Amicus Curiae Brief — Blanton v. North Las Vegas

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*wprome Court, U.S,

CS) FI

87-1437 5p ry

No.

IN THE

Supreme Court of the United St

OCTOBER TERM, 1987

MELVIN R. BLANTON and MARK D. FRALEY,

Petitioners,

CITY OF NORTH LAS VEGAS. NEVADA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF

THE STATE OF NEVADA

BRIEF OF THE STATE OF NEVADA AS AMICUS

CURIAE IN SUPPORT OF THE RESPONDENT

BRIAN McKAY

Attorney General of

the State of Nevada

BRIAN RANDALL HUTCHINS*

Chief Deputy Attorney General

Criminal Justice Division

Heroes’ Memorial Building

Capitol Complex

Carson City, Nevada 8970!

Telephone: (702) 687-3538

Counsel for Anncus Curiae

State of Nevada

*Attorney of Record

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1987

MELVIN R. BLANTON and

MARK D. FRALEY,

Petitioners,

vs.

CITY OF NORTH LAS VEGAS, NEVADA

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF

THE STATE OF NEVADA

BRIEF OF THE STATE OF NEVADA AS AMICUS

CURIAE IN SUPPORT OF THE RESPONDENT

TOPICAL INDEX

Page

TABLE OF AUTHORITIES i, ii, iii

INTEREST OF AMICUS CURIAE 1

SUMMARY OF THE ARGUMENT 2

ARGUMENT 4

Under Nevada Law, The Misde-

meanor Offense Of Driving

Under the Influence Is Not

A Serious Offense That Would

Entitle A Defendant To A

Jury Trial. 4

A. The Nevada Supreme Court

Properly Applied The "Bright

Line" Test. 5

B. The Nevada Federal District

Court Has Improperly Applied A

"Collateral Consequences"

Analysis. 13

C. The Supreme Court Should

Re-Affirm The Bright Line Test

As To When The Right To Jury

Trial Attaches. 26

CONCLUSION 30

APPENDIX A la

APPENDIX B 8a

APPENDIX C lla

APPENDIX D l4a

APPENDIX E 15a

TABLE OF AUTHORITIES

Cases

Baldwin v. New York,

399 U.S. 66 (1970).

Blanton v. North Las Vegas

Municipal Court,

103 Nev. __s,

748 P.2d 494

(Adv.Op. 135, 1987)-

Bronson v. Swinney,

648 F.Supp. 1094

(D.Nev. 1986).

Codispoti v. Pennsylvania,

418 U.S. 506 (1974).

Duncan v. Louisiana,

391 U.S. 145 (1968).

Frank v. United States,

395 u.S. 147 (1969).

Landry v. Hoepfner,

840 F.2d 1201

(Sth Cir. 1988). 12,

Ludwig v. Massachusetts,

427 U.S. 618 (1976).

Matos v. Rodriguez,

440 F.Supp. 673 (D.P.R.

Muniz v. Hoffman,

422 u.S. 454 (1975).

22,

1976).

24,

10,

22,

TABLE OF AUTHORITIES CONTINUED

Rife v. Godbehere,

814 F.2d 563 (9th Cir. 1987).

Solem v. Stumes,

465 U.S. 638 (1984).

United States v. Arbo,

691 F.2d 862 (9th Cir. 1982).

United States v. Craner,

652 F.2d 23 (9th Cir. 1981).

United States v. Fletcher,

505 F.Supp.

1053

(W.D.Va. 1981).

United States v. Hamdan,

552 F.2d 276

(9th Cir. 1977).

United States v. Jenkins,

734 F.2d 1322

(9th Cir. 1983), cert.

denied, 469 U.S. 1217 (1985).

United States v. Rodriguez-

Rodriguez,

742 F.2d 11

94 (9th Cir. 1984).

Constitutional and

Statutory Provisions

U. S. Const.

18 U.S.C. § 1

(Oct. 30, 1

Nev.Rev.Stat.

amends. VI, XIV

984)

§ 207.010 (1987)

iii

14,

17,

23,

10,

15,

18,

13,

17,

ll,

TABLE OF AUTHORITIES CONTINUED

Nev.Rev.Stat. § 453.336 (1987)

Nev.Rev.Stat. § 483.460 (1987)

Nev.Rev.Stat. § 483.473 (1987)

Nev.Rev.Stat. § 483.475 (1987)

Nev.Rev.Stat. § 483.490 (1987)

Nev.Rev.Stat. § 484.3792 (1987)

Other References

Nevada Drivers Handbook

(rev. 8/31/87)

I. INTEREST OF AMICUS CURIAE

Nevada law presently precludes jury

trials for defendants charged with a first

offense of driving under the influence of

intoxicating liquor or a controlled sub-

stance (DUI). The legislative, judicial

and executive branches of the State of

Nevada have, respectively, enacted laws,

decided controversies, and enforced sta-

tutes of this State based upon the evo-

lution of United States Supreme Court law

regarding the distinction between "petty"

and “serious” offenses and the determina-

tion as to whether a defendant is entitled

to a jury trial. The Nevada Supreme Court

followed this Court's "bright line” test

and determined that jury trials are not

constitutionally required when the maximum

possible jail time upon conviction is six

months. A departure from the “bright

line” test would have severe consequences

for the State of Nevada's legal system

which would involve a restructuring of its

entire judicial and legislative framework.

