be embarrassing come next
election."28/ This is not an idle threat
since judges at all levels of the Nevada
judiciary are popularly elected. In
Nevada Highway Patrolman, the founder of
Concerned Citizens and Victims of Drunk
Drivers, said that on one occasion her
court monitoring led the judge to deny a
motion for reduction of bail in a DUI
case. under the circumstances, a

defendant's interest in the jury trial

28/ See supra note 53.
ges Nev. Const., Art. VI, §§ 3 and 5.

28/ Kimble, supra, note 40 at 49. Later in the
interview C founder George Cec: 111 discusses
a case where a DUI deferdant receiveu an
“unusual(ly)" harsh sentence. After the sentencing
she introduced herself to the defendant's lawyer
and, according to Ceccarelli, he replied, ch, now
I know why he got such a stiff sentence.'" Id.

right is substantial, and preservation of
that right is particularly important here
"to protect against ... judges too respon-
sive to the voice of higher authority,"
and to provide a necessary “safeguard
against the compliant, biased, or eccentric
judge." Duncan v. Louisiana, 391 U.S. at
156.

Due to the pressure brought to bear
on prosecutors and judges by outraged
citizen groups against drunk driving, 22/

there is a real danger of assembly line

22 one Nevada newspaper campared the legislative
debate of the DUI legislation in 1983 to a “binge”

justice being meted out by overzealous
prosecutors and judges when jury trials
are 1.9t allowed. The very purpose of the
Sixth Amendment is to protect citizens in
sericus criminal cases against arbitrary
and oppressive law enforcement. The DUI
defendant in Nevada is charged with a
serious crime in all respects and should be
guaranteed a jury trial to prevent such
arbitrariness and oppression.

While the decision below cited the
“tremendous expense“ which would result
from the application of the Sixth
Amendment jury trial right in the cases of
DUI defendants, this Court noted, in
Baldwin v. New York, that “(e)xperience in
other States ... where jury trials are
available for all criminal offenses
including traffic violations ... suggests
that the administrative burden is likely to

58

be slight, with a very high waiver rate of
jury trials." 399 U.S. at 74 n. 22.80
Although comprehensive information is
unavailable at this time, statistics
furnished by the Justice Court of Nevada's
second largest city support this Court's
assertion in Baldwin that the additional
administrative burdens imposed upon the
state will not be great.

In 1986, the Reno Justice Court began
to allow jury trials upon request by indi-
viduals charged with DUI. In 1986, all
707 individuals charged with DUI were
informed that they could elect a jury
trial; only 111 requested a jury trial, and
only one jury trial was conducted in 1986,
at a total cost of $284.70. In 1987, of
897 individuals charged with DUI, only 126

S Accord Kalven & Zeisel, supra note 10 at 24-
31.

requested a jury trial, and twelve trials
were conducted, at a total cost of
84,961.36. % although this information is
limited, it clearly contradicts the conclu-
sion that "[(t)jhe resulting expense to the
municipality ... [is sibstantial enough to}
deter the prosecution of DUI offenses."
Blanton, 784 P.2d 484, 501.

Finally, it is significant that a
majority of the states have been able to
extend to DUI defendants the very
protection the state seeks to deny here
without experiencing the calamitous
results predicted in the decision below. 2

S1/ unpublished Reports of the Reno, Nevada
Justice Court Statistics. (December 31, 1986 and
December 31, 1987). (Furnished by Carolyn
Higgins, Chief Criminal Clerk of the Reno, Nevada
Justice Court).

S2/ here is some disagreement about the precise
ramber and circumstances of the states providing
DUI defendants with jury trials upon demand,
Landry v. Hoepfner, 818 F.2d 1169, 1174 n.2
(continued. . .)

60

When one weighs the importance of the
liberty interests implicated by DUI
conviction against the administrative and
fiscal burdens of the additional due
process protection being requested, it is
apparent that a DUI defendant in Nevada
should be entitled to a jury trial upon

demand.

CONCLUSION
For the reasons set forth above, amici
respectfully urge this Court to reverse the
decision below.

Respectfully submitted,

Dan C. Bowen

(Counsel of Record)
Lionel Sawyer & Collins
50 West Liberty Street
P. O. Box 2610
Reno, Nevada 89505
(702) 788-8666

John A. Powell

Jacqueline A. Berrien

American Civil Liberties
Union Foundation

132 West 43 Street

New York, New York 10036

(212) 944-9800

Dated: August 4, 1988

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1428%3A11. Public record. Not legal advice.