Should this Court abandon its "bright

line” test in favor of a “collateral con-

sequences” analysis, Nevada courts may

have to determine whether such analysis

also applies to other crimes previously

considered as "petty" offenses. The Nev-

ada Legislature would also have to-con-~

sider whether its attempts to provide

judges with options for punishment, educa-

tion and rehabilitation of those violating

what were “petty” offenses will now be

construed as creating “collateral conse-

quences” which might require jury trials.

II. SUMMARY OF ARGUMENT

The existence of a federal consti-

tutional right to a jury trial in a crim-

inal proceeding turns upon the character-

izaticen of the offense charged as “ser-

ious" or “petty.” In determining whether

an offense is serious or petty, courts

o2e

generally look to the maximum authorized

penalty. It is well established that

offenses punishable by up to six months

imprisonment are “petty” and are not sub-

ject to the sixth and fourteenth amendment

jury trial requirement. For the purpose

of a sixth amendment analysis, the maximum

authorized penalty provides the only ob-

jective indication of the seriousness of

the offense. This objective standard

promotes uniformity, objectivity and effi-

cient judicial administration.

A sixth amendment analysis predicated

upon a review of the collateral conse-

quences of a conviction is inappropriate.

This analysis ignores the legislature's

considered judgment as to the seriousness

of the offense and the state's overriding

interest in efficient law enforcement and

simplified judicial administration re-

sulting from the availability of speedy

and inexpensive non-jury trials.

oj-

First offense DUI is punishable in

Nevada by up to six months imprisonment

and a fine of up to $1000 or both. This

statutory penalty, established by the

Nevada Legisleture, provides the clearest

and most consistent judgment as to the

seriousness of the offense. The offense

of driving under the influence falls with-

in the historic and statutory definitions

of “petty” offense and, therefore, there

is no federal constitutional right to a

jury trial.

III. ARGUMENT

Under Nevada Law, The Misdemeanor

Offense Of Driving Under the Influ-

ence Is Not A Serious Offense That

Would Entitle A Defendant To A Jury

Trial.

In Nevada, a first offense of driving

under the influence is considered to be a

misdemeanor. Punishment for a conviction

includes payment of tuition for and atten-

dance in an educational course on abuse of

alcohol and controlled substances; a sen-

tence of imprisonment for not less than

two days nor more than six months or per-

formance of forty-eight hours of community

service; and, a fine of not less than $200

nor more than $1000. Nev.Rev.Stat. §

484.3792 (1987) (reproduced in Appendix

A). In addition, a conviction results in

a ninety-day revocation of the privilege

to drive. Id. § 483.460(1)(c) (reproduced

in Appendix p).! The prior decisions of

this Court dictate that a DUI defendant is

not constitutionally entitled to a jury

trial.

A. The Nevada Supreme Court Properly

Applied The “Bright Line” Test.

The existence of a constitutional

right to a jury trial in a criminal pro-

lohese penalties also are set forth

clearly on pages ten and eleven of the

Nevada Driving Handbook, with which all

prospective Nevada drivers must be fami-

liar in order to pass a required written

examination. Nevada Driving Handbook at

10-11 (rev. 8/31/87) (reproduced in Ap-

pendix C).

ceeding turns upon the characterization of

the offense charged as “serious” or “pet-

ty." In Duncan v. Louisiana, 391 U.S. 145

(1968), this Court held that “the Four-

teenth Amendment guarantees a right of

jury trial in all criminal cases which -

were they to be tried in a federal court -

would come within the Sixth Amendment

guarantee." Id. at 149 (footnote omit-

ted). The Court also reaffirmed the long-

established view that there is a category

of petty offenses “which is not subject to

the Sixth Amendment jury trial provision

and should not be subject to the Four-

teenth Amendment jury trial requirement

here applied to the States." Id. at 159.

The Court further found that “the penalty

authorized for a particular crime is of

major relevance in determining whether it

is serious or not and may in itself, if

severe enough, subject the trial to the

mandates of the Sixth Amendment." Id.

In subsequent decisions, the Supreme

Court concluded that offenses carrying a

punishment in excess of six months impri-

sonment are “serious” and must be tried

before a jury. Codispoti v. Pennsylvania,

418 U.S. 506, 512 (1974); Baldwin v. New

York, 399 U.S. 66, 68 (1970). In Baldwin,

the Court primarily focused on the issue

of imprisonment and the necessity of ob-

jective criteria on which to make a deter-

mination. The Court noted that the over-

whelming practice in the nation was to

provide a jury trial in any case where the

defendant faced a possible sentence in

excess of six months. The Court stated:

This near-uniform judgment of

the Nation [that a jury trial is

provided when an offense is

punishable by imprisonment for

more than six months] furnishes

~ — — ae objective cri-

erion by ch a line could

ever be drawn -- on the basis of

the possible penalty alone --

between offenses that are and

that are not regarded as "seri-

ous” for purposes of trial by

jury.

Baldwin v. New York, 399 U.S. at 72-73

(emphasis added). The Court also indi-

cated that the six month dividing line was

in accordance with the federal statutory

definition of “petty offense" contained in

section 1 of Title 18 to the United States

Code. Id. at 73 n.21.

In establishing the dividing line

between “petty” and “serious” offenses at

six months, and hence the right to a jury

trial, the Court noted that even “the

prospect of imprisonment for however short

a time will seldom be viewed by the ac-

cused as a trivial or ‘petty’ matter and

may well result in quite serious reper-

cussions affecting his career and his

reputation.” Id. at 73. The Court recog-

nized, however, that the disadvantages

resulting from the imposition of a six

month dividing line “may be outweighed by

the benefits that result from speedy and

inexpensive non-jury adjudications.” Id.

In Codispoti, the Court stated that "our

decisions have established a fixed divi-

ding line between petty and serious of-

fenses: those carrying a sentence of more

than six months are serious crimes and

those carrying a sentence of six months or

less are petty crimes." Codispoti v.

Pennsylvania, 418 U.S. at 512 (emphasis

added).

In Muniz v. Hoffman, 422 U.S. 454

(1975), the Supreme Court first considered

the relationship of the amount of a fine

to the determination of whether an offense

was "serious" or “petty.” At the outset,

the Court noted that, in determining whe-

ther an offense was “serious” or "petty,"

the Court has traditionally referred to

the definition of a petty offense con-

tained in federal statutes, 18 U.S.C. §

(1) (3), which, at the time Muniz was de-

cided, defined petty offenses as those

crimes “the penalty for which does not

exceed imprisonment for a period of six

months or a fine of not more than $500 or

both." Id. at 476. See also Baldwin v.

New York, 399 U.S. at 72-73 n.21. The

Court rejected, however, the proposition

that a crime must be considered serious if

it is punishable by a fine in excess of

$500. Id. The Court noted that “impri-

sonment and fines are intrinsically dif-

ferent" and held that a $10,000 fine of a

13,000 member union did not render an

otherwise petty offense serious. Muniz v.

Hoffman, 422 U.S. at 477.

The Ninth Circuit Court of Appeals

relied more strictly upon the provisions

of 18 U.S.C. Section 1(3) and held that a

fine in excess of $500 renders an other-

wise petty offense serious, thereby enti-

tling the defendant to a jury trial.

United States v. Hamdan, 552 F.2d 276,

279-80 (9th Cir. 1977). Recognizing the

historic devaluation of money, however,

-10-

the court stated:

The value of money changes, of

course, as does the wealth of

the economy. But Congress can

be expected to adjust the mone-

tary standard of (18 U.S.C.]

section 1(3) so that it will

continue to represent a fair

judgment as to the appropriate

line between petty and serious

offenses.

Id. at 280 n.3. As predicted, Congress

subsequently amended the definition of a

petty offense to include any misdemeanor

the punishment for which does not exceed

six months imprisonment or a fine of not

more than $5000.00 or both. See 18 U.S.C.

§ 1(3) (as amended October 30, 1984, Pub.

L. 98-596, § 8, 98 Stat. 3138) (reproduced

as Appendix D). The Ninth Circuit Court

of Appeals has nevertheless retained $500

as the fixed dividing line between petty

and serious offenses. See Rife v. Godbe-

here, 814 F.2d 563, 565 (9th Cir. 1987)

(misdemeanor punishable by up to a $1000

fine is a serious offense and therefore

-ll-

the defendant is entitled to a jury

trial).

Recently, the fifth circuit in Landry

v. Hoepfner, 840 F.2d 1201 (5th Cir.

1988), stated that a $500 or $1000 fine

did not make a difference:

As noted, the focus is on the

confinement, not the fine; fur-

ther, Muniz sustained a_ ten

thousand dollars fine, and Con-

gress then found five thousand

dollars appropriate for petty

offenses by individuals. Viewed

historially, it is evident that,

because of inflation, one thou-

sand dollars today (or in 1984)

is worth substantially less than

five hundred dollars was both

when Congress first used that

figure in 18 U.S.C. § 1 (which

was at least as early as 1948)

and when Baldwin was decided in

1970.

Id. at 1216 n.30.

Under the Nevada Statute at issue

here, a defendant charged with first of-

fense DUI is exposed to a maximur punish-

ment of not more than six months in jail

and a fine of not more than $1000. In

determining whether the defendant has a

@12e

constitutional right to a jury trial, this

Court should re-affirm the "bright line"

test approved by the decisions in Baldwin,

Codispoti, Muniz and Hamdan and uphold the

decision of the Nevada Supreme Court which

followed this rationale. Because the

maximum potential punishment is less than

six months and a fine considerably less

than the $5000 limit contained in 18

U.S.C. § 1(3), the offense must be char-

acterized as petty. Therefore, there is

no federal constitutional right to a jury

trial. United States v. Fletcher, 505

F.Supp. 1053, 1054 (W.D.Va. 1981); Matos

v. Rodriguez, 440 F.Supp. 673, 676 (D.P.R.

1976).

B. The Nevada Federal District Court Has

Improperly Applied A "Collateral Conse-

quences” Analysis.

Federal courts have split on the

issue of whether DUI is a “serious” of-

fense such that the Constitution requires

-13-

that a jury trial be provided. A few

courts have concluded that DUI on a public

road is malum in se and, additionally,

that the so-called “collateral conse-

quences” attendant upon a conviction (man-

datory incarceration, revocation of dri-

vers license, system of increasing pen-

alties for subsequent offenses, increasing

insurance premiums and public notoriety)

justify classifying DUI as serious. See

United States v. Craner, 652 F.2d 23 (9th

Cir. 1981); Bronson v. Swinney, 648 F.

Supp. 1094 (D. Nev. 1986).

In Bronson v. Swinney, the district

court held that a defendant charged with a

first offense DUI pursuant to section

484.3792 of the Nevada Revised Statutes

had a federal constitutional right to a

jury trial. Bronson v. Swinney, 648 F.2d

at 1100. In reaching its decision, the

court relied heavily upon the ninth cir-

cuit's decision in Craner. Id. at 1097-

-14-

98. The district court in Bronson noted

that the maximum authorized penalty was

the most important factor in determining

whether an offense is serious or petty for

sixth amendment analysis, but held that

other factors such as the collateral con-

sequences of a conviction, nature of the

offense and treatment of the offense at

common law could also be considered. Id.

at 1098-99. The court concluded that the

consequences of a conviction for DUI,

which included an automatic driver's li-

cense revocation, a mandatory jail sen-

tence, a system of increasing penalties

for subsequent convictions, and “the op-

probrious nature of the offense," indicate

it is considered a "“serious" offense by

the people of the State of Nevada and,

therefore, the sixth and fourteenth amend-

ments require a jury trial. Id. at 1100.

The district court's reliance on

Craner was misplaced. In Craner, the

= |=

ninth circuit held that DUI within Yose-

mite National Park, which was punishable

by six months imprisonment or a $500 fine

cr both, was a “serious” offense for which

the Federal Constitution required a jury

trial. This penalty was set by the Secre-

tary of the Interior and not by Congress.

As such, the court concluded that there

was no assurance that the penalty repre-

sented "a considered legislative judgment

of the gravity of the offense." United

States v. Craner, 652 F.2d at 25. The

court held that the possibility of having

a drivers license revoked by the State of

California as a4 result of the federal

court conviction constituted an "addi-

tional consequence" which justified clas-

sifying the crime as serious and entitling

the defendant to a jury trial. Id. at

25-26, 28.

The Craner decision, however, did net

Create a per se rule that the collateral

~16e

consequences of a misdemeanor conviction

transform a “petty” offense into a "“seri-

ous" offense thereby requiring a jury

trial. United States v. Rodriguez-

Rodriguez, 742 F.2d 1194, 1195 (9th Cir.

1984). There are two significant factors

which distinguish the present cases from

Craner. First, the offense of DUI has

been classified by the Nevada Legislature

as a misdemeanor. This constitutes "a

considered legislative judgment of the

gravity of the offense." United States v.

Arbo, 691 F.2d 862, 864 (9th Cir. 1982).

In Craner, “(g]jiven the lack of legisla-

tive judgment, there was good reason ‘to

diminish the importance of the maximum

penalty in determining whether' the of-

fense was ‘petty’ and to ‘focus on the

additional consequences that attend[ed)

conviction of [the] offense.'" Id.,

quoting United States v. Craner, 652 F.2d

at 28 (Sneed, J., concurring).

olJe

In light of the Nevada legislative

judgment of the gravity of the offense,

the importance of the maximum penalty is

not diminished and, therefore, a court

should not consider the collateral con-

sequences of the conviction. See United

States v. Craner, 652 F.2d at 28 (Sneed,

J., concurring) (if the maximum penalty

reflected a considered legislative judg-

ment, DUI offense would be considered

petty regardless of the collateral conse-

quences).

The most recent federal court to

consider this issue was the fifth circuit

in Landry. Landry was convicted of vio-

lating Lc isiana Revised Statutes Section

14:98 which authorizes a maximum sentence

of six months’ imprisonment and a $500.00

fine. The statute also provides for a

minimum incarceration of ten days unless

the offender participates in both driver

improvement and substance abuse programs,

-18-

and performs community service work. The

offender is ordinarily assessed admini-

strative costs.

The Landry court stated its approval

of the United States Supreme Court's

"bright line” test and noted, “the Court

has never held or stated any crime is a

‘serious’ rather than a 'petty' offense on

the basis of any criteria other than whe-

ther its maximum authorized confinement

exceeded six months or whether it was

indictable at common law." Landry v.

Hoepfner, 840 F.2d at 1209. The Landry

court stated that, to add a third cri-

terion -- the judicial perception of the

seriousness of the offense “is to inject

an inherently and inescapably subjective

and imprecise factor into the calculus.

Essentially, this would involve judges in

applying the same sort of criteria that

the legislative branch did in the first

place when it fixed the maximum sentence."

-19-

Id. The court emphasized the right of

each state legislature to determine what

conduct shall be punishable within its

borders: "What is ‘serious’ in Vermont

may not be ‘serious’ in Louisiana, in

terms either of a particular problem's

concrete manifestations or of the popular

perception or evaluation of it in each of

those states." Id. at 1210. While re-

cognizing the gravity of the problem of

drunken drivers, the Landry court none-

theless stated,

The nature of the governmental

response to the problem... is

a matter for legislative deter-

mination .. . . Moreover, the

problem is not necessarily the

same in each state. . . and even

if it were, this would not re-

guire each state to address it

in the same fashion. There is

more than one way to skin a cat.

Id. at 1213 n.25.

The argument that recent years have

been characterized by a strong public

outcry against drunk drivers does not make

-20-

the offense malum in se as DUI may not, in

and of itself, result in harm.” Driving

under the influence of liquor is not an

inherently evil and injurious act as the

act itself does not necessarily injure

another person and is not universally

considered as immoral. Nonetheless, driv-

ing under the influence carries enough

potential for harm that it is, in the

State of Nevada as well as in other

states, prohibited conduct. And the leg-

islature of each state has, after evaluat-

ing various relevant factors, such as

public opinion, the state's judicial

framework, and the practicality and desir-

2malum In Se is defined as a “wrong in

itself; an act .. . involving illegality

from the very nature of the transaction,

upon principles of natural, moral, and

public law. An act .. . inherently and

essentially evil, that is, immoral in its

nature and injurious in its consequences

- « « « Such are most or all of the

offenses cognizable at common law. . .as

murder, larceny, etc." Black's Law

Dictionary at 865 (5th ed. 1979).

-2l-

ability of various methods of punishing

the offense, enacted code sections appro-

priate to that state.

The Nevada Supreme Court, in deciding

_ this case below, cited numerous other

jurisdictions which had reached the con-

clusion that there is no right to jury

trial for misdemeanor DUI defendants.

Blanton v. North Las Vegas Muncipal Court,

103 Nev. ’ , 748 P.2d 494, 503 (Adv.

Op. at 14, 1987). The Nevada Supreme

Court further stated that ". . .we have

respectfully concluded that Bronson, and

the decisions of the 9th Circuit panels

upon which the federal district court

relied, represent an unnecessary and un-

warranted expansion of the Supreme Court's

_ holding in Baldwin.” Id. at , 748 P.2d

at 500 (Adv.Op. at 10).

A second factor distinguishing the

present cases from Craner is the existence

of a significant fiscal impact on the

=22<

State of Nevada. The United States Su-

preme Court has recognized that the

six-month dividing line between petty and

serious offenses strikes a balance between

the legitimate interests of the state and

the rights of the defendant. See Duncan

v. State of Louisiana, 391 U.S. at 160.

See also Baldwin v. New York, 399 U.S. at

73.

In the present case, it is respect-

fully submitted that the balancing of

interests tips significantly in the favor

of the State of Nevada. Even the court in

Bronson noted the significant financial

impact its decision would have upon the

state, counties and municipalities.

Bronson v. Swinney, 648 F.Supp. at 1100.

First offense DUI prosecutions in Nevada

are not a “comparative rarity” as was the

case in Craner. There is a further impact

upon the interests of the State of Nevada

by the fact that municipal courts, which

=23-

also handle misdemeanor DUI cases, are

precluded by law from holding jury trials.

Nev.Rev.Stat. § 266.550 (1987). Accord-

ingly, as noted by the Nevada Supreme

Court, the benefits of efficient law

enforcement and financial savings from

non-jury trials clearly outweigh the

disadvantages to the individual defendant

charged with a petty offense. Blanton v.

North Las Vegas Municipal Court, 103 Nev.

at __, ~2748 P.2d at 501-02 (Adv.Op. at

11-14).

If this Court decides to abandon the

bright line test in favor of a collateral

consequences type of review, it is re-

spectfully requested that the court con-

sider several factors, not considered by

the court in Bronson, which mitigate the

impact of the asserted “collateral conse-

quences." First of all, most first time

offenders are receiving a sentence sub-

stantially less than the maximum potential

-24-

sentence. In the vast majority of these

cases, the defendants are receiving a jail

term of less than five days and a fine of

approximately $500. Community service is

also available in lieu of incarceration.

Nev.Rev.Stat. § 484.3792(1) (A)(2) (1987).

As a result of this alternative, many

first-time offenders avoid serving any

jail time. Lastly, the inconvenience of

driver's license revocation can be mini-

mized by the issuance of a restricted

license. Id. § 483.490 (1987) (reproduced

as Appendix E). A defendant may receive a

restricted license to drive a motor ve-

hicle to and from work or in the course of

his work, and to acquire food and medical

care for himself or an immediate family

member after half the period of the revo-

cation has expired. Id.

As a practical matter, the conse-

quences which face a first-time DUI of-

fender in Nevada represent what the people

of this state, through their legislature,

believe to be an effective and innovative

method of decreasing the probability that

a second DUI offense will occur. A great

deal of flexibility is given the judge in

fashioning a sentence appropriate to the

circumstances, so that education and reha-

bilitation rather than strictly punish-

ment-by-incarceration may be accomplished.

The collateral consequences attendant to a

first-time DUI conviction in Nevada are

for the most part treated as alternatives

to incarceration, not additions to incar-

ceration. The federal district court

failed to consider these factors properly

in Bronson. That decision should not be

followed.

C. The Supreme Court Should Re-Affirm The

Bright Line Test As To When The Right To

Jury Trial Attaches.

Only the “bright line test" which

looks to the maximum authorized penalty,

-~26-

promotes the interests of uniformity,

objectivity and practical judicial admini-

stration. A collateral consequences re-

view, similar to that employed by the

courts in Craner and Bronson, is not an

equitable or practical method of deter-

mining whether there is a constitutional

right to a jury trial. As such, amicus

respectfully suggests that the bright line

test be applied to resolve the issue in

this case.

Given the complexity of our modern

criminal statutes, almost every misde-

meanor conviction carries collateral con-

sequences, the most serious of which may

subject the defendant to a more severe

penalty if subsequent crimes are commit-

ted. See id. § 207.010 (repeat misde-

meanor offenses punishable as felony). In

addition, drivers convicted of multiple

driving offenses within one year can be

subjected to license revocation pursuant

———

to the state's demerit points system. Id.

$§ 483.473; 483.475. The punishment for a

person under twenty-one years of age con-

victed of possession of less than one

ounce of marijuana includes the possible

suspension of his or her driver's license

for up to six months. Id. § 453.336(3)

(a) (2).

Similarly, the violation of any crim-

inal statute must be viewed by society as

a serious matter. If the court adopts a

collateral consequences analysis, it may

be necessary to review each misdemeanor

offense to determine if the consequences

of a particular conviction render the

offense “serious.” Such a procedure would

be subjective, burdensome and unworkable.

United States v. Hamden, 552 F.2d at 279-

80.

The subjectiveness and unpredictabil-

ity of the collateral consequences analy-

sis is further evidenced by a review of

-28-

what courts consider to be significant

collateral consequences. Courts have held

that an extended sentence of probation,

which is potentially a very significant

infringement of personal freedom, is in-

sufficient to classify a petty offense as

serious. See Frank v. United States, 395

U.S. 147 (1969); United States v. Jenkins,

734 F.2d 1322 (9th Cir. 1983), cert. den-

ied, 469 U.S. 1217 (1985). Similarly, the

notably serious collateral consequences of

conviction for crossing the border ille-

gally does not entitle an alien to a jury

trial. United States v. Rodriguez~Rodri-

guez, 742 F.2d at 1195.

The Supreme Court has consistently

held that the maximum authorized penalty

provides the clearest, most objective

indication of the seriousness of the of-

fense. See Ludwig v. Massachusetts, 427

U.S. 618, 624-625 (1976) (no right to jury

trial for petty offenses which is defined

-29-

by reference to the maximum authorized

punishment); Frank v. United States, 395

U.S. at 148 (severity of the authorized

penalty is the most relevant indication of

the seriousness of an offense). The right

to a jury should not be dependent upon the

subjective values of an individual judge.

The maximum authorized sentence is the

only objective benchmark of the serious-

ness of a criminal offense. This standard

promotes the interest of uniformity, objec-

tivity and judicial administration.”

CONCLUSION

Based upon the analysis above, the

State of Nevada as amicus curiae

respectfully urges the Court to affirm the

judgment below of the Nevada Supreme

Court.

’ Should this Court decide to reverse

the decision of the Nevada Supreme Court

and hold that a collateral consequences

analysis is appropriate, the Court at some

time will have to decide whether its ru-

ling is retroactive. See Solem v. Stumes,

465 U.S. 638, 643 (1984).

-30-

Respectfully submitted,

BRIAN McKAY

Attorney General of the

State of Nevada

BRIAN RANDALL HUTCHINS*

Chief Deputy Attorney General

Criminal Justice Division

Heroes' Memorial Building

Capitol Complex

Carson City, Nevada 89701

Telephone: (702) 687-3538

Counsel for Amicus Curiae

State of Nevada

*Attorney of Record

APPENDICES

APPENDIX A

Nev.Rev.Stat. § 484.3792 (1987)

Section 484.3792: Driving under the

influence of intoxicating liquor or

controlled substance: Penalties;

segregation of offender; probation,

suspension of sentence and plea bargaining

restricted; intermittent confinement;

consecutive sentences.

1. Any person who violates the provi-

sions of NRS 484.379:

(a) For the first offense within 7

years, is guilty of a misdemeanor.

Unless he is allowed to undergo treatment

as provided in NRS 484.3794, the court

shall:

(1) Except as otherwise provided in

subsection 6, order him to pay tuition for

an educational course on the abuse of

alcvuhol and controlled substances approved

by the department and complete the course

within the time specified in the order and

the court shall notify the department if

he fails to complete the course within the

specified time;

(2) Unless the sentence is reduced

pursuant to NRS 484.3794, sentence him to

imprisonment for not less than 2 days nor

more than 6 months in jail, or to perform

48 hours of work for the community while

dressed in distinctive garb which identi-

fies him as having violated the provisions

of NRS 484.379; and

(3) Fine him not less than $200 nor

more than $1,000.

The teacher of the educational course

shall evaluate the offender and, if he

finds the offender is an abuser of alcohol

or controlled substances, he shall prompt-

ly report his findings to the court for

its use.

(b) For a second offense within 7 years,

is guilty of a misdemeanor. Except as

provided in NRS 484.3794, the court shall

sentence him to imprisonment for not less

than 10 days nor more than 6 months in

jail and fine him not less than $500 nor

more than $1,000.

within 7 years, shall be punished by

imprisonment in the state prison for not

less than 1 year nor more than 6 years and

must be further punished by a fine of not

less than $2,000 nor more than $5,000. An

offender so imprisoned must be segregated

insofar as practicable from offenders

whose crimes were violent, and must be

assigned to an institution of minimum

security or, if space is available, to an

honor camp restitution center or similar

facility.

2. Any offense which occurred within 7

years immediately preceding the date of

the principal offense or after the prin-

cipal offense constitutes a prior offense

for the purposes of this section when evi-

denced by a conviction, without regard to

the sequence of the offenses and convic-

tions. The facts concerning a prior

offense must be alleged in the complaint,

indictment or information, must not be

read to the jury or proved at trial but

must be proved at the time of sentencing

and, if the principal offense is alleged

to be a felony, must be shown at the

preliminary examination or presented to

the grand jury.

3. No person convicted of violating the

provisions of NRS 484.379 may be released

on probation, and no sentence imposed for

violating those provisions may be suspend-

ed except, as provided in NRS 4.373 and

5.055, a portion of the sentence imposed

that exceeds the mandatory minimum. 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 cannot be proved at

the time of trial.

4. Any term of confinement imposed

under the provisions of this section may

be served intermittently at the discretion

of the judge or justice of the peace,

except that a person who is convicted of a

second or subsequent offense ‘within 7

years must be confined for at least one

segment of not less than 48 consecutive

hours. This discretion must be exercised

after considering all the circumstances

surrounding the offense, and the family

and employment of the offender, but any

sentence of 30 days or less must be served

within 6 months after the date of convic-

tion or within 6 months after the date of

sentencing if the offender underwent

treatment pursuant to NRS 484.3794. Any

time for which the offender is eoptines

must consist of not less than 24 consecu-

tive hours.

5. Jail sentences simultaneously

imposed under this section and NRS 483.560

or 485.330 must run consecutively.

6. If the person who violated the

provisions of NRS 484.379 possesses a

driver's license issued by a state other

than Nevada and does not reside in Nevada,

in carrying out the provisions of subpara-

graph (1) of paragraph (a) of subsection

1, the court shall:

(a) Order the person to pay tuition for

and submit evidence of completion of an

educational course on the abuse of alcohol

and controlled substances approved by a

governmental agency of the state of his

residence within the time specified in the

order; or

(b) Order him to complete an educational

course by correspondence on the abuse of

alcohol and controlled substances approved

by the department within the time speci-

fied in the order, and the court shall

notify the department if the person fails

to complete the assigned course within the

specified time.

7. As used in this section, unless the

context otherwise requires, “offense”

means a violation of NRS 484.379 or

484.3795 or homicide resulting from the

@riving of a vehicle while under the

influence of intoxicating liquor or a

controlled substance, or the violation of

a law of any other jurisdiction which

prohibits the same conduct.

APPENDIX B

Nev.Rev.Stat. § 483.460

Section 483.460 Mandatory revocation of

license, permit or privilege to drive;

periods of revocation.

1. Unless otherwise provided by stat-

ute, the department shall revoke the

license, permit or privilege of any driver

upon receiving a record of his conviction

of any of the following offenses, when

that conviction has become final, and the

driver is not eligible for a license,

permit or privilege to drive for the

period indicated:

(a) For a period of 3 years if the

offense is:

(1) Violation of NRS 484.3795 or

subsection 2 of NRS 484.377 or homicide

resulting from driving a vehicle while

under the influence of intoxicating liquor

or a controlled substance.

(2) A third or subsequent violation

within 7 years of NRS 484.379.

(b) For a period of 1 year if the

offense is:

(1) Any other manslaughter resulting

from the driving of a motor vehicle or

felony in the commission of which a motor

vehicle is used, including the unlawful

taking of a motor vehicle.

(2) Pailure to stop and render aid as

required under the laws of this state in

the event of a motor vehicle accident

resulting in the death or bodily injury of

another.

(3) Perjury or the making of a false

affidavit or statement under oath to the

department under NRS 483.010 to 483.630,

inclusive, or under any other law relating

to the ownership or driving of motor

vehicles.

(4) Conviction, or forfeiture of bail

not vacated, upon three charges of reck-

less driving committed within a period of

12 months.

(5) A second violation within 7 years

of NRS 484.379 and the driver is not

eligible for a restricted license during

any of that period.

offense is a first violation within 7

years of NRS 484.379.

10a

APPENDIX C

Nevada Driving Handbook (Rev. 8-87)

DRINKING AND DRIVING

The penalty for driving under the

influence of alcohol and/or drugs is

severe. There are two penalties which can

occur with each offense. First, an

administrative penalty (license

revocation), secondly, a criminal penalty

(court conviction).

Administrative Penalty

When a law enforcement officer

requests a driver to submit to a chemical

test of his blood alcohol content, the

driver is required to take the test by law

(see Implied Consent Law, page 11).

If the driver is found to have 0.10

or more percent blood alcohol content ,the

driver's privilege to drive is immediately

revoked. The law enforcement officer is

lla

authorized to take the license at the time

29f arrest.

The period of revocation is 90 days.

Criminal Penalty

First offense within seven years:

Jail sentence: Two days to six

months (or 48 hours community service) ;

Fine: $200 to $1,000;

DUI school: Tuition average is

$150;

License revocation: 90 days.

Second offense within 7 years:

Jail sentence: Ten days to six

months;

Fine: $500 to $1,000;

License revocation: One year.

Third or more offense within 7 years:

Prison sentence: One year to six

years;

Fine: $2,000 to $5,000;

12a

License revocation: Three years.

DUI causing death or serious injury:

Prison sentence: One year to twenty

years;

Fine: $2,000 to $5,000;

License revocation: Three years.

If an individual receives a license

revocation for the administrative penalty

and also for the criminal penalty, the

revocation periods run concurrently.

A restricted license can be issued

after serving one-half of the revocation

period, however, a restricted license

cannot be given on a second offense.

l3a

APPENDIX D

Section 1, 18 U.S.C., provides:

Notwithstanding any Act of Congress

to the contrary:

(1) Any offense punishable by death

or imprisonment for a term exceeding one

year is a felony.

(2) Any other offense is a misde-

meanor.

(3) Any misdemeanor, the penalty for

which, as set forth in the provision defin-

ing the offense, does not exceed imprison-

ment for a period of six months or a fine

of not more than $5,000 for an individual

and $10,000 for a person other than an

individual, or both, is a petty offense.

l4a

APPENDIX E

Nev.Rev.Stat. § 483.490 (1987)

Section 483.490 Period of suspension or

revocation: issuance of restricted license

upon evidence of hardship; penalties.

1. Unless otherwise provided by specific

statute, the department may not suspend a

license for a period of more than 1 year.

2. After a driver's license has been

suspended or revoked for an offense other

than a second violation within 7 years of

NRS 484.379 and half the period during

which the driver is not eligible for a

license has expired, the department may,

unless the statute authorizing the suspen-

sion prohibits the issuance of a restrict-

ed license, issue a restricted driver's

license to an applicant permitting the

applicant to drive a motor vehicle:

(a) To and from work or in the course of

his work or both; or

(b) To acquire supplies of medicine or

food or receive regularly scheduled

15a

medical care for himself or a member of

his immediate family. Before a restricted

license may be issued, the applicant must

submit sufficient documentary evidence to

satisfy the department that a severe

hardship exists because the applicant has

no alternative means of transportation and

that the severe hardship outweighs the

risk to the public if he is issued a

restricted license.

3. A driver who violates a condition of

a restricted license issued under sub-

section 2 or by another jurisdiction is

guilty of a misdemeanor, and if his

license was suspended or revoked for a

violation of NRS 484.379, 484.3795,

484.384 or homicide resulting from driving

@ vehicle while under the influence of

intoxicating liquor or a_- controlled

substance, or the violation of a law of

any other jurisdiction which prohibits the

same conduct, he shall be punished in the

l6a

manner provided by subsection 2 of NRS

483.560.

4. The periods of suspensions and

revocations under this chapter and under

NRS 484.384 must run consecutively, except

as provided in NRS 483.465 and 483.475,

when the suspensions must run concurrent-

ly.

5. Whenever the department suspends or

revokes a license, the period of suspen-

sion, or of ineligibility for a license

after the revocation, begins upon the

effective date of the revocation or

suspension as contained in the notice

thereof.

17a

